Page No.# 1/8 GAHC010101532025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1586/2025 SHRI SURESH DAS S/O- SHRI RAJKUMAR DAS, R/O.-VILL.- JETHULY, P.O.- KACHCHI DARGAH, P.S.- FATWAH, DIST- PATNA, STATE - BIHAR - 803201 VERSUS THE UNION OF INDIA REPRESENTED BY STANDING COUNSEL, DIRECTORATE OF REVENUE INTELLIGENCE, GUWAHATI ZONAL UNIT, GUWAHATI-05 Advocate for the Petitioner : MR. M HUSSAIN, MR. A Z AHMED Advocate for the Respondent : SC, DRI, Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 24.07.2025 1. Heard Mr. A.Z. Ahmed, learned counsel for the petitioner. Also heard Ms. P. Upadhya, learned counsel for DRI. 2. This is an application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Suresh Das, who has been detained behind the bars since 11.11.2018 (for last 6 years 8 months 13 days) in connection with NDPS Case No. 82/2019 under Sections 20(b)(ii)(c)/29/23/8(C) of NDPS Act, 1985, pending before the Court of learned Additional Sessions Judge No.2, Kamrup(M), Guwahati. 3. The gist of the accusation in this case is that the Directorate of Revenue Intelligence had filed a complaint before the Court of learned Additional Sessions Judge, Kamrup(M), Guwahati, inter alia, alleging that on receipt of an information through reliable sources that one 10-wheeler truck bearing registration no.WB-61D- 9423 would be carrying huge quantity of ganja in a specially built cavity in the said truck. The truck was coming from Tripura towards Guwahati, when it was intercepted on 11.11.2018. During search operation of the said truck, 306.900 kg of suspected ganja was recovered from the said truck. 4. The learned counsel for the petitioner has submitted that that the petitioner has been languishing behind the bars since more than 6 years 8 months 13 days, however, till date only 7 out of 12 Page No.# 3/8 listed prosecution witnesses have been examined and there is unlikelihood of early culmination of the trial. 5. He submits that though the charges were framed against the present petitioner along with 2 other co-accused persons on 18.05.2023, however, the trial has not been progressing in expected manner. 6. He further submits that due to long incarceration of the petitioner, his fundamental rights guaranteed to him under Article 21 of the Constitution of India have been violated and he submits that under such circumstances, the embargo of Section 37 of the NDPS Act is not applicable. 7. In support of his submission, the learned counsel for the petitioner has cited several rulings of the Apex Court. 8. On the other hand, Ms. P. Upadhya, the learned counsel for the DRI has vehemently opposed the grant of bail to the petitioner on the ground that more than 306 kgs of ganja was recovered from conscious possession of the present petitioner and as the quantity of ganja recovered is of commercial quantity, the embargo of Section 37 is applicable in this case. 9. She also submits that already 7 witnesses have been examined by the trial court and only 56 are remaining which are likely to be examined very soon. 10. She further submits that considering the fact that the petitioner was caught red handed with the suspected contraband, this is not a case where bail may be granted on the basis of Page No.# 4/8 prolonged incarceration. 11. I have considered the submissions made by the learned counsel for both sides and have gone through the scanned copy of the records of NDPS Case No. 82/2019. 12. 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”. 13. 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.” 14. In the case of “Ankur Chaudhary 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 liberty overriding the statutory embargo created under Section 37(1)(b) of the Page No.# 5/8 NDPS Act may, in such circumstances, be considered.” 15. 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 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 Page No.# 6/8 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.” 16. In the instant case, the petitioner has been languishing behind the bars for more than 6 years 8 months 13 days and only 7 of the listed 12 prosecution witnesses have been examined. 17. 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. 18. 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. Page No.# 7/8 19. In view of the above, the petitioner, namely, Suresh Das, is allowed to go on bail of Rs. 1,00,000/- (Rupees One 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 Court of learned Additional Sessions Judge No.2, Kamrup(M), Guwahati with the following conditions - i. That the petitioner shall cooperate in the trial of NDPS Case No.82/2019, which is pending in the Court of learned Additional Sessions Judge No.2, Kamrup(M), Guwahati. 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 Page No.# 8/8 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; vi. That the petitioner shall not commit any offence while on bail; vii. 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. 19. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant