Page No.# 1/8 GAHC010104962025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1807/2025 M. MARIYAPPAN S/O- MUTHU ERULAPPAN, R/O- 28, PILLALYAR, KOVIL STREET,TOND LARPET, CHENNAI, TAMILNADU-600081. VERSUS THE UNION OF INDIA REPRESENTED BY THE SC, NCB Advocate for the Petitioner : MS. S K NARGIS, A. H. AHMED.,A SAHA,MR F H LASKAR (2),MS N SULTANA,MS S BEGUM Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 22.07.2025 1. Heard Ms. S. K. Nargis, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned standing counsel for the DRI. 2. This application under Section 483 BNSS 2023 has been filed by the petitioner, namely, M. Mariyappan who has been detained behind the bars since 15.03.2022 (for last 3 years 4 months) in connection with NDPS Case No. 131/2021 Page No.# 2/8 arising out of NCB Crime No. 06/2021 under Sections 22(c)/29 of NDPS Act, 1985 pending in the Court of learned Additional Sessions Judge No. 2, Kamrup(M). 3. The gist of accusation in this case is that on 06.03.2021 at about 1800 Hrs., an information was received through reliable sources regarding transportation of 10 kg of methamphetamine in a black colour Ford car bearing Registration No. MN-05-A-7260. On the basis of said information, a team of NCB officials was constituted and a naka checking was arranged near Nazirakhat Toll Plaza, Lomati Gaon, Kamrup(M). During naka checking, one Ford Fusion car bearing registration No. MN-05-A-7260 was intercepted and two persons, namely, Krishna Mahapatra Mali and Muhammad Safiqur Rahman were apprehended. During search operation, 10.276 kg of methamphetamine (in crystal form) was recovered. 4. The learned counsel for the petitioner has submitted that the petitioner is innocent and he is in no way involved in the offence alleged in the complaint filed by the NCB. It is submitted that the petitioner was in custody in Puzhal Jail, Chennai in connection with NCB Crime No. 9/2021 and he was produced before the Court of the learned Additional Sessions No. 2 on the basis of production warrant issued by the said Court. 5. It is further submitted by the learned counsel for the petitioner that nothing was recovered from the possession of the present petitioner and he was implicated in this case solely on the basis of the statement of co-accused persons. The learned counsel for the petitioner has submitted that though the petitioner has been detained behind the bars for more than three years four months, however, till date only 2 out of 15 prosecution witnesses have been examined. She submits that the prolonged incarceration of the petitioner without there being any substantial progress in the trial has caused the Page No.# 3/8 infringement of his fundamental rights guaranteed to him under Article 21 of the Constitution of India. Such infringement of the fundamental rights of the petitioner would outweigh the embargo of Section 37 of the NDPS Act, 1985. She, therefore, prays for allowing the petitioner to be released on bail in this case. 6. She submits that the petitioner is ready to co-operate in the trial and is also ready to abide by any condition which may be imposed while granting bail to him. She has also submitted that in the instant case at the time of his arrest, no grounds of arrest were furnished to the petitioner and thereby his fundamental rights guaranteed under Article 22(1) of the Constitution of India has also been violated. 7. On the other hand, the learned standing counsel for the DRI has 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, therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He also submits that the delay in the progress of the trial was not due to any fault on the part of the prosecution side. He submits that though the witnesses are regularly appearing before the trial court, the defence counsel are seeking adjournments on one or other pretext. He also submits that on 03.05.2025, one witness namely Sakil Ansari was present before the Trial Court, however, he could not be cross-examined only because the counsel for the accused, Ramesh G prayed for an adjournment which was granted by the Trial Court. 8. I have considered the submissions made by the learned counsel for both sides and have gone through the scanned copies of records of NDPS Case No. 131/2021 which was called for in connection with this case. Page No.# 4/8 9. In the case of “Hussainara Khatoon Vs. Home Secy., State of Bihar, reported in “(1980) 1 SCC 115”, the Apex Court has observed that the procedure prescribed by law for depriving a person of his personal liberty cannot be regarded as reasonable, fair or just unless that procedure ensures a speedy trial for determination of guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21 of the Constitution of India. 10. The Hon’ble 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”. 11. The Hon'ble Apex Court in “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109”, wherein it has been observed by the Hon'ble Apex Court 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.” 12. In view of the aforementioned observations of the Apex Court, the submissions made by the learned Standing Counsel, NCB to the effect that as because Section 436 A of the Code of Criminal Procedure, 1973 is applicable to offence under the NDPS Act, 1985, therefore, the accused may not be released on bail unless he completes one half of the maximum period of imprisonment specified for that offence, does not appears to be a reasonable argument. 13. This Court is of the considered opinion that for whatsoever reasons, if inordinate delay has been caused and if it is not due to any fault of the Page No.# 5/8 petitioner, then to keep him under incarceration for a long period on one hand, and to continue to cause delay in culmination of the trial on the other hand would certainly be infringing his fundamental rights guaranteed under Article 21 of the Constitution of India and under such circumstances, the petitioner would be entitled to get bail. 14. In this regard the observations made by the Apex Court in the case of Satender Kumar Antil (Supra) 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 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.” 15. In view of the observation made by the Apex Court, this Court is of the considered opinion that if, under the facts and circumstances of the case, this Page No.# 6/8 Court comes to the finding that there is an undue delay in the completion of the trial, and that the incarceration of the petitioner is long enough, he would be entitled to get bail on the ground of such prolonged incarceration, as in such a case of prolonged incarceration, the right to life and personal liberty guaranteed to the petitioner under Article 21 of the Constitution of India would outweigh the fetter imposed under Section 37 of the NDPS Act, 1985. 16. It is also pertinent to mention herein that the Hon'ble Supreme Court of India had granted bail to an accused facing charges for possession of commercial quantity of contraband only on the ground of prolonged incarceration in “Shariful Islam @ Sarif Vs. State of West Bengal” (Order dated 04.08.2022 passed in SLP Criminal No. 4173/2022), wherein the accused was detained behind bars for one year and six months. 17. In “Nitesh Adhikari Vs. State of West Bengal“ (Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022), Hon'ble Apex Court granted bail to the accused facing accusation under Section 21(c) of the NDPS Act, 1985 on the ground of incarceration of one year and seven months. 18. Similarly in “Md. Salman Hanif Shaikh Vs. State of Gujarat” (Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), the petitioner was granted bail by the Apex Court on the ground of prolonged incarceration of two years. 19. In “Chitta Biswas Alias Subha Vs. The State Of West Bengal“(Order dated 07.02.2020 passed in SLP Criminal No. 8823/2019), the Apex Court granted bail to the petitioner, who was facing a trial for possessing a commercial quantity of contraband on the ground of prolonged incarceration of 1 year and 6 month. 20. It appears on perusal of the rulings cited by learned counsel for the petitioner that in all the cases cited by the petitioner, though commercial Page No.# 7/8 quantity of contraband was involved and apparently the embargo of Section 37 of the NDPS Act, 1985 would have been applicable in those cases, however, only because of the fact of the prolonged incarceration of the petitioners, the Apex Court allowed the petitioners to go on bail. 21. In the instant case also, the present petitioner has been detained behind the bars for last 3 years and 4 months and the trial is yet to culminate and in view of the facts and circumstances of this case as well as considering the observations made by the Apex Court in the rulings cited hereinabove, wherein, it has dealt with the question of long incarceration of similarly situated petitioners who were before the Apex Court, 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 present petitioner outweighs the embargo of Section 37 of the NDPS, Act 1985 and the petitioner is therefore entitled to get bail on the ground of prolonged incarceration only. 22. 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 Additional Sessions Judge No. 2, Kamrup(M) with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 131/2021, which is pending in the Court of 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 Page No.# 8/8 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, Driving License, 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 similar offence while on bail. 23. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant