Page No.# 1/7 GAHC010125642024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1884/2024 BINESH KUMAR ROY S/O SUDAMA SINGH R/O PANMARIMATHIYA P.O. PANMARI, P.S. SIGRAHATA DIST. BHOJPUR, BIHAR-802222 VERSUS UNION OF INDIA REPRESENTED BY SC, NCB Advocate for the Petitioner : MS. S K NARGIS, MS N SULTANA,MS S BEGUM Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 29.07.2025 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 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Binesh Kumar Roy, who has been detained behind the bars since 06.04.2022, (for more than 3 years and 3 months), Page No.# 2/7 in connection with NDPS Case No. 27/2022 corresponding to NCB Crime No. 9/2022 under Sections 8(c)/20(b)(ii)(c)/29 of the NDPS Act, 1985. 3. The gist of accusation in this case is that the Narcotic Control Bureau had filed a complaint on 30.09.2022 against five accused persons including the present petitioner, inter alia, alleging that on 05.04.2022, the Intelligence Officer, NCB, received an information regarding transportation of huge quantity of suspected ganja in a truck bearing registration No. NL-02-Q-9773, a search team was constituted and it proceeded to National Highway No. 31, Balagaon, Rangia and conducted naka checking there. During naka checking, the aforementioned truck was intercepted and the present petitioner, who was driving the said truck was arrested. During search of the said truck, 113 numbers of packets of suspected ganja weighing about 4601.780 kg was recovered. 4. The learned counsel for the petitioner has submitted that the petitioner has been languishing behind bars for last more than three years and three months and only four of the listed prosecution witnesses have been examined and there is unlikelihood of early culmination of the trial. She submits that, in the meanwhile, the Trial Court has allowed one of the co-accused to go on bail on the ground of prolonged incarceration. 5. The learned counsel for the petitioner submits that the incarceration of the present petitioner for more than three years and three months is also long enough so as to infringe his fundamental rights guaranteed under Article 21 of the Constitution of India. She submits that under such circumstances, the petitioner is entitled to go on bail on the grounds of prolonged incarceration. In support of her submission, the learned counsel for the petitioner has cited ruling of the Apex Court in the case of “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352”, “Rabi Prakash Vs. State of Orissa” reported in “2023 Page No.# 3/7 SCC Online SC 1109,” and several other rulings. 6. The learned counsel for the petitioner has also submitted that, in the instant case, at the time of arrest of the present petitioner, though notice under Section 50 Cr.P.C. was served on him, it did not contain any grounds of arrest, hence, there has been violation of the fundamental rights of the petitioner under Article 22 of the Constitution of India and on that count also, he is allowed to go on bail. She cites the ruling of the Apex Court in the case of “Vihaan Kumar Vs. State of Haryana”, reported in “(2025) 5 SCC 799”. 7. On the other hand, learned standing counsel for the NCB has opposed the grant of bail to the petitioner. He has submitted that the quantity of contraband recovered from conscious possession of the petitioner is commercial quantity, and therefore embargo of Section 37 of the NDPS Act is applicable for this case. He also submits that, in the case of “Rabi Prakash Vs. State of Orissa” (supra), only 1 out of 19 witnesses were examined when the petitioner was granted bail in that case. However, in this case, only 5 witnesses remains to be examined, which would not take much time. He also submits that, in the case of “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” (supra), the petitioner of that case was in jail for 7 years which is not the case in the incident case, and hence the benefit of said rulings may not be given to the petitioner. 8. The learned standing counsel for the NCB has also cited ruling of the Apex Court in the case of “S.C. Legal Aid Committee Vs. Union of India” has submitted that in the instant case, the petitioner has not suffered imprisonment for a period which is half of the maximum punishment prescribed for the offence alleged in this case. Hence, he submits that any incarceration less than half of the maximum punishment prescribed for the offence may not be regarded as violative of fundamental rights of the petitioner. Page No.# 4/7 9. I have considered the submissions made by the learned counsel for both sides and have gone through the scanned copy of the records of NDPS Case No. 27/2022 which was called for in connection with this case. 10. The petitioner is seeking bail in this case mainly on two grounds. Firstly, due to prolonged incarceration and secondly, due to non-furnishing of the grounds of arrest to him in the notice under Section 50 of the Cr.P.C. which was served on him at the time of his arrest. 11. In this case, there is no dispute to the fact that the petitioner has been languishing behind the bars for more than 3 years and 3 months and the trial has not yet culminated. It is also not in dispute that one of the co-accused has been granted bail on the ground of prolonged incarceration by the Trial Court and the NCB has not preferred any appeal against the said order of the bail. 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 the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985”. 13. 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.” 14. 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 Page No.# 5/7 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.” 15. In this regard the observations made by the Apex Court in the case of “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.” 16. In the instant case also, the petitioner has been detained behind the bars for more than 3 years and 3 months and only four out of nine prosecution witnesses have been examined. 17. 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) Page No.# 6/7 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he would be entitled to get bail on the ground of prolonged incarceration only. 18. As the petitioner is found entitled to get bail on the ground of prolonged incarceration, the second plea of non-furnishing of grounds of arrest to him, which was pressed by the learned counsel for the petitioner is not required to be discussed. 19. 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 subject to the satisfaction of the learned Special Judge, Rangia, Kamrup with the following conditions: i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 27/2022, which is pending in the Court of the Special 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 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 Page No.# 7/7 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 20. This bail application is accordingly disposed of. JUDGE Comparing Assistant