Page No.# 1/7 GAHC010119352025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1856/2025 ABDUL SUBHAN S/O LATE ABDUL MONAF R/O VILL- LAMAJUAR, P.S. BADARPUR, DIST. SRIBHUMI, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M AHMED, MD I H LASKAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 28.08.2025 1. Heard Mr. M. Ahmed, the learned counsel for the petitioner. Also heard Mr. B. Sarma, the learned Additional Public Prosecutor for the State respondent. 2. This application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed by the petitioner, namely, Abdul Subhan, who is detained behind the bars since 17.06.2023 (for more than 2 years 2 months) in Page No.# 2/7 connection with Special NDPS Case No. 04/2022 under Section 22(c) of the NDPS Act, 1985 3. The gist of accusation in this case is that on 06.01.2022, one Sandeep Rawat, had lodged an FIR before the Officer-in-Charge of Badarpur Police Station inter-alia, alleging that on receipt of an information through reliable sources, the house of the present petitioner was searched and during search 1900 numbers of yaba tablets weighting about 172.13 grams were recovered therefrom. 4. The learned counsel for the petitioner has submitted that the petitioner was arrested on the strength of non-bailable warrant of arrest against him as he was shown as an absconder in the charge-sheet. 5. He submits that since the date of his arrest, the petitioner has been languishing behind the bars. 6. He further submits that though there are 9 listed prosecution witnesses in the charge-sheet, however, till date only 3 have been examined and at this stage, it is unlikely that the Trial Court would culminate soon. 7. The learned counsel for the petitioner has cited a ruling of the Apex Court in “Rabi Prakesh Vs. State of Orissa” reported in 2023 live law (SC) 533, 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.” 8. The learned counsel for the petitioner has also cited the rulings of the Apex Court in (i) “Shariful Islam @ Sarif Vs. State of West Bengal” (order dated 04.08.2022 in SLP Criminal No. 4173/2022), (ii) “Dheeraj Kumar Page No.# 3/7 Shukla Vs. State of Uttar Pradesh” [order dated 25.10.2023 passed in Special Leave to Appeal (Criminal) No. 6690/2022], (iii) “Anjan Nath V. The State Of Assam [Order dated 17.10.2023 passed in Special Leave to Appeal (Criminal) No. 9860/2023], (iv) “Nitesh Adhikari Vs. State of West Bengal“ (Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022) and (v) “Md. Salman Hanif Shaikh Vs. State of Gujarat” (Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), wherein the petitioners (who were facing trial for possessing a commercial quantity of contraband) were granted bail by the Apex Court. However, due to the prolonged incarceration in all the above mentioned cases, the petitioners were allowed to go on bail. Therefore, on the same principle, the learned counsel for the petitioner has also submitted that in the instant case also the petitioner, who has been languishing behind the bars for more than 2 years 2 months may be allowed to go on bail. 9. On the other hand, the learned Additional Public Prosecutor has opposed the grant of bail to the present petitioner on the ground that the seized contraband was received from the premises of the petitioner and as it is of commercial quantity, the embargo of Section 37 of the NDPS Act, 1985 is applicable in the instant case, and therefore, he may not be allowed to go on bail. 10. The learned Additional Public Prosecutor has submitted that in the rulings of the Apex Court cited by the learned counsel for the petitioner it do not indicate any ratio on the basis of which the petitioners in the said cases were allowed to go on bail. 11. I have considered the submissions made by learned counsel for both sides and have perused the materials on record, including the scanned copy of the trial court record which was requisitioned in connection with this case. Page No.# 4/7 12. It appears from the record that since the date of arrest, i.e. 17.06.2023, the petitioner has been detained behind the bars and though the charges were framed on 11.10.2023, however, till now, only three (3) prosecution witnesses out of total nine (9) listed witnesses have been examined and, therefore, there is an unlikelihood of earlier culmination of the trial. 13. 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”. 14. The Hon'ble Apex Court in “Rabi Prakesh Vs. State of Orissa” (Supra) 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.” 15. 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. 16. 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 a case, this 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 Page No.# 5/7 case of prolonged incarceration, the right to life and personal liberty guaranteed to the petitioner under Section Article 21 of the Constitution of India would outweigh the fetter imposed under Section 37 of the NDPS Act, 1985. 17. 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 a 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. 18. 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. 19. 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. 20. 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. 21. In the instant case also, the present petitioner has been detained behind the bars for last 2 years 2 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 Page No.# 6/7 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, Abdul Subhan is allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand 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 trial court with the following conditions: i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 04/2022, which is pending in the Court of learned Sessions Judge, Sribhumi; 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, 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 Page No.# 7/7 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. 24. Let a copy of this order be furnished by the Registry of this Court. JUDGE Comparing Assistant