Page No.# 1/8 GAHC010125002025 2025:GAU-AS:9968 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1926/2025 GOVIND SHAH @ GOBIND SHAW S/O- LATE MITHILESH SHAH. R/O- MADHUBANI. P.S.- LADANIA, BIHAR, PIN-847232. VERSUS UNION OF INDIA REPRESENTED BY THE SC, NCB Advocate for the Petitioner : MR J K Bhuyan, MS. P GHOSH,MS B GOGOI Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 01.08.2025 1. Heard Mr. J.K. Bhuyan, the learned counsel for the petitioner. Also heard Mr. M. Deka, the learned counsel appearing on behalf of the NCB. 2. This application under Section 483 of the Bharatiya Nagarik Page No.# 2/8 Suraksha Sanhita(BNSS), 2023 has been filed by the petitioner, namely, Govind Shah @ Gobind Shaw, who has been detained behind the bars since 05.04.2021 (for more than 04 years 03 months), in connection with NDPS Case No. 32/2020 arising out of NCB Crime No. 16/2019 under Sections 20(b)(ii)(c) of the NDPS Act, 1985 pending in the Court of learned Special Judge, (NDPS Case) Kamrup (M), Guwahati. 3. The gist of accusation in this case is that on 17.04.2020, the Narcotic Control Bureau represented by one Manish Modi, Intelligence Officer, Guwahati Zonal Unit, Guwahati, lodged a complaint before the learned Special Judge, Kamrup(M), Guwahati against four numbers of accused persons, namely, (1) Sandeep, (2) Suraj Singh, (3) Sandeep Kaushik and (4) Govind Shah @ Gobind Shaw, inter alia, alleging that on 20.10.2019 at about 1700 hours, the Intelligence Officer, NCB, Guwahati got an information through reliable sources that two persons, namely, Sandeep and Suraj Singh are carrying huge quantity of Ganja concealed in a special chamber behind the cabin of a truck bearing Registration No. HR- 63C-6237, accordingly a team of NCB was constituted and a naka checking was conducted and the vehicle bearing Registration No. HR-63C6237 was intercepted near Raju Dhaba, Kothari Supermarket, Beltala, at National Highway No. 37. During search operation, two persons were found in the said vehicle, namely, Sandeep and Suraj Singh and on search of the vehicle, 243.8 kgs of ganja (cannabis) were recovered from the said vehicle and on the basis of the aforesaid complaint, NDPS Case No. 32/2020 was registered. 4. The learned counsel for the petitioner also submits that Page No.# 3/8 petitioner was not found in the conscious possession of the ganja which has been seized in this case. 5. He submits that the petitioner has been arrested in this case only on the basis of the statement recorded by the co-accused persons. 6. He also submits that in view of the ruling of the Apex Court in the case of “Tofan Singh Vs. State of Tamil Nadu” reported in “(2021) 4 SCC 1”, the statement of co-accused recorded under Section 67 of the NDPS Act, 1985 is inadmissible as evidence in a trial involving offence under NDPS Act, 1985. 7. He further submits that though the petitioner has been detained behind the bars for more than 04 years 03 months, till date only 4(four) out of 10(ten) listed persecution witnesses have been detained, and there is unlikelihood of trial getting culminated at the earliest. 8. He also submits that 3(three) co-accused have already been granted bail by this Court on the ground of prolonged incarceration. 9. The learned counsel for the petitioner has also submitted that by keeping the present petitioner detained behind the bars for a long period and if any delay in the trial is caused either due to the prosecution side or the court and where there is no fault of the present petitioner, it would certainly violate the fundamental rights guaranteed to the present petitioner under Article 21 of the Constitution of India and hence, she has submitted that the petitioner is entitled to get bail solely on the ground of prolonged incarceration as such a prolonged incarceration has violated the fundamental right to life and personal liberty guaranteed to him by Article Page No.# 4/8 21 of the Constitution of India. 10. On the other hand, the learned counsel for the NCB has vehemently opposed the grant of bail to the present petitioner and has submitted that the quantity of contraband involved in this case is of commercial quantity, and therefore the embargo Section 37 of the NDPS Ac, 1985 is applicable to this case. 11. She also submits that the petitioner is a habitual offender dealing with the offences involving NDPS Act, 1985. She submits that he has been involved in NCB Crime No. 16/2019, 06/2019, and 12/2020 and 02/2019 and in view of the multiple cases pending against the petitioner, there is no assurance that he would not indulge in commission of similar offences again if he is released on bail at this stage. 12. The learned counsel for the NCB also submits that one of the co- accused, namely, Suraj Singh, who was granted bail by this Court on the ground of prolonged incarceration, has jumped bail and therefore, the trial is not progressing. 13. She submits that if the petitioner is allowed to go on bail, there is also likelihood that he would not evade the course of justice. 14. I have considered the submissions made by the learned counsel for both sides and have gone through the scanned copy of the records of Special NDPS Case No. 32/2020. 15. On perusal of the records of this case, it appears that the petitioner was not found at the spot when the seized contraband was Page No.# 5/8 recovered from the vehicle in this case. 16. He has been implicated later on, on the basis of the statement made by the co-accused. Though, it appears that there are 4(four) other cases pending against the petitioner involving offences under the NDPS Act, 1985, however, the same may not be a ground for prolonging incarceration in this case. 17. 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”. 18. Similarly, the Apex Court of India has also observed in “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC OnLine SC 1109” wherein, it observed that “prolonged incarceration, generally militates against the most precious fundamental right 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.” 19. Though, the provisions of section 37 of the NDPS Act, 1985 are very stringent in nature and same has to be interpreted keeping in the mind the object and purpose of the Act, however, it is also to be kept in mind that the NDPS Act, 1985 also mandates speedy and expeditious trial of offences under the said Act. If there is undue delay in the trial and the accused has been detained for long period, his fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution of Page No.# 6/8 India would outweigh the embargo of Section 37 of the NDPS Act, 1985. 20. This Court is also of the considered opinion that while considering an application for bail involving commercial quantity of contraband, if the court comes to a finding that there has been undue delay in completion of the trial and that there has been prolonged incarceration of the petitioner during this time, he would be entitled to get bail in such case of prolonged incarceration as the fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37 of the NDPS Act, 1985. 21. It is also pertinent to mention herein that the Supreme Court of India had granted bail to the 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 in SLP Criminal No. 4173/2022), wherein the accused was detained behind the bars for one year and six months. 22. In “Nitesh Adhikari @ Bapan Vs. State of West Bengal” (Order dated 01.08.2022 in SLP Criminal No. 5769/2022) the 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. 23. In the instant case also, the petitioner has been detained behind the bars for more than 04 years 03 months and only four witnesses have been examined by the prosecution side till date. There seems to be no fault on the part of present petitioner which has caused the delay in trial as he has been detained behind the bars since the date of his arrest. Page No.# 7/8 24. Though one of the co-accused has jumped bail, however that in itself may not be a ground for denying bail to the petitioner on the ground of prolonged incarceration, as another co-accused who was granted bail on the same ground is reported to be regularly appearing before the Trial Court. 25. In view of above, the above-named petitioner is hereby directed to be released on bail on furnishing a bond of Rs. 2,00,000/- (Rupees Two Lakhs) with two suitable sureties, one of whom should be a government employee and should be resident of the State of Assam, of like amount to the satisfaction of the Trial Court with following conditions: - i. That the petitioner shall cooperate in the trial of NDPS Case No. 32/2020, which is pending in the Court of learned Special Judge, (NDPS Case) Kamrup (M), Guwahati; ii. That the petitioner shall regularly 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 their contact details including photocopies of his Aadhar Card, Driving Page No.# 8/8 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 learned 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. 26. With the above observations, this bail application is hereby disposed of. JUDGE Comparing Assistant