Page No.# 1/6 GAHC010100312025 2025:GAU-AS:7403 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1580/2025 SAGAR DHUNGANA S/O KAMAL PRASAD DHUNGANA R/O HOUSE NO. 35, KANGLATONGBI,P.S.SEKMAI, DIST.IMPHAL WEST. VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : S KAUR, L BANIK,N NEOG Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 05.06.2025 1. Heard Ms. L. Banik, the learned counsel for the petitioner. Also heard Mr. K. Baishya, the learned Additional Public Prosecutor appearing for the State of Assam. 2. This application under Section 483 of the Bharatiya Nagarik Page No.# 2/6 Suraksha Sanhita, 2023 has been filed by the petitioner, namely, Sagar Dhungana, who has been detained behind the bars since 14.10.2023 (for more than 1 year 7 months) in connection with NDPS Case No. 01/2024 (corresponding to Khatkhati P.S. Case No. 105/2023), pending before the Court of the learned Additional Sessions Judge, Diphu, Karbi Anglong. 3. The gist of the accusation in this case is that on 14.10.2023, one Sri Deepak Lahon, SI of Police, had lodged a FIR before the Officer-in- Charge of Khatkhati Police Station, inter-alia, alleging that on 13.10.2023 at about 11.30 p.m., while performing naka checking duty at National Highway No. 39 near SBI Khatkhati Branch, one vehicle bearing Registration No. NL07AA3057 coming from Dimapur side was intercepted and two persons including the present petitioner who was in the said vehicle as well as the helper were apprehended and in search of the said vehicle, six number of packets wrapped in brown colour tape containing black colour jelly substance suspected to be opium concealed inside the blanket of light blue colour with white strips were recovered from inside the cabin of the said truck. 4. On receipt of the said FIR, the Khatkhati P.S. Case No. 105/2023 was registered and investigation was initiated. Ultimately, on completion of investigation, charge sheet was laid against two accused persons including the present petitioner, under Section 18(b) of the NDPS Act, 1985. 5. The learned counsel for the petitioner has submitted that this is for the second time that the petitioner is approaching this Court seeking bail. His earlier application for bail was rejected by this Court, by order dated 26.06.2024, in Bail Application No. 915/2024. Page No.# 3/6 6. The learned counsel for the petitioner has submitted that the petitioner has been languishing behind the bars for more than 1 year 7 months, however, till date, only 1(one) of the 9(nine) listed prosecution witnesses have been examined and there is no hope of early culmination of the trial. Hence, she submits that the prolonged incarceration of the petitioner has outweighed the embargo of Section 37 of the NDPS Act, 1985 and in the light of the several rulings of the Apex Court in this regard, she submits that the petitioner may be allowed to go on bail. 7. The learned counsel for the petitioner has also submitted that in the meanwhile, one of the co-accused, namely, Tara Bir Gurung has already been granted bail by the Trial Court on 08.01.2025, on the ground of prolonged incarceration. 8. She also submits that in the NDPS Case No. 01/2024, on 17.08.2024, the prosecution side had filed an application under Section 311 of the Code of Criminal Procedure, 1973 praying for calling of the prosecution witnesses and which was allowed by the Trial Court without giving an opportunity of hearing to the present petitioner. 9. This Court directed the Trial Court to consider the application and thereafter, the Trail Court rejected the prayer for recalling the prosecution witness after 1(one) year. 10. On the other hand, the learned Additional Public Prosecutor submits that the trial got delayed due to the disposal of application under Section 311 of the Code of Criminal Procedure, 1973 as the same was filed on 17.08.2024. However, it was ultimately decided on 25.11.2024. Page No.# 4/6 11. He also submits that the contraband seized in this case is of commercial quantity and it was found from conscious possession of the present petitioner and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable in this case and he therefore, opposes the grant of bail to the petitioner. 12. The learned Additional Public Prosecutor has also opposed the bail application on the ground that seizure witnesses are yet to be examined. 13. I have considered the submissions made by the learned counsel for the petitioner and have gone through the scanned copy of the case records of NDPS Case No. 01/2024. 14. On perusal of the case record, it appears that by order 08.01.2025, the co-accused, namely, Tara Bir Gurung has already been granted bail on the ground of prolonged incarceration. 15. It also appears that the co-accused was arrested on the same day, when the present petitioner was arrested and now the present petitioner has undergone longer period of detention than that of the co-accused, who has already been granted bail. 16. The Apex Court has observed in several of its rulings (for eg.) i. “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352;” and ii. “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109;” wherein, it observed that “prolonged incarceration, generally militates against the most precious Fundamental Rights guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must Page No.# 5/6 override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act, 1985.” 17. In the instant case also, the petitioner has been languishing behind the bars for more than 1 year 7 months and only 1(one) of the 9(nine) listed prosecution witnesses have been examined. Moreover, the co-accused has already been released on bail. 18. Under the above circumstances, this Court is of the considered opinion that for whatsoever reasons, if inordinate delay is caused and if it is without any fault on the part of the petitioner, it would certainly infringe his Fundamental Rights guaranteed under Article 21 of the Constitution of India. 19. Under Such circumstances, this Court is of the considered opinion that the petitioner is entitled to get bail on the ground of infringement of his Fundamental Rights guaranteed under Article 21 of the Constitution of India. The above-named petitioner is accordingly allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand 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, Karbi Anglong, Diphu with the following conditions: i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 01/2024, which is pending before the Court of learned Additional Sessions Judge Karbi Anglong, Diphu; ii. That the petitioner shall appear before the Trial Court as and when so Page No.# 6/6 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 which 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 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. 20. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant