Page No.# 1/6 GAHC010142082025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2139/2025 NAJIR AHMED AND ANR S/O AHID MIAH R/O KALAPANIA, SOBHAPUR P.O. ROBINDRA NAGAR P.S. SONAMURA DIST. SEPAHIJALA, TRIPURA. 2: CHHADEK MIAH S/O CHARU MIAH R/O KALAPANIA SOBHAPUR P.O. ROBINDRA NAGAR P.S. SONAMURA DIST. SEPAHIJALA TRIPURA VERSUS THE UNION OF INDIA TO BE REP. BY THE NARCOTICS CONTROL BUREAU. Advocate for the Petitioner : MR. M A CHOUDHURY, U U KHAN,MR. A AHMED Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 29.07.2025 1. Heard Mr. M. A. Choudhury, learned counsel for the petitioners. Also Page No.# 2/6 heard Ms. M. Deka, learned counsel for the NCB. 2. This application under Section 483 of BNSS, 1973 has been filed by the petitioners, namely, 1. Najir Ahamed and 2.Chhadek Miah, who have been detained behind the bars since 15.03.2022, (for more than 3 years and 4 months), in connection with NDPS Case No. 202/2022 under Sections 21(c)/29 of the NDPS Act, 1985 pending before the Court of learned Additional Sessions Judge, FTC, No. 3, Kamrup(M), Guwahati. 3. The gist of accusation in this case is that on 11.11.2022, the Narcotic Control Bureau had filed a complaint before the learned Sessions Judge, Kamrup(M), inter alia, alleging that on receipt of an information through reliable sources on 13.03.2022 that a vehicle bearing Registration No. NL-02-N-6922 would be carrying a huge quantity of codeine based Eskyf cough syrup from Uttar Pradesh towards Tripura. Accordingly, a search team was constituted and a naka checking was arranged in front of Health City Hospital Area, National Highway No. 37, Khanapara, Guwahati. During naka checking, the aforesaid truck was intercepted. During search of the said truck, 29,900 bottles of codeine based Eskyf cough syrup were recovered and both the petitioners were found in the said vehicle. 4. The learned counsel for the petitioners has submitted that the petitioners are prayed for bail mainly on the ground of prolonged incarceration. He submits that both the petitioners are detained behind the bars for more than 3 years and 4 months. However, till date only four out of ten listed witnesses have been examined. He also submits that further examination of PW-3 is reserved. 5. The learned counsel for the petitioners further submits that considering the fact that six more witnesses are yet to be examined and there is unlikelihood of the trial being concluded at the earliest. He submits that the prolonged Page No.# 3/6 incarceration of the petitioners have resulted in violation of the fundamental rights of the petitioners guaranteed to them under Article 21 of the Constitution of India and in such cases, the embargo of Section 37 of the NDPS Act, 1985 would be overridden by the fundamental rights of the petitioners, hence, he prays for allowing the petitioners to go on bail. 6. On the other hand, learned counsel for the NCB has vehemently opposed the grant of bail to the petitioners on the ground that the quantity of contraband seized in this case is of commercial quantity. She also submits that the embargo of Section 37 of the NDPS Act, 1985 would be applicable to this case. She also submits that the contraband in this case was recovered from conscious possession from the both the petitioners. 7. The learned counsel for the NCB also submits that only six witnesses are to be examined and it is likelihood the trial will culminate soon. Hence, she opposes grant of bail to the petitioners. 8. I have considered the submissions made by the learned counsel for both sides and have gone through the scanned copy of the case records of NDPS Case No. 202/2022, 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 Page No.# 4/6 the statutory embargo created under Section 37(1) (b)(ii) of the NDPS Act.” 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. 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.” 13. In the instant case also, the petitioners are languishing behind the bars for more than 3 years and 4 months and only four out of ten prosecution witnesses have been examined. It is unlikelihood that the trial would culminate soon in the aforesaid case. 14. This Court is of considered opinion that in view of the observation made by Page No.# 5/6 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 petitioners, they are kept under detention for a long period, it would certainly infringe their fundamental rights guaranteed under Article 21 of the Constitution of India. Under such circumstances, their 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 they would be entitled to get bail on the ground of prolonged incarceration only. 15. Under the facts and circumstances of this case, in the considered opinion of this Court, the long incarceration of the petitioner has, in the instant case as well, outweighed the embargo of Section 37 of the NDPS Act, 1985. Therefore, they are entitled to get bail on the ground of the infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. 16. In view of the above, the above named petitioners are allowed to go on bail of Rs.1,00,000/- (Rupees One Lakh only) each with two sureties of like amount subject to the satisfaction of the learned Additional Sessions Judge, FTC, No. 3, Kamrup(M), Guwahati with the following conditions: i. That the petitioners shall co-operate in the trial of NDPS Case No. 202/2022, which is pending in the Court of the learned Additional Sessions Judge, FTC, No. 3, Kamrup(M), Guwahati; ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioners 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; Page No.# 6/6 iv. That the petitioners 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 petitioners shall submit their leave address and contact details during such leave before the Trial Court; and 17. This bail application is accordingly disposed of. JUDGE Comparing Assistant