Page No.# 1/9 GAHC010098732024 2025:GAU-AS:4909 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1421/2024 MD. KHALILUR RAHMAN @ KHALILAR RAHMAN S/O MD. FAIJUR RAMAN R/O LOCH P.S. BAIHATA CHARIALI DIST. KAMRUP, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. Y S MANNAN, MS N DEKARAJA,MR. S MUNIR,MR. C K NATH Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 23.04.2025 1) Heard Mr. Y.S. Mannan, the learned counsel for the petitioner. Also heard Mr. R.R. Kaushik, the learned Additional Public Prosecutor appearing for the State of Assam. Page No.# 2/9 2) This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Md. Khalilur Rahman@ Khalilar Rahman, who has been detained behind the bars since 26.09.2023 (for more than 01 year and 06 months) in connection with NDPS Case No. 01/2024, arising out of S.T.F Police Station Case No. 06/2023 under Sections 21(C)/29 of the NDPS Act, 1985, presently pending before the Court of learned Additional Sessions Judge No. 2, Kamrup (Metro). 3) The gist of accusation in this case is that on 11th July, 2023, one Vikram Basumatary, Inspector of Police, S.T.F Assam had lodged an FIR before the Officer-In-Charge of Special Task Force (STF) Police Station, inter-alia, alleging that on 10.07.2023, on the basis of an information received through reliable sources that a search team was constituted for conducting search operation and accordingly, the police team reached Sonapur near Toll Plaza. At about 1:00 AM, on 11.07.2023, the police intercepted two vehicles, namely, a Hyundai Creta and a Honda City Vehicle and tried to stop the said vehicle. The driver of Creta vehicle bearing Registration No. AS-01-FE-1589 hit the Toll gate barricade and sped off towards Guwahati. One round of fire was also shot at tyre of the vehicle to prevent it from escaping. However, in vain. The other vehicle, namely, a Honda City bearing Registration No. AS-01-BL-2211 was intercepted and one Mafijul Haque was found inside the said vehicle. During search of the vehicle, suspected heroin weighing about 1.873 kgs kept in 145 numbers of plastic packets inside soap cases were recovered therefrom. 4) On receipt of the aforesaid FIR, S.T.F Police Station Case No. 6/2023 was registered and investigation was initiated. 5) The learned counsel for the petitioner has submitted that the petitioner, Page No.# 3/9 who was detained behind the bars was shown arrested in S.T.F Police Station Case No. 06/2023 on 21.09.2023, on the basis of an application made for the same by the Investigating Officer of the aforesaid case before the learned Sessions Judge, Kamrup(M) . 6) The learned counsel for the petitioner has submitted that in the instant case, nothing was recovered from the possession of the present petitioner and he has been implicated in the instant case only on the basis of the statement of the co-accused. He submits that such a statement of the co-accused cannot be used as evidence in a trial involving an offence under the NDPS Act, 1985. 7) As the law in this regard has already been settled in the case of “Tofan Singh Vs. State of Tamil Nadu” reported in “(2013) 16 SCC 31.” 8) The learned counsel for the petitioner has submitted that 8(eight) out of 14(fourteen) listed prosecution witnesses have been examined and none of the witness has implicated the present petitioner in the offence alleged against him in the instant case. He also submits that though the accusation against the present petitioner is that he was in the Creta vehicle bearing Registration No. AS-01-FE-1589, which dashed against the barricade in the Toll gate and sped off. However, there is no evidence to that effect on record. He submits that the employees of Toll Plaza were examined as PW-2 and PW-3 has not stated anything about CCTV footage or that the present petitioner was seen at the Toll Plaza on the day of alleged offence inside the vehicle. 9) He therefore, submits that apart from statement of the co-accused, no other material is there on record. 10) On the other hand, Mr. R.R. Kaushik, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner Page No.# 4/9 on the ground that the contraband seized in this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 would be applicable in this case. He submits that already 8(eight) out of 14(fourteen) listed witnesses have been examined and therefore, there is every likelihood that the trial would culminate at the earliest and under such circumstances, the petitioner may not be granted the benefit of prolonged incarceration in this case. 11) In support of his submission, he has relied on a ruling of co-ordinate bench of this Court in the case of “Bablu Pandey Vs. The State of Assam” passed in [Bail Application No. 2596/2024] as well as of the Apex Court in the case of Narcotics Control Bureau Vs. Mohit Aggarwal [in Criminal Appeal Nos. 1001-1002 of 2022 arising out of Special Leave to Appeal (CRL.) No. 6128-29 of 2021.] 12) I have considered the submissions made by the learned counsel for both the sides and have perused the materials on record. 13) Apparently, the petitioner was not apprehended at the place of occurrence, i.e., the Toll Plaza gate at Sonapur, where the other co-accused was apprehended from another vehicle. The accusation against the petitioner is that he was an occupant of the Creta vehicle which sped off in spite of the police barricade. 14) On perusal of the materials available on record, it appears that at this stage, the only implicating materials against the present petitioner are the statement of the co-accused. Leaving apart this aspect, the fact that the petitioner has been languishing behind the bars for more than 1 year and 6 months is undeniable and till date 8(eight) out of 14(fourteen) prosecution Page No.# 5/9 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.” 17) In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” reported in “2024 Live Law (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 liberty overriding the statutory Page No.# 6/9 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 Vs. Central Bureau of Investigation & Another” reported in “AIR 2022 SC 3386” are relevant, same are 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 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 Page No.# 7/9 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 the instant case also, the petitioner has been detained behind the bars for more than 01 year and 06 months, and only 8(eight) out of total 14(fourteen) listed prosecution witnesses have been examined and they have not implicated the present petitioner. 20) This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited hereinabove, 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. Page No.# 8/9 21) Under the facts and circumstances of this case, in the considered opinion of this Court, the long incarceration of the petitioner has, in the instant case as well, outweighed the embargo of Section 37 of the NDPS Act, 1985. Therefore, he is entitled to get bail on the ground of the infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. 22) In view of the above, the petitioner, namely, Md. Khalilur Rahman @ Khalilar Rahman 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 Additional Sessions Judge No. 2, Kamrup(M) with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 01/2024, which is pending in the Court of the learned Additional Sessions Judge No. 2, Kamrup(M); 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 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 Page No.# 9/9 Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; vi. That the petitioner shall not commit any offence while on bail; vii. That the petitioner shall appear before the Officer-in-Charge of S.T.F Police Station once in every fortnight till the pendency of the Special (NDPS) Case No. 01/2024; viii. That any violation of the above conditions shall be a good ground for the Trial Court to get the petitioner arrested and commit him to custody. 23) With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant