Page No.# 1/9 GAHC010093472024 2025:GAU-AS:1480 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1347/2024 TAFAJUL ISLAM AND ANR. S/O JAHUR ALI VILL- KATIMARI PATHER P.S. NAGAON DIST. NAGAON, ASSAM 2: ABDUL SATTAR S/O LT. ABDUL KADIR VILL- KATIMARI PATHER P.S. NAGAON DIST. NAGAON ASSA VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR M RAHMAN, MR M RAHMAN,MR. A S TAPADER Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 13.02.2025 1. Heard Mr. M. Rahman, the learned counsel for the Page No.# 2/9 petitioners. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor for the State of Assam. 2. This application under Section 439 of Code of Criminal Procedure, 1973 has been filed by the petitioners, namely, (1)Tafajul Islam and (2) Abdul Sattar, who are detained behind the bar since 09.05.2023 (for the last 1 year 09 months) in connection with NDPS Act 60/2023, under Section 20(b)/(ii)(C)/21(b)/29 of the NDPS Act, 1985, corresponding to Bakalia P.S Case No. 27/2023. 3. The gist of accusation in this case is that, on 8th May 2023 one Nabajit Das, Sub-Inspector of Police had lodged an FIR, before the Officer-In-charge of Bakalia Police Station, inter alia, alleging that a secret information was received on that day regarding movement of large quantity of illegal drugs in a passenger bus coming from Diphu towards Doboka. Accordingly, a police team constituted and a Naka Checking was arranged on NH-36 at Sikaripathar. During the Naka Checking, at 2.17 PM, one Ultra Bus bearing Registration No. AS 02CC 3637 was intercepted and three passengers, including the present petitioners were apprehended therefrom. During search of the vehicle two bags containing total 20.939 Kgs of suspected ganja was recovered fromthere. 4. It is also alleged in the FIR that 52 grams of heroin was also recovered from their possession. After receipt of the said FIR Bakalia Police Station Case No. 27/2023 was registered and investigation was initiated. Ultimately after completion of the investigation, charge sheet was laid against present petitioner and Page No.# 3/9 another accused person. 5. Mr. M. Rahman, the learned counsel for the petitioners has submitted that the petitioners are languishing behind the bars for the last 1 year 09 months 03 days, and till date, out of 11(eleven) listed prosecution witness only 4(four) have been examined till date. 6. He also submits that the bus from where the recovery of ganja was made was a passenger bus and there is no material on record, to link the bags from which ganja was found to the present petitioner. 7. He also submits that though, the seizure list shows that recovery was made in two separate bags, however, this case has been registered under Section 20(b)(ii)(c) showing the recovered quantity of ganja in two bags as a single recovery, which is against the rules in force. 8. The learned counsel for the petitioners has also submitted that the weight of recovered ganja was taken separately, this case would have been registered under Section 20(b)(ii)(B) of the NDPS Act, 1985 and then the embargo of Section 37 would not have come into play. 9. He also submits that considering the period of detention undergone by the petitioners and considering the slow progress of the trial, the petitioner is entitled to get bail on the ground of prolonged incarceration. 10. In support of his submission, the learned counsel for the petitioner has cited the following rulings:- Page No.# 4/9 I. “Sheikh Javed Iqbal @Ashfaq Ansari@ Javed Ansari Vs. State of Uttar Pradesh (Criminal Appeal No. 2790/2024);” II. “Nitish Adhikary@Bapan Vs. The State of West Bengal SLP(CRI) 5769/2022 (Decided on 01.08.2022);” III. “Shariful Islam @ Sarif Vs. The State of West Bengal Special Leave to Appeal (Crl.) No. 4173/2022 dated 22.03.2022;” IV. Raju Ram Vs The State of Bihar Special Leave to Appeal (Crl.) No. 307/2023 dated 25.07.2022;” V. “Chitta Biswas @ Subash Vs. The State of West Bengal Criminal Appeal No(s) 245 of 2020. (Decided on 07.02.2022);” VI. “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109.” VII. “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352.” 11. On the other hand, learned Additional Public Prosecutor for the State respondent has opposed the grant of bail to the present petitioners on the ground that there are sufficient incriminating materials against the present petitioners on record. He also pointed out that the witnesses, who have already been examined have also implicated the present petitioners in the offence alleged against them. Page No.# 5/9 He also submits that as the contraband recovered in this case is of commercial quantity, the embargo of Section 37 of the NDPS Act, 1985 is applicable. He therefore, opposes the grant of bail to the present petitioners. 12. I have considered the submissions made by the learned counsel for both the sides and have gone through the scanned copy of the case record of NDPS Case No. 60/2023, which was requisitioned in connection with this case. 13. Without going into the contentions made by the learned counsel for the petitioners, which touches the merit of the case, the fact that the petitioners has been detained behind the bars for more than 1 year 09 months is indisputable. 14. It is also pursuant to note that till date only 4(four) out of 11(eleven) listed prosecution witnesses have been examined. 15. The Supreme Court of India in “Mohd Muslim @ Hussain Vs. 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”. 16. 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.” Page No.# 6/9 17. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” Special Leave to Appeal (Crl.) No. 4648/2024 dated 28.05.2024, 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 liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.” 18. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil” 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-to-day basis till the 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 Page No.# 7/9 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 delay occasioned due to no fault of his own.” 19. In view of the observations made by the Apex Court in the cases cited herein below, this Court is of the considered opinion that for whatsoever reasons if, inordinate delay has been caused in trial and if it is without any fault, on the part of the petitioner, his prolonged incarceration would certainly infringe the Fundamental Rights guaranteed to him under Article 21 of the Constitution of India. 20. 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 Page No.# 8/9 Narcotic Drugs and Psychotropic Substances Act, 1985 and he would be entitled to get bail on the ground of prolonged incarceration only. 21. As in the instant case, the petitioners has been languishing behind the bars for more than 1 year 09 months and only 4(four) out of 11(eleven) listed witnesses have been examined. 22. In view of the observations made by the Apex Court in the rulings cited hereinabove, this Court is of the considered opinion that in the instant case also, the facts and circumstances are such that the long incarceration of the petitioners has outweigh the embargo of Section 37 of the NDPS Act, 1985 and they are entitled to get bail on the ground of infringement of their Fundamental Rights guaranteed to them under Article 21 of the Constitution of India. 23. In view of the above, the petitioners, namely, Tafajul Islam and 2. Abdul Sattar, are allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) each with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) each subject to the satisfaction of the learned Special Judge, NDPS, Diphu, Karbi Anglong with the following conditions: i. That the petitioners shall cooperate in the trial of NDPS Case No. 60/2023, which is pending in the Court of Special Judge, NDPS, Diphu, Karbi Anglong; ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioners 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 Page No.# 9/9 disclosing such facts before the Trial Court in the trial pending against the present petitioners; iv. That the petitioners shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card as well as mobile number, and other contact details before the Trial Court; v. That the petitioners 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 petitioners shall not commit any offence while on bail. 24. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant