Page No.# 1/6 GAHC010127592025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1958/2025 MD JAYAD KHAN S/O MD. ABAS KHAN R/O SANHAIYUMPHAM PART-II, CHERAPUR, CITY- SANGAIYUMPHAM, P.O. WANGJING, P.S. THOUBAL, DIST. THOUBAL, STATE- MANIPUR-795148. VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, NARCOTICS CONTROL BUREAU (NCB). Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,J SINGPHO Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 24.07.2025 1. Heard Mr. M. Biswas, the learned counsel for the petitioner. Also heard Ms. M. Deka, learned counsel, NCb 2. This application under Section 483 of the BNSS, 2023 has been filed by the petitioner, namely, Md. Jayad Khan, who has been detained behind the bars since 29.10.2023 (for the last 1 year 8 months and 25 Page No.# 2/6 days) in connection with NDPS Case No. 12/2025 corresponding to NCB Crime No. 18/2023 under Sections 21(c)/29 of NDPS Act, 1985 pending before the Court of learned Sessions Judge, Kamrup, Amingaon. 3. The gist of accusation in this case is that on 22.04.2024, the Narcotic Control Bureau had filed a complaint before the Court of learned Sessions Judge-cum-Special Judge, Kamrup (M), Guwahati, inter alia, alleging that on 28.10.2023 an information was received from reliable source by the Independent Officer of NCB to the effect that huge quantity of heroin would be transferred from Manipur in a vehicle bearing Registration No. AS01AE8182. Accordingly, an operation was conducted and during search operation, the aforesaid vehicle was intercepted and 409 grams of suspected heroin was recovered from the secret cavity under the driver seat of the aforesaid vehicle. 4. Learned counsel for the petitioner has submitted that though the petitioner was served with notice under Section 50 of the Cr.P.C. when he was arrested, however, said notice does not contain any ground of arrest. He also submits that even in the memorandum of arrest which was prepared when the petitioner was arrested the basic facts which necessitated his arrest were not disclosed there. Hence, he submits that there has been violation of Article 22(1) of the Constitution of India and on that ground he is entitled to get bail. He further submits that the petitioner has been languishing behind the bar for last one year 8 months and 25 days. However, till date not even a single prosecution witness has been examined and it is unlikely that the trial would culminate soon. He, therefore, submits that fundamental right of the petitioner guaranteed Page No.# 3/6 under Article 21 of the Constitution of India has been infringed due to his prolonged incarceration and under such circumstances the embargo of Section 37 of the NDPS Act is not applicable in this case. Learned counsel for the petitioner has cited Rulings of the Apex Court in support of his submission. 5. On the other hand, learned counsel for the NCB has vehemently opposed in granting bail to the present petitioner on the ground that the petitioner caught red handed with the seized contraband. She also submits that the seized contraband which is 409 grams of heroin is of commercial quantity and therefore, the embargo of Section 37 is applicable to this case. She submits that though notice served on the petitioner under Section 50 of the Cr.P.C., the specific grounds were not mentioned. However, in the arrest memo there has been clear indication as to why the petitioner was arrested in connection with the aforesaid case and on the arrest memo the petitioner has put his signature also acknowledging that he has received the said arrest memo at the time of his arrest. She submits that this specify to comply with the mandate of Article 22(1) of the Constitution of India. 6. Learned counsel for the NCB further submits that the petitioner is not entitled to get the benefit of prolonged incarceration in this case as it is due to the conduct of the present petitioner the trial got delayed. She submits that on four specific dates i.e. on 08.07.2024, 05.08.2024, 19.08.2025 and 30.08.2024 when the case was fixed for consideration of charges, the present petitioner took adjournments on the ground that his counsel was not there before the trial court on the same dates. She Page No.# 4/6 submits that as the trial court delayed due to the fault of the present petitioner, he may not be given the benefit of bail on the ground of prolonged incarceration. 7. In response to the submission made by the learned counsel for the NCB, learned counsel for the petitioner has submitted that even if it is accepted that the trial got delayed due to absence of the counsel of the petitioner on the dates when the case was fixed for consideration of charges before the trial court, the said period comes 52 days and even if the said period is deducted from the total period of incarceration undergone by the petitioner still it would come to more than 1 year 6 months which he submits that is long enough to got the benefit of bail. 8. I have considered the submissions made by the learned counsel for both sides and have gone through the scanned copy of the record of NDPS Case No. 12/2025. 9. 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”. 10. 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.” Page No.# 5/6 11. 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.” 12. Let us first consider the submission made by learned counsel regarding entitlement of the petitioner to get bail on the ground of prolonged incarceration. 13. In the instant case on perusal of the scanned copy of the records it appears that till date not even a single prosecution witness has been examined. It also appears that the petitioner has been detained behind the bars for more than 1 year 8 months and 25 days even if we deduct the period for which delay was caused due to absence of the learned counsel for the petitioner before the trial court on the dates and consideration of charges, the said period would still be more than 1 year 6 months which in the considered opinion of this Court is long enough and such long incarceration in the considered opinion of this Court would infringe the fundamental right of the petitioner guaranteed to him under Article 21 of the Constitution of India and under such circumstances, the 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 Page No.# 6/6 entitled to get bail on the ground of prolonged incarceration only. 14. As the petitioner has been found to be entitled to get bail on the ground of prolonged incarceration, this Court is not inclined to dispose of the plea of the petitioner as regards the non furnishing of the grounds of arrest to him when he was arrested in this case as he has been already found to be entitled to get bail. 15. For the aforesaid reason, the above named petitioner is allowed to go on bail of Rs.2,00,000/- with two sureties of like amount to the satisfaction of learned Sessions Judge, Kamrup, Amingaon with following conditions: (i) the petitioner shall appear before the Investigating Police Officer as and when called for and shall co-operate with the investigation; and (ii) the petitioner shall not directly or indirectly make any inducement, threat or promise to the informant or to any other person who may be acquainted with the facts of the case so as to dissuade such person from disclosing such facts before the Investigating Officer or to any Court. 16. With the above observations, this bail application is accordingly disposed of. JUDGE Comparing Assistant