Page No.# 1/9 GAHC010122632024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1780/2024 MD. ABDUL ALI S/O MD. MAINUDDIN ALI R/O MUKTAPUR P.S. BAIHATA CHARIALI DIST. KAMRUP, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. S MUNIR, MR. AJAY SARMA,MR. C K NATH Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 21.05.2025 1. Heard Mr. S. Munir, the learned counsel for the petitioner. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor for the State respondent. 2. This application under section 483 of BNSS, 2023 has been filed by the Page No.# 2/9 petitioner, namely, Md. Abdul Ali, who has been detained behind the bars since 11-09-2023 (for more than 1 year 8 months) in connection with NDPS Case No.03/2024 under Section 21 (c)/29 of NDPS Act, 1985, which is pending in the Court of learned Special Judge, Kamrup, Amingaon. 3. The gist of accusation in this case is that on 11.09.2023, one Saddam Ansari, S.I. of Police of Rani police outpost had lodged an FIR before the Officer- In-charge of North Guwahati Police Station, inter-alia, alleging that on that day, at around 4:00 PM an information was received through reliable sources by the Additional S.P. (Headquarter),Kamrup that the present petitioner along with his associates, Inamul Ali and Abdul Ali would be carrying some contraband in Black colour Hyundai Creta vehicle bearing Registration No. AS01FE1589 belonging to the present petitioner. Accordingly, a naka-checking was set up at Amingaon, near Saraighat Bridge. At around 7:00 PM on that day a Thar vehicle bearing Registration No. AS01FM7800 was found coming from Guwahati side and when the said vehicle was tried to be stopped, the occupants of the said vehicle made attempt to escape from the said vehicle. However, they were apprehended, namely, 1. Haopu Singso, 2. Gogou Haokip and 3. Samingon Doungel. During interrogation, those apprehended persons informed that the present petitioner and his associates were waiting for them in front of Hotel Sanchika in Amingaon. During search of the seized Thar car on being pointed by the apprehended persons 170 numbers of soap boxes containing suspected heroin were recovered from hidden chamber of the said Thar vehicle and the total weight of the recovered contraband was found to be 2kg 100grams. 4. The learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars for more than one year eight months, and till date, out of nine prosecution witnesses, only three prosecution witnesses have Page No.# 3/9 been examined. He also submits that those three witnesses are again recalled by the Trial Court for further examination and, therefore, there is unlikelihood of early culmination of the trial, and on the ground of prolonged incarceration, he has prayed for bail. 5. He has also submitted that the petitioner has been implicated in this case on the basis of the statement of the co-accused and, therefore, he submits that there is no direct evidence against the petitioner in this case, and the statement of co-accused cannot be used as an evidence against an accused in a case involving an offence under NDPS. He cites the judgment of “Tofan Singh Vs. State of Tamil Nadu” reported in “(2021) 4 SCC 1,”, in support of his submission. 6. He also submits that though the petitioner was arrested at the time on 11.09.2023, and he was served with a notice under Section 50 of the Code of Criminal Procedure, 1973, however, the said notice does not contain any ground of the arrest, and hence, he is also entitled to get bail on the ground of violation of his constitutional rights, guaranteed under Article 22(1) of the Constitution of India. 7. The learned Additional Public Prosecutor has opposed the grant of bail to the petitioner on the ground that in this case, huge quantity of contraband, i.e., 2 kg 100 grams of heroin is involved and, therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 8. He also submits that the grounds of arrest were orally informed to the petitioner at the time of his arrest. Though, he admits that in the notice served on the petitioner under Section 50 of the Code of Criminal Procedure, 1973, no grounds of arrest has been mentioned. 9. He, however, submits that the necessity of furnishing written grounds Page No.# 4/9 of arrest is applicable only after coming into effect of the judgment of the Apex Court, in the case of “Pankaj Bansal Vs. Union of India” reported in “(2024) 7 SCC 576”. 10. He submits that same has been clarified by the Apex Court in its judgment in “Ram Kishan Arora Vs. Enforcement of Directorate” reported in (2024) 7 SSC 599, wherein the Apex Court has observed that, as in the judgment of “Pankaj Bansal Vs. Union of India” reported in “(2024) 7 SCC 576” the Apex Court had directed to comply with the necessity of written grounds of arrest with immediate “Henceforth”. The Apex Court in the case of Ram Kishan Arora (Supra) has clarified the word “Henceforth” to be meaning that the judgment would be applicable prospectively only. 11. The learned Additional Public Prosecutor also submits that in this case, it is not only on the basis of statement of the co-accused only that the petitioners were arrested. They were found waiting to receive the contraband from the apprehended accused persons in a Dhaba from where they were arrested by police and, therefore, their complicity is apparent in this case. 12. The learned Additional Public Prosecutor has also submitted that in this case, it is not only on the basis of statement of the co-accused only that the petitioners were arrested and, therefore, their complicity is apparent in this case. 13. The learned Additional Public Prosecutor has also submitted that three prosecution witnesses are not recalled for further examination but are recalled on the prayer of the accused persons for further cross-examination and therefore, the prosecution side is not at fault for long period which has been take for completion of the trial. Page No.# 5/9 14. I have considered the submissions made by the counsel for both sides and have gone through the scanned copy of the records of NDPS Case No.03/2024, which was the requisition in connection with this case. 15. Though, the petitioner has prayed for bail in this case on many grounds however, as the grounds taken by him regarding violation of his constitutional right under Article 21 of the Constitution of India due to prolonged incarceration appears to be serious in nature, therefore, this Court is inclined to consider the same ground at the very beginning. 16. The learned counsel for the petitioner has also submitted that in the meanwhile, two other accused persons who were apprehended along with the petitioner from the Dhaba namely, Md. Khalilur Rahman and Inamul Ali have already been granted bail. Md. Khalilur Rahman has been released on ba il by this Court by order dated 06.05.2025 in Bail Application No. 1051/2025, whereas Inamul Ali has been released by a Coordinate Bench of this Court on 20.05.2025 in Bail Application No.1261/2025. 17. As regards the ground of prolonged incarceration is concerned, the Apex Court has observed I n the case of “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” (Supra) 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”. 18. The Apex Court in “Rabi Prakash Vs. State of Orissa” (Supra) 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 Page No.# 6/9 under Section 37(1) (b)(ii) of the NDPS Act.” 19. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” (Supra), 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.” 20. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation & Another” (Supra) 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 Page No.# 7/9 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.” 21. In the instant case also, the petitioner has been detained behind the bars for more than 1 year and 8 months, and only 3(three) out of total 9(nine) listed prosecution witnesses have been examined. Though those 3(three) witnesses have again been recalled on application of the counsel for the co- accused, the submission of the learned Additional Public Prosecutor that it is due the fault of the petitioner that the trial is not progressing is not tenable, under the facts and circumstances of this case. The petitioner has been detained behind the bars since the date of his arrest and there appears to be no fault on his part for delay in trial. 22. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited hereinabove, 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 Page No.# 8/9 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. 23. As such, this Court is of the considered opinion that the petitioner is entitled to get bail in the instant case on the ground of prolong incarceration only. 24. As the petitioner is found entitled to bail on the ground of prolong incarceration, this Court is not inclined to consider the other ground be assailed by the petitioner in this bail application. 25. In view of the above, the above-named petitioner, is allowed to go on bail of Rs. 2,00,000/- (Rupees Two 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 learned Special Judge, Kamrup, Amingaon with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 03/2024, which is pending in the Court of the learned 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.# 9/9 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 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 vi. That the petitioner shall not commit any offence while on bail; vii. That any violation of the above conditions shall be a good ground for the Trial Court to get the petitioner arrested and commit him to custody. 26. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant