Page No.# 1/8 GAHC010135352025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2023/2025 SHAJAN MIAH S/O LATE TEZU MIAH R/O VILL- JAGALIA, P.O. BISHALGARH, P.S. BISHALGARH, DIST. SEPAHIJALA, TRIPURA-799102 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, NCB. Advocate for the Petitioner : MR. M A SHEIKH, MS S AHMED,MS F INTAZ Advocate for the Respondent : SC, NCB, Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 22.07.2025 1. Heard Mr. M. A. Sheikh, the learned counsel for the petitioner. Also heard Ms. M. Deka, the learned counsel for NCB. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, 1. Shajan Miah, who who has been detained behind the bars since 18.03.2023 (for last 2 years 4 months) in connection with NDPS Case No.133/2023 ((corresponding to NCB Crime No.05/2023) under Section 20(b)(ii)(C)/29 of the NDPS Act,1985, pending before the Court of learned Additional Sessions Judge No.2, Kamrup(M). 3. The gist of the accusation in this case is that the NCB counsel has lodged a complaint before the Court of the learned Additional Sessions Judge No.2, Kamrup(M), inter alia alleging that on receipt of an information through reliable sources on 17.03.2023 that the petitioner was carrying huge quantity of ganja concealed in specially made cavity over passenger’s sitting area of vehicle bearing registration no. TR-01-B4-290, a search operation was conducted and during the Naka Checking, the aforesaid vehicle was intercepted. 4. At the time of search operation, 19 packets of ganja weighing about 119.62 kgs were recovered from the said vehicle and the petitioner was apprehended therefore. 5. The learned counsel for the petitioner has submitted that Page No.# 3/8 the petitioner has been languishing behind the bars for more than 2 years 4 months and till date out of 13 prosecution witnesses listed in the charge-sheet, only 3 witnesses have been examined and there is unlikelihood of an early culmination of the trial. 6. The learned counsel for the petitioner has submitted that the long incarceration of the petitioner has infringed his fundamental rights guaranteed to him under Article 21 of the Constitution of India and as such, the embargo of Section 30 of the NDPS Act has been overrated in this case and he is entitled to bail on that count. 7. The learned counsel for the petitioner has further submitted that in the meanwhile, 3 of the co-accused who were also arrested along with the petitioner in the same case have already been granted bail by a Coordinate Bench of this Court on 08.05.2025 in Bail Appl. No.1206/2025. He, therefore, submits that as the petitioner stands in the same footing to that of the co-accused who have already been granted bail, he is also entitled to get bail on the ground of parity. 8. On the other hand, the learned counsel for NCB has vehemently opposed the grant of bail to the present petitioner. She submits that the present petitioner does not stand on the same footing as that of the accused persons who are already granted bail as the seized contraband was recovered from conscious possession of the present petitioner. 9. She also submits that in the instant case, quantity of contraband seized is of commercial quantity and therefore, the Page No.# 4/8 embargo of Section 37 of the NDPS Act is applicable to this case. 10. She further submits that the delay in progress of the trial has been also caused by frequent adjournments taken by the defence counsel during the trial. She points out on three occasions, the trial had to be adjourned on the prayer of the defence counsel. She therefore, opposes the grant of bail to the present petitioner. 11. In support of her submission, she has cited ruling of the Apex Court in the case of Pallulabid Ahmad Arimutta & Anr. Vs. Union of India, reported in (2022), 2 Supreme 409. She also cited a ruling of the Apex Court in the case of Narcotics Control Bureau Vs. Kashif, reported in (2024) SCC Online SC 3848. 12. 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.133/2023, which was requisitioned in connection with this case. 13. 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”. 14. 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 Page No.# 5/8 created under Section 37(1) (b)(ii) of the NDPS Act.” 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 Page No.# 6/8 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 2 years and 4 months. Only three witnesses have been examined till date. 17. Though, the ground of parity may not be applicable in all the circumstances as has been rightly submitted by learned counsel for the NCB, however, in this case, this Court is of the considered opinion that the detention of the petitioner is long enough and such a long incarceration would result into infringement of fundamental rights of the petitioner guaranteed under Article 21 of the Constitution of India and on that count he is entitled to get bail. 18. In view of the above, the petitioner, namely, Shajan Miah, 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 the learned Additional Sessions Judge No.2, Kamrup(M) with the following conditions - i. That the petitioner shall cooperate in the trial of NDPS Case No.133/2023, which is pending in the Court of the learned Additional Sessions Judge No.2, Kamrup(M). Page No.# 7/8 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 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. Page No.# 8/8 19. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant