Page No.# 1/9 GAHC010107882025 2025:GAU-AS:9203 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1707/2025 JHALMAN SINGH S/O NAZAR SINGH R/O TOOSA, TEHSIL RAJKOT, V.P.O. TOOS, P.S. SUDHAR, TOOSEY, LUDHIANA, PUNJAB-142023 VERSUS UNION OF INDIA REPRESENTED BY THE SC, NCB Advocate for the Petitioner : MS. S K NARGIS, Q. KIBA,MS N SULTANA,MS S BEGUM Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 16.07.2025 1. Heard Ms. S.K. Nargis, the learned counsel for the petitioner. Also heard Ms. M. Deka, learned counsel for NCB. 2. This application under Section 483 of the BNSS, 2023 has been filed by the petitioner, namely, Jhalman Singh, who has been detained Page No.# 2/9 behind the bars since 10.12.2020 (for more than four years six months) in connection with Special NDPS Case No. 23/2021 under Sections 21(C)/29 of NDPS Act, 1985, pending before the Sessions Judge, Kamrup, Amingaon. 3. The gist of accusation in this case, in brief, is that on 05.06.2021, the NCB had filed a complaint before the learned Special Judge, Kamrup (Amingaon) against four accused persons including the present petitioner, inter alia, alleging that on 09.12.2020, an information was received by the NCB that two persons including the present petitioner will be transporting huge number of phensedyl cough syrup in a vehicle bearing registration No. PB-13-AW-9785. Accordingly, a search team was constituted and the aforementioned truck was intercepted. During search of the said truck, total 19984 bottles of phensedyl cough syrup were recovered from there. 4. The learned counsel for the petitioner has submitted that the petitioner was arrested on the said truck as he was co-driver of the said truck. After laying of the charge sheet, on 30.11.2024, charges were framed against the present petitioner and other co-accused under Section 21(C)/29 of NDPS Act, 1985. 5. The learned counsel for the petitioner has submitted that she has approached this Court seeking bail mainly on the ground of prolonged incarceration as the petitioner has been languishing behind the bars for more than four year six months and out of ten listed prosecution witnesses only four witnesses have been examined. Page No.# 3/9 6. The learned counsel for the petitioner has further submitted that the petitioner before moving the instant bail application had approached this Court for seeking bail on earlier occasion and by order dated 11.04.2025 passed in Bail Application No. 3876/2024, the Co-ordinate Bench of this Court had rejected his prayer for bail and directed to the Trial Court to complete the trial within four months of the said order. She also submitted that more than three months have been lapsed since the date of the direction, however, only two more witnesses have been examined till date and it is unlikely that the trial would complete soon. She has further submitted that though the petitioner on earlier occasion also had prayed for bail on the ground of prolonged incarceration, however, said aspect has not been dealt by the Co-ordinated Bench of this Court while rejecting the bail application of the petitioner. She further submitted there are judgments of Apex Court which provide that prolong incarceration overrides the embargo of Section 37 of NDPS Act, 1985. 7. Learned counsel for the petitioner also submitted that the petitioner was also granted interim bail on 12.05.2023 by the Trial Court for enabling the petitioner to attend the last rites of his mother. She submits that petitioner had complied with the conditions of the interim bail and had surrendered before the Trial Court on 09.06.2023 after performing last rites of his mother, hence she submits that the petitioner would not jump bail if same is granted to him. 8. Learned counsel for the petitioner has, in support of her submission cited several rulings of the Apex Court in which bails were granted to the petitioners on the ground of prolong incarceration. Page No.# 4/9 Amongst the rulings cited by the learned counsel for the petitioner, she has mainly prayed on the judgment of the Apex Court in the case of Rabi Prakash vs. State of Odisha reported in 2023 SCC Online 1109, wherein it has been observed by the 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”. 9. On the other hand, Ms. M. Deka, learned counsel for the NCB 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 accordingly the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 10. She submits that the Co-ordinate Bench of this Court while rejecting the application for bail on 11.04.2025 has considered all the pleas taken by the petitioner and after the rejection of the bail application on 11.04.2025, no new ground has accrued justifying grant of bail to the petitioner. She has submitted that the seized contraband was recovered from the conscious possession of the petitioner and the fact that length of detention cannot be considered as a ground of release the petitioner on bail has already been dealt by the Co-ordinate Bench of this Court in its order dated 11.04.2025 passed in BA/3876/2024. She also submitted that the rulings of Co-ordinate Bench of this Court in the case of Saheb Sahani vs. Union of India (order dated 14.07.2025 passed in BA No. 1918/2025), wherein it was observed that if the delay occurred in a Page No.# 5/9 particular case is not considered as inordinate delay, it would not violate the right of the accused under Article 21 of the Constitution of India and on that ground he may not get bail. On the similar lines, she has also cited ruling of Co-ordinate Bench of this Court in Prempal Singh & Anr. vs. Union of India (order dated 06.06.2025 in BA No. 1349/2025) 11. I have considered the submissions made by the learned counsel for both sides. 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 ground of undue delay in trial, cannot be said to be fettered by section 37 of the NDPS Act, 1985”. 13. Similarly, the Apex Court of India has also observed in “Rabi Prakash Vs. The State of Odisha” (Supra) 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 override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act, 1985.” 14. In the instant case also the petitioner has been languishing behind the bars for more than four years six months which, in the considered opinion of this Court is long enough for considering the same as violative of the fundamental rights of the petitioner under Article 21 of the Constitution of India. In the judgments of the Co-ordinate Bench of this Court cited by the learned counsel for the NCB, the Court was not Page No.# 6/9 convinced regarding length of detention to be long enough so as the regard as prolonged incarceration for entitling the petitioner to grant of bail on that ground. However, in the instant case, this Court is of the considered opinion that in the light of the observations made by the Apex Court in the rulings cited hereinabove, for whatsoever reasons if inordinate delay is caused and it is not out of the fault of the petitioner, then to keep the petitioner under incarceration for long period on one hand and to continue to the cause delay in early culmination of the trial on other hand will certainly infringe the fundamental rights of the petitioner guaranteed to him under Article 21 of the Constitution of India. Under such circumstances, the fundamental right of the petitioner under Article 21 of the Constitution of India would outweigh the embargo of Section 37 of NDPS Act, 1985. 15. In view of the above discussed observation made by the Apex Court, this Court is of the considered opinion that if, under the facts and circumstances of a case, this Court comes to the finding that there is 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 fetters 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 Page No.# 7/9 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 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 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 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. Page No.# 8/9 21. In the instant case also, the present petitioner has been detained behind the bars for last four years six 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 petitioner, namely, Jhalman Singh 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 learned Sessions Judge, Kamrup, Amingaon with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 23/2021, which is pending in the Court of learned Sessions 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 Page No.# 9/9 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, 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