Page No.# 1/4 GAHC010090672025 2025:GAU-AS:6305 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1356/2025 MD IQBAL KHAN S/O-MUHAMMAD SARBAT KHAN, R/O-VILL-KALAROOSE, P.O AND P.S-KALAROOSE, DIST-KUPWARA, JAMMU AND KASHMIR, PIN-193222. VERSUS THE UNION OF INDIA REPRESENTED BY SC,NCB Advocate for the Petitioner : M KALITA, H. BARUAH,R. BARMAN,MR. B BARMAN Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 20.05.2025 Heard learned counsel Mr. B. Barman for the petitioner Md. Iqbal Khan. 2. The petitioner has filed this application under Section 483 of BNSS, 2023, with prayer for bail as he is behind bars since 09.04.2021 in connection Page No.# 2/4 with the NDPS Case No.145/2021, arising out of NCB Crime No.09/2021, under Sections 8(c) read with Section 20(b)(ii)(C) and 29 of NDPS Act 3. Heard Mr. S. C. Keyal, learned Standing Counsel for NCB. 4. It is submitted on behalf of the petitioner that 3 out of 10 witnesses have been examined so far and only 1 witness has been cross-examined, whereas the other 2 witnesses are yet to be cross-examined. The petitioner is behind bars for 4 years 1 month and 11 days. 5. It is submitted that the trial is dragging at a snail’s pace and the petitioner’s right to personal liberty has been curtailed due to the procrastination of trial by the court or by the prosecution. 6. On the contrary, learned standing counsel, NCB has raised serious objection, stating that trial has been procrastinated by the petitioner and not by the court or by the prosecution. The co-accused were absconding, and finally this case was split up on 29.09.2023, which clearly reflects that the trial commenced only after the case was split up and charges were framed on 10.01.2024. 7. The petitioner has relied on the decision of the Hon’ble Supreme Court in State (By NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta and Anr. and other petitioners and respondents reported in (2022) 0 Supreme(SC) 56, wherein it has been observed that:- “11. However, the evidence brought before us against Mohammed Afzal [A- 2], respondent in SLP (Crl.) No. 1569/2021, subject matter of the second case i.e., NCB Case FN No. 48/01/07/2019/BZU, who was granted bail vide order dated 08th January, 2020, will have to be treated on an entirely different footing. There are specific allegations levelled against the said respondent regarding recovery of substantial commercial quantities of drugs from a rented accommodation occupied by him pursuant to which he was arrested on 16th June, 2019. This aspect has been completely Page No.# 3/4 overlooked while passing the order dated 08th January, 2020 wherein, the only reason that appears to have weighed with the High Court for releasing him on bail is that his case stands on the same footing as A-1, A- 3 and A-4 who had been enlarged on bail vide orders dated 11th October, 2019, 16th September, 2019 and 09th September, 2019, in connection with the second case registered by the Department. We are of the firm view that A-2 cannot seek parity with the aforesaid co-accused and no such benefit could have been extended to him in view of Section 37 of the Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under the NDPS Act. That being the position, the petitioner-NCB succeeds in SLP (Crl.) No. 1569/2021. The bail granted to the respondent-MohmmedAfzal [A-2] is cancelled forthwith at this stage and he is directed to surrender before the Sessions Court/Special Judge (NDPS) within a period of two weeks, for being taken into custody.” 8. It is thereby submitted by the learned standing counsel that the petitioner’s prayer for bail on the ground of parity as co-accused has already been enlarged on bail can be dismissed. 9. It is further submitted that the petitioner is facing trial for transportation of 411.390 kgs of ganja in a truck, which reflects the gravity and heinousness of the offence. 10. I have considered the submissions at the bar with circumspection. 11. The petitioner is behind bars for 4 years 1 month and 11 days. Only 1 witness has been cross-examined and discharged so far. 9 witnesses are yet to be examined. 12. It appears that culmination of trial appears to be remote. 13. I have also relied on the decision of the Hon’ble Supreme Court in Rabi Prakash Vs. The State of Odisha reported in 2023 SCC Online SC 1109, wherein it has been observed that:- “4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the Page No.# 4/4 petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 14. In the light of the decision of the Hon’ble Supreme Court in the case of Rabi Prakash (supra), the petitioner is enlarged on bail of Rs.1,00,000/- with 2 (two) local sureties of like amount to satisfaction of the learned trial Court under the conditions that:- (i)The petitioner shall co-operate with the trial. (ii)The petitioner shall no jump the bail, and (iii)The petitioner shall refrain from such activities with which he is alleged. 15. On breach of any of the bail conditions, the Court is at liberty to cancel the bail granted to the petitioner. 16. In terms of the above observation, the Bail Application stands disposed of. JUDGE Comparing Assistant