Page No.# 1/7 GAHC010108002025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1687/2025 ACHCHELAL SAHANI S/O- LATE MUSHAR SAHANI. R/O- WARD NO.09, VILL.- MATHURAPUR, P.O.- MATHURAPUR, P.S.- TURKAULIA, DIST.- EAST CHAMPARAN, BIHAR-845429 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 : 04.08.2025 1. Heard Ms. S. K. Nargis, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing counsel for the NCB. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Achchelal Sahani, who has been detained behind the bars since 23.10.2021 (for last 3 years and nine months) in connection with NDPS Page No.# 2/7 Case No. 24/2021 under Sections 20(b)(ii)(c)/29 of the NDPS Act, 1985 pending before the Court of learned Additional Sessions Judge, Rangia, Kamrup. 3. The gist of accusation in this case is that on receipt of an information through reliable sources that two persons would be carrying suspected ganja in a truck, a search operation was conducted and the truck bearing Registration No. HR-55-N-2597 was intercepted at National Highway No. 15, Baihata Chariali, Kamrup and during search of the said truck 1586.030 Kgs. of suspected ganja was recovered from the said truck. During investigation, finding sufficient materials against four accused persons, namely, 1. Ramu @ Ramu Khuswaha, 2. Prempal Singh, 3. Mohammad Alauddin @ Khan and 4. Ajay Kumar Singh, complaint was lodged against aforesaid persons before the Court of learned Additional Sessions Judge, Rangia, Kamrup under Section 36A of the NDPS Act, 1985. Later on, on 22.10.2021, the present petitioner was apprehended as he was travelling from Bihar to Assam in Awadh-Assam Special Train. It is alleged that the apprehended accused persons have implicated the present petitioner in the offence alleged in this case. 4. The learned counsel for the petitioner has submitted that the present petitioner is in no way connected with the offence alleged in the complaint. It is also submitted by the learned counsel for the petitioner that no contraband was recovered from the present petitioner and he was mainly arrested on the basis of the statement of the co-accused after seven months of the recovery of the said contraband. 5. The learned counsel for the petitioner submits that the statement of the co-accused does not have any evidentiary value in a trial involving offence under NDPS as observed by the Apex Court in the case of “Tofan Singh Vs. State of Tamil Nadu” reported in “(2021) 4 SCC 1”. She also submits that the petitioner Page No.# 3/7 has been languishing behind the bars for more than 3 years 9 months and till date only 3 out of 13 witnesses have been examined. 6. She submits that the prolonged incarceration of the petitioner has infringed the fundamental rights guaranteed to him under Article 21 of the Constitution of India and as such for violation of his fundamental rights, he is entitled to get bail in this case. She also submits that the petitioner has also not been communicated the grounds of arrest, in writing, at the time of his arrest. She submits that though the notice under Section 50 Cr.P.C. was issued to him at the time of his arrest, however, it did not contain any grounds of arrest or basic facts which necessitated the arrest of the petitioner in the aforesaid case. 7. The learned counsel for the petitioner has also submitted that the family members/relatives of the petitioner were not intimated about the grounds of arrest, in writing, as required under Section 50A of the Code of Criminal Procedure, 1973 and, therefore, for violation of the fundamental rights of the petitioner guaranteed under Article 22(1) of the Constitution of India, he is entitled to get bail. 8. On the other hand, learned standing counsel for the NCB has opposed the grant of bail to the present petitioner on the ground that the 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 in their voluntary statement, the co-accused, namely, Ramu @ Ramu Khuswaha, Mohammad Alauddin and Ajay Kumar Singh have implicated the present petitioner in involvement of the trafficking of ganja which was seized in this case. He was the intended receiver of the seized ganja. 9. I have considered the submissions made by the learned counsel for Page No.# 4/7 both sides and have gone through the scanned copy of the records of NDPS Case No. 24/2021. 10. It appears from the records that in the trial of NDPS Case No. 24/2021, out of thirteen listed prosecution witnesses only three have been examined till date. It also appears that the petitioner has been languishing behind the bars for last more than three years and nine months. There is unlikelihood of trial getting culminated soon. The petitioner has prayed for bail on the ground of violation of his fundamental rights guaranteed to him under Article 21 and 22(1) of the Constitution of India. 11. 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”. 12. 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.” 13. 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 NDPS Act may, in such circumstances, be considered.” 14. In this regard the observations made by the Apex Court in the case of Page No.# 5/7 “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.” 15. In the instant case also, the petitioner has been detained behind the bars for last more than 3 years and 9 months and till date only 3 out of 13 witnesses have been examined and there is unlikelihood of the trial getting culminated at the earliest. 16. 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. Page No.# 6/7 17. 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. 18. Since, the petitioner is found entitled to get bail due to prolonged incarceration, his plea regarding violation of his fundamental rights guaranteed under Article 22(1) of the Constitution of India due to non-furnishing of grounds of arrest is, therefore, not discussed in detail. 19. 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, Rangia, Kamrup, with the following conditions: i. That the petitioner shall co-operate in the trial of NDPS Case No. 24/2021, which is pending in the Court of the learned Additional Sessions Judge, Rangia, Kamrup; 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 jurisdiction of the Trial Court without Page No.# 7/7 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 20. This bail application is accordingly disposed of. JUDGE Comparing Assistant