Page No.# 1/6 GAHC010101932025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1552/2025 JITENDAR KUMAR S/O- SACHE LAL RAJBAR. R/O- VILL.- ASHAPUR, BESIDE RAMLEELA MAIDAN. P.S- SARNATH, P.O.- ASHAPUR. DIST.- BANARAS, UTTAR PRADESH. PIN-221007. VERSUS THE UNION OF INDIA REPRESENTED BY SC, NCB Advocate for the Petitioner : MR D MEDHI, S YESMIN,MR. J N SUWAI,MR K THAKUR Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 31.07.2025 1. Heard Mr. K. Thakur, learned counsel for the petitioner. Also heard Ms. M. Deka, learned counsel for the NCB. 2. This application under Section 483 of BNSS, 1973 has been filed by the petitioner, namely, Jitendar Kumar, who has been detained behind the bars since Page No.# 2/6 04.04.2023, (for more than 2 years and 3 months), in connection with NDPS Case No. 37/2023 corresponding to NCB Crime No. 6/2023 under Sections 20(b)(ii)(c) of the NDPS Act, 1985. 3. The gist of accusation in this case is that the Narcotic Control Bureau had filed a complaint before the Court of the learned Special Judge, Kamrup, Amingaon, inter alia, alleging that on receipt of an information through reliable sources that the petitioner would be carrying huge quantity of ganja from Agartala to Bihar in a truck bearing Registration No. AS-01-KC-6150, a search team was constituted and a naka checking was arranged. During naka checking, the aforesaid truck was intercepted. During search of the said truck, 310.300 Kgs. of suspected ganja was recovered from the said truck and the petitioner was apprehended therefrom. 4. The learned counsel for the petitioner has submitted that the petitioner is praying for bail in this case mainly on two grounds. Firstly, he was not communicated with the grounds of arrest at the time of his arrest though notice under Section 50 Cr.P.C. was furnished to him. It is submitted that the said notice did not contain grounds of arrest. His second ground for bail is that the petitioner has been languishing behind the bars for last more than two years and three months and the trial has not yet culminated though nine prosecution witnesses have been listed in the final complaint. However, only six witnesses have been examined. He further submits that last witness to be examined by the prosecution side was on 24.03.2025 and since then no prosecution witnesses has been examined. He also submits that in view of the observation made by the Apex Court in several of its rulings, the prolonged incarceration in such cases would override the embargo of Section 37 of the NDPS Act, 1985. 5. The learned counsel for the petitioner has cited the rulings of the Apex Page No.# 3/6 Court in the case of “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352” as well as in the case of “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” in support of his submission. 6. On the other hand, learned counsel for the NCB has vehemently opposed the grant of bail to the petitioner on the ground that the quantity of contraband seized in this case is of commercial quantity and the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. She submits that the contraband in this case which is of commercial quantity was seized from the conscious possession of the petitioner and he was caught red handed at the time of seizure of the contraband. She also submits that only three prosecution witnesses are left to be examined and it would not take much time for examining the said witnesses and, therefore, she opposes the grant of bail to the petitioner. 7. I have considered the submissions made by the learned counsel for both sides and have gone through the scanned copy of the case records of NDPS Case No. 37/2023. 8. 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”. 9. 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.” 10. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” reported in Page No.# 4/6 “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 NDPS Act may, in such circumstances, be considered.” 11. 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 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.” 12. In the instant case also, the petitioner has been detained behind the bars for last more than 2 years and 3 months and the trial has not yet been culminated. 13. 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 Page No.# 5/6 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. 14. 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. 15. In view of the above discussion, the petitioner is found to be entitled to get bail on the ground of prolonged incarceration in this case. The plea of the learned counsel for the petitioner that grounds of arrest was not furnished to him in writing at the time of his arrest is not required to be considered as the petitioner has already been found entitled to get bail on a different ground as discussed herein before. 16. In view of the above, the above named petitioner is allowed to go on bail of Rs.1,00,000/- (Rupees One Lakh only) with two sureties of like amount subject to the satisfaction of the learned Special Judge, Kamrup, Amingaon, with the following conditions: i. That the petitioner shall co-operate in the trial of NDPS Case No. 37/2023, which is pending in the Court of the Special Judge, Kamrup, Amingaon; 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; Page No.# 6/6 iv. 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 17. This bail application is accordingly disposed of. JUDGE Comparing Assistant