Page No.# 1/6 GAHC010148132024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2194/2024 PRAMOD RAY S/O LATE SAKAL RAY R/O KASBE AHAR, WARD NO. 12, P. O. AND P. S. -TAJPUR, SAMASTIPUR (BIHAR), PIN-848130 VERSUS THE UNION OF INDIA REP. BY THE SC, NCB Advocate for the Petitioner : MS. S K NARGIS, MS N SULTANA,MS S BEGUM Advocate for the Respondent : SC, NCB, BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 06.01.2025 Heard Ms. S.K. Nargis, learned counsel for the accused and also heard Mr. S.C. Keyal, learned standing counsel for the respondent NCB. Page No.# 2/6 2. This application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is preferred by accused, namely, Pramod Ray, who has been languishing in jail hazot since 12.08.2020, in connection with NDPS Case No.08/2021, arising out of NCB Crime No.12/2020, under Section 20(b)(ii)(c)/29 of the NDPS Act, for grant of bail. 3. It is to be noted here that the above noted case has been registered on the basis of one complaint lodged by Kausik Sarkar, Intelligence Officer, Narcotics Control Bureau (NCB), Guwahati Zonal Unit, Guwahati, on 03.02.2021. The essence of allegation made in the aforesaid complaint is that acting on a tip off, the Intelligence Officer had intercepted one Truck, bearing Registration No.NL-01AE-1397, near Tolaram Bafna Civil Hospital, Kamrup, Amingaon and after conducting search in the said Truck, he had recovered 707.050 kg of Ganja from the possession of three persons, namely, Tarun Kumar, Pramod Ray and Sujit Kumar. Thereafter, the Intelligence Officer seized the same by preparing seizure list. 4. Ms. Nargis, learned counsel for the accused submits that the accused was arrested on 12.08.2020 and since then he has been languishing in jail hazot for last 4 years 4 months and 25 days. Further, Ms. Nargis submits that as many as 8(eight) witnesses have been cited in the final complaint and out of 8 witnesses 3 have been examined so far and that the present accused was the driver of the Truck from where 707.050 kg of Ganja were recovered and that the owner of the vehicle has already been enlarged on bail by the Hon'ble Supreme Court and the present accused has no antecedent of criminal activities, whatsoever, and since the owner has already been granted bail, the present accused, being the driver is also entitled to bail and that the prosecution side got sufficient opportunities to establish the case, by producing all the witnesses, but, it has failed to availed the same and the trial is still going on and that Section 36(1) of the NDPS Act and Section 309(1) of the Cr.P.C. mandated speedy trial and the said mandate has Page No.# 3/6 been violated by the respondent authorities and that the right to speedy trial of the accused, as guaranteed under Article 21 of the Constitution of India, is violated and therefore, Ms. Nargis contended to allow this application. 5. To a pointed query of this Court as to how the accused will satisfy the twin requirement of Section 37 of the NDPS Act, Ms. Nargis submits that the accused has no antecedent of criminal activities and that the statutory provision cannot override fundamental right guaranteed to the accused under Article 21 of the Constitution of India. 6. Per contra, Mr. Keyal, learned standing counsel for the respondent NCB submits that the accused was the driver of the Truck and 707.050 kg of Ganja were recovered from the conscious possession of the accused and referring to the final complaint lodged by the NCB, Mr. Keyal submits that the accused has also made voluntary statement that he along with Tarun Kumar and Sujit Kumar were present at Melagarh jungle at the time of loading Ganja and he did the same for the sake of Rs.10,000/- and on earlier occasion also he had transported Ganja with another driver, namely, Binod and as such, he is a habitual offender and the allegations are serious and unless the requirement of Section 37 of the NDPS Act is satisfied with, bail cannot be granted to the accused and in support of his submission, Mr. Keyal has referred to a decision of Hon'ble Supreme Court in the case of Narcotics Control Bureau v. Kashif, reported in 2024 0 Supreme(SC) 1264 and another decision of Hon'ble Supreme Court in Jayshree Kanabar v. State of Maharashtra & Ors. [Criminal Appeal No...../2025, arising out of Special Leave Petition (Crl.) No.15341/2023] and also two other decisions of this Court in Bail Appln. No.2311/2024 and Bail Appln. No.3130/2024. 7. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the status report received from the learned Trial Court and also perused the scanned copy of Page No.# 4/6 the record. 8. It appears that the final complaint was filed against the accused on 03.02.2021 and thereafter, the learned Trial Court had framed charge against the accused on 16.11.2021. Further, it appears that the accused was the driver of the Truck, bearing Registration No.NL-01AE-1397, from where 707.050 kg of Ganja were recovered. It is also not in dispute that the aforesaid quantity of Ganja is a commercial quantity and as such, there is a requirement to satisfy the twin condition of Section 37 of the NDPS Act, that the accused is not guilty of the offence and that he will not commit any offence while on bail. 9. Though Ms. Nargis, learned counsel for the accused submits that as right to speedy trial is a fundamental right guaranteed under Article 21 of the Constitution of India and as the accused is languishing in jail hazot for more than 4 years, the statutory provision of Section 37 of the NDPS Act cannot override the provision of Article 21 of the Constitution of India, which is a fundamental right guaranteeing right to speedy trial, yet the said submission left this Court unimpressed in view of the decision of Hon'ble Supreme Court in the case of Kashif (supra), wherein in paragraph 39, Hon'ble Supreme Court has summarized the discussion in respect of granting bail under the NDPS Act as under:- “39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the Page No.# 5/6 seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (iv) Sub-Section (2) of Section 52A lays down the procedure as contemplated in Sub- Section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” 10. The other decision of Hon'ble Supreme Court in Jayshree Kanabar (supra), however, is not related to cases under the NDPS Act, but under Section 302 of the IPC. In the said case, it has been observed that grant of bail by High Court is not in exercise of power as a constitutional Court on the ground of violation of Part-III of the Constitution. In the other two cases, cited by Mr. Keyal also more or less strengthened his submission. 11. It is to be noted here that here in this case from the submission of Ms. Nargis and also from the documents placed on record, this Court is unable to derive satisfaction that the accused is not guilty of the offence and that he will not commit any offence while on bail. 12. In the conspectus of above factual situation and in view of the proposition of law laid down by Hon'ble Supreme Court in respect of granting bail, wherein the commercial Page No.# 6/6 quantity of contraband substances are involved, this Court is of the view that this is not a fit case where the bail can be granted to the accused at this stage. 13. It also appears that the trial is in progress and altogether 3 witnesses have been examined so far. Undoubtedly, there is some delay in conclusion of the trial and the same was, on account of one of the co-accused being lodged in a jail of Bihar also. However, the learned Trial Court is requested to expedite the trial, without granting any adjournment to either of the parties and to complete the same as soon as practicable bearing in mind that the right to speedy trial is a fundamental right guaranteed under Article 21 of the Constitution of India. 14. In terms of above, this bail application stands disposed of. Comparing Assistant Sd/- Robin Phukan JUDGE