Page No.# 1/10 GAHC010092022025 2025:GAU-AS:7139 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1402/2025 SHAMIR UDDIN S/O KALA MIA R/O VILL-SWAPUR GOAN JOYNAGAR HOJAI, P.O. MURAJHAR P.S. MURAJHAR DOBOKA, HOJAI DIST. NAGAON, ASSAM -782445. VERSUS THE UNION OF INDIA REP BY THE LEARNED SC, NARCOTICS CONTROL BUREAU Advocate for the Petitioner : MR Z KAMAR, MR S J CHOUDHURY,MR A SHORIF Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 02.06.2025 1. Heard Mr. Z. Kamar, the learned Senior Counsel, assisted by Mr. S. J. Page No.# 2/10 Choudhury, the learned counsel for the petitioner. Also heard Mr. S. C. Keyal, the learned Standing Counsel for Narcotics Control Bureau (NCB). 2. This application under Section 483 of the Bharatiya Nagarik Surakhya Sanhita, 2023, has been filed by the petitioner, Shamir Uddin, who has been detained behind the bars since 02.09.2023(for more than 01year 08 months), in connection with Special (NDPS) Case No. 39(N)/2024, corresponding to NCB Crime No. 15/2023, pending before the Court of learned Additional Sessions, Judge, Nagaon. 3. The gist of accusation in this case is that on 29.08.2023 at about 1700 hours one Mr. J. Touthang, Intelligence Officer of NCB received an information through reliable sources that two persons, namely, Shamir Uddin and Rafikul Islam would be arriving in a vehicle (truck) bearing Registration No. NL-07A 3351 carrying about 4 kgs of heroin. Accordingly, after performing the necessary procedural requirements, a police team was formed and it conducted a search operation near Borghat Chariali, Nagaon. 4. In the intervening night of 30.08.2023 and 31.08.2023, one vehicle (truck) bearing Registration No. NL-07A 3351 was intercepted. The vehicle was followed by a blue coloured TVS Apache motorcycle bearing Registration No. AS12G-3999 which was driven by the present petitioner, Shamir Uddin. 5. During search of the truck, total 5.264 kgs of suspected heroin was recovered therefrom, in 435 nos. of soap cases. Thereafter, on 22.02.2024 the NCB filed a final complaint against five numbers of accused persons including the present petitioner under Sections 8(c)/21(c)/27-A/29 of the NDPS Act, 1985. 6. The learned Senior Counsel for the petitioner has submitted that though the petitioner was driving the vehicle from which the contraband was Page No.# 3/10 recovered, however, he was unaware of the fact that the said vehicle contained the contraband. 7. He also submits that the petitioner has been languishing behind the bars for more than 01year 08months, and till date, even the charges are yet to be framed. Therefore, he prays that the petitioner is entitled to get bail on the ground of prolonged incarceration. 8. In support of his submission, the learned counsel for the petitioner has relied upon the following rulings. In all these cases, the accused person were charged of offences relating to commercial quantity of contraband and they were granted bail mainly on the ground of prolonged incarceration: - i. “Khurshid Ahamad @ Wasim Ahmad Vs. The State of Bihar” (SLP Criminal No. 16726/2023) (Incarceration for 1 year 10 months). ii. “Kalpesh GulabBhai Khojaji Vs. The State of Gujarat” (SLP Criminal No.2325/ 2023) (Incarceration for 1 year 5 months). iii. “Jairam Vs. The State of Rajasthan” (SLP Criminal No. 2479/2024) (Incarceration for 1 year 9 months). iv. “Shariful Islam alias Sharif Vs. The State of West Bengal” (Special Leave to Appeal (Criminal) No. 4173/2022) (Incarceration for 1 year 6 months). v.“Anjan Nath Vs. The State of Assam” Special Leave to Appeal (Criminal No. 9860/2023). vi. “Chitta Biswas alias Subhas Vs. The State of West Bengal” (SLP Criminal No. 8823/2019 (Incarceration for 1 year 6 months). vii. “Nitish Adhikary @ Bapan Vs. The State of West Bengal” SLP Criminal No. 5769/2022 (Incarceration for 1 year 7 months). Page No.# 4/10 viii. “And a few other similar rulings.” 9. The learned Senior Counsel for the petitioner has submitted that the petitioner was served with a memorandum of arrest and a notice under Section 50 of the Code of Criminal Procedure, 1973 at the time of his arrest. 10. However, in the aforesaid documents, no grounds of arrest were mentioned. He further submits that the family members of the petitioner were also not intimated regarding the grounds of the arrest of the petitioner in violation of the requirement of law. 11. The learned Senior Counsel for the petitioner has also submitted that non-furnishing of grounds of arrest to an arrestee at the time of his arrest is a violation of the Constitutional Mandate provided in Article 22(1) of the Constitution of India. And for such violation, the arrest of the petitioner itself becomes illegal, and on that ground alone, the petitioner is entitled to go on bail. 12. In support of his submission, the learned Senior Counsel for the petitioner has cited a ruling of following ruling of the Apex Court. 1. “Vihaan Kumar Vs. State of Haryana,” reported in “2025 SCC OnLine SC 269.” 2. “Prabir Purkayastha Vs. State (NCT of Delhi),” reported in “(2024) 8 SCC 254.” 3. “Pankaj Bansal Vs. Union of India”, reported in “(2024) 7 SCC 576.” 13. The learned Senior Counsel for the petitioner has further submitted that in the meanwhile, one of the co-accused, namely Rafikul Islam, has already been granted bail on 13.03.2025 in Bail Application No. 3931/2024 on the Page No.# 5/10 ground of prolonged incarceration. 14. On the other hand, the learned Standing Counsel for NCB, Mr. S.C. Keyal has vehemently opposed the grant of bail to the petitioner on the ground that the seized contraband in this case is of commercial quantity and the same were seized from the conscious possession of the petitioner. 15. He also submits that the analysis of call detail record of the phones of the present petitioner shows that he was in constant touch with the accused, who is the main supplier of the seized contraband. 16. It is also submitted by the learned Standing Counsel, NCB that the present petitioner was the carrier of the seized contraband, and he works for one Bijoy Kumar Singha and his wife Awele. 17. He submits that on earlier occasions also, the petitioner has been involved in similar cases of transporting the contraband. He also submits that the petitioner was caught red-handed, while he was transporting the seized contraband, and therefore, he was aware about the grounds for which he was arrested. 18. He also submits that in the notice under Section 50 of the Code of Criminal Procedure, 1973, which was served on the petitioner, the petitioner has also put his signatures. He, therefore, vehemently opposed the grant of bail to the present petitioner. 19. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials available on record, including the scanned copies of the records of the Special (NDPS) Case No. 39(N)/2024. 20. The Supreme Court of India in “Mohd Muslim @ Hussain Vs. Page No.# 6/10 State (NCT of Delhi)” reported in “2023 SCC Online SC 352” has observed that “grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985”. 21. The Apex Court in “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” has observed that “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.” 22. In the case of “AnkurChaudhary Vs. State of Madhya Pradesh” reported in “2024 LiveLaw (SC) 416”, the Supreme Court of India has observed as follows: - “...........it is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional libertyoverriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.” 23. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation & Another” reported in “AIR 2022 SC 3386” are relevant, same is quoted here in below: “49. Sub-section (1) mandates courts to continue the proceedings on a day-today basis till the Page No.# 7/10 completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the noncompliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the Page No.# 8/10 delay occasioned due to no fault of his own.” 24. In the instant case also, the petitioner has been detained behind the bars for more than 01 year, 08 months. However, till date, the charges are yet to be framed. 25. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited here in above, for whatsoever reason if inordinate delay is caused and if without any fault on the part of the petitioner, he is kept under detention for a long period, it would certainly infringe his fundamental rights guaranteed under Article 21 of the Constitution of India. Under such circumstances, his constitutional rights guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37(1) (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he would be entitled to get bail on the ground of prolonged incarceration only. 26. In addition to the above, on perusal of the notice under Section 50, which was served on the petitioner at the time of his arrest, it appears that in the said notice, no grounds of arrest has been stated. 27. It also appears that, apart from the case No. in which the petitioner has been arrested and the panel provisions involved in the case, no other basic facts which necessitated the arrest of the petitioner in this case has been stated therein. Thus, there has also been a violation of the Constitutional Mandate as provided under Article 22 (1) of the Constitution of India, as well as statutory requirement under Section 50 of the Code of Criminal Procedure, 1973, which vitiates the arrest of the present petitioner in the instant case. 28. Under the facts and circumstances of this case, this Court is of Page No.# 9/10 considered opinion that the long incarceration of the petitioner in the instant case has outweighed the embargo of Section 37 of the NDPS Act 1995. 29. Moreover, he is also entitled to get bail on the ground that his arrest has itself been vitiated due to non-furnishing of the grounds of arrest at the time of his arrest. 30. For the reasons aforesaid, this Court is of considered opinion that, in spite of the embargo of Section 37 of the NDPS Act, 1985, the petitioner is entitled to get bail on the ground of infringement of his fundamental rights guaranteed under Article 21 as well as, under Article 22 (1) of the Constitution of India. 31. In view of the above, the petitioner, namely, Shamir Uddin, is allowed to go on bail of Rs. 2,00,000/- (Rupees Two Lakh only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned Special Judge, Nagaon with the following conditions: i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 39(N)/2024, which is pending in the Court of learned Special Judge, Nagaon; ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, mobile number, and other Page No.# 10/10 contact details before the Trial Court; v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioner shall not commit any offence while on bail. 32. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant