Page No.# 1/6 GAHC010140992025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2100/2025 SHAMBHU NATH PRASAD S/O- LATE BACHCHALAL PRASAD. R/O- VILL.- NEWKA GAON MATHIA, P.O.- DAYA CHAPRA, DIST.- BALIA, UTTAR PRADESH.PIN-277205 VERSUS THE UNION OF INDIA REPRESENTED BY THE SC, NCB Advocate for the Petitioner : MR. K K HANDIQUE, MS N M PEGU,MR. M K DEURI Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 04.09.2025 1. Heard Mr. K. K. Handique, learned counsel for the petitioner. Also heard Ms. N. Kakati,l earned counsel for the NCB. 2. This application under Section 483 of BNSS has been made by the petitioner, namely, Shambhu Nath who is detained behind the bars since 18.03.2023 (for last more than 2 years 5 months) in connection with NDPS Case Page No.# 2/6 No. 133/2023 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), Guwahati. 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 one Shajan Miah 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. The petitioner was apprehended on the basis of the statement of the arrested accused person. 5. The learned counsel for the petitioner has submitted that nothing was seized from the possession of the present petitioner, however, he has been languishing behind the bars for more than last 2 years 5 months. He also submits that till date only three out of thirteen prosecution witnesses have been examined and at the pace in which the trial presently going on, there is unlikelihood of an early culmination of trial. 6. The learned counsel for the petitioner has submitted that due to long incarceration of the petitioner, his fundamental rights guaranteed to him under Article 21 of the Constitution of India has violated and as such the embargo of Section 37 of the NDPS Act, 1985 has been overridden in this case and on that count he is entitled to get bail. Page No.# 3/6 7. The learned counsel for the petitioner ahs further submitted that in the instant case, the petitioner was not served with any notice under Section 50 neither the notice under Section 50A of the Cr.P.C. was furnished to any of the friends or relatives of the present petitioner and therefore, there has been violation of the fundamental rights of the petitioner under Article 22(1) of the Constitution of India which also entitles him to get bail in this case. He also submits that in the meanwhile six other co-accused persons have already been granted bail. 8. On the other hand, learned counsel for the NCB has opposed the grant of bail to the present petitioner. She has submitted that the contraband seized in this case is of commercial quantity and, therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. She also submits that the delay in progressing of the trial has also been caused by the frequent adjournments taken by the defence counsel during trial. She also submits that in this case at the time of arrest of the petitioner all the procedural requirements have been complied with by the NCB. She also submits that the petitioner has, during recording of his statement under Section 67 of the NDPS Act, confessed to the guilt regarding his complicity in the offence alleged in this case. She, therefore, submits that the prayer for bail may be rejected. 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.133/2023, which was requisitioned in connection with this case. 10. 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 Page No.# 4/6 37 of the NDPS Act, 1985” 11. 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.” 12. 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 Page No.# 5/6 shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own.” 13. In the instant case also, the petitioner has been detained behind the bars for more than 2 years and 5 months and only three witnesses have been examined till date. 14. 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. 15. Considering the fact that the petitioner has been found entitled to get bail on the ground of prolonged incarceration, the other grounds taken by the petitioner i.e., violation of his fundamental rights guaranteed to him under Article 22(1) of the Constitution of India is not discussed in this bail application. 16. 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 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). ii. That the petitioner shall appear before the Trial Court as and when so Page No.# 6/6 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 and; 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. 17. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant