Page No.# 1/6 GAHC010152652025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2275/2025 SAHAV SINGH ALIAS SAHAB SINGH SON OF SHRI RAM R/O VILL- SHAHPUR CHAMARAN, P.O. REHTAUL, P.S. NAKASA DIST. SAMBHAL UTTAR PRADESH, PIN CODE- 244301. VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, DRI Advocate for the Petitioner : MR. N J DUTTA, B AHMED Advocate for the Respondent : SC, DRI, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 04.09.2025 1. Heard Mr. N. J. Dutta, the learned counsel for the petitioner. Also heard Ms. P. S. Chakraborty, learned counsel appears for the DRI. 2. This is an application under Section 483 of BNSS, 2023 by the Page No.# 2/6 petitioner namely, Sahav Singh Alias Sahab Singh, who has been detained behind the bars since 01.08.2021 (for more than 4 years) in connection with NDPS P. S. Case No 27/2022 registered under Section 20(b)(ii)(c)/22(c)/29 of NDPS Act, 1985 pending before the Court of learned Additional Sessions Judge No.5, Kamrup (M), Guwahati. 3. The gist of accusation in this case is that on 31.07.2025, an information was received by the officials of Directorate of Revenue Intelligence and Guwahati that huge quantity of Ganja is being transported in a Tata truck bearing Registration No. RJ14GB8671 from Agartala to Guwahati. 4. Accordingly, a team was constituted and the same truck was intercepted. 5. During search of the said aforementioned truck 269.75 kg of suspected Ganja kept in 33 packages were recovered from the vehicle of which the present petitioner was the driver. 6. The learned counsel for the petitioner has submitted that the petitioner was not served any notice under Section 50/50A of Code of Criminal Procedure, 1973 at the time of his arrest Hence, there has been violation of his fundamental rights under Article 21 of the Constitution of India. 7. He also submits that the petitioner has been languishing behind the bars since the date of arrest for last more than 4 years and till date only 6 out of 12 listed prosecution witnesses have been examined. He submits that at this pace there is unlikelihood of early culmination of the trial and, therefore, he submits that the fundamental rights guaranteed to the petitioner under Article 21 of the Constitution of India has been violated in this case due to his prolonged incarceration and on that ground he is entitled to get bailout in this case. Page No.# 3/6 8. On the other hand, the learned standing counsel for DRI has submitted that at the time of the arrest of the petitioner the arrest memo was prepared mentioning therein the grounds of arrest of the petitioner in detail and a copy of the same was served on the petitioner after obtaining his thumb impressions thereon. 9. She, therefore, submits that there is no violation of the fundamental rights no violation of the constitutional mandate as contained in Article 22(1) of the Constitution of India. 10. She also submits that already 6 witnesses have been examined in this case and only 6 are remaining and it would not take much time for examining the said witnesses and completion of the trial in this case. She also submits that the quantity of 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. 11. She, therefore, prays for rejecting the prayer for bail of the petitioner. 12. I have considered the submissions made by the learned counsel for both sides and I have gone through the scanned copy of the trial court records. 13. The Hon’ble 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 Hon'ble Apex Court in “Rabi Prakesh Vs. State of Orissa” reported in 2023 live law (SC) 533, wherein it has been observed by the Hon'ble Apex Court 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 Page No.# 4/6 statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 15. It appears on perusal of the rulings cited by learned counsel for the petitioner that in all the cases cited by the petitioner, though commercial quantity of contraband was involved and apparently the embargo of Section 37 would have been applicable in those cases, however, only because of the fact of 16. the prolonged incarceration of the petitioners, the Apex Court allowed the petitioners to go on bail. 17. In view of the observation made by the Apex Court, this Court is of the considered opinion that if, under the facts and circumstances of a case, this Court comes to the finding that there is an undue delay in the completion of the trial, and that the incarceration of the petitioner is long enough, he would be entitled to get bail on the ground of such prolonged incarceration, as in such a case of prolonged incarceration, the right to life and personal liberty guaranteed to the petitioner under Section Article 21 of the Constitution of India would outweigh the fetter imposed under Section 37 of the NDPS Act, 1985. 18. It is also pertinent to mention herein that the Hon'ble Supreme Court of India had granted bail to an accused facing charges for possession of a commercial quantity of contraband only on the ground of prolonged incarceration in “Shariful Islam @ Sarif Vs. State of West Bengal” (Order dated 04.08.2022 passed in SLP Criminal No. 4173/2022), wherein the accused was detained behind bars for one year and six months. 19. In “Nitesh Adhikari Vs. State of West Bengal“ (Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022), Hon'ble Apex Court granted bail to the accused facing accusation under Section 21(c) of the NDPS Act, 1985 on the ground of incarceration of one year seven months. 20. Similarly in “Md. Salman Hanif Shaikh Vs. State of Gujarat” Page No.# 5/6 (Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), the petitioner was granted bail by the Apex Court on the ground of prolonged incarceration of two years. 21. In “Chitta Biswas Alias Subha Vs. The State Of West Bengal“ (Order dated 07.02.2020 passed in SLP Criminal No. 8823/2019), the Apex Court granted bail to the petitioner, who was facing a trial for possessing a commercial quantity of contraband. 22. In the instant case also, the present petitioner has been detained behind the bars for more than 4 years and only 6 prosecution witnesses have been examined at this stage. It is unlikelihood that the trial would culminate soon and in view of the facts and circumstances of this case as well as considering the observations made by the Apex Court in the rulings cited hereinabove, wherein, it has dealt with the question of long incarceration of similarly situated petitioners who were before the Apex Court, this Court is of the considered opinion that in the instant case also, the facts and circumstances are such that the long incarceration of the present petitioner has resulted infringement of the fundamental right guaranteed to him under Article 21 of the Constitution of India and the said fundamental rights guaranteed to him has outweighed the embargo of Section 37 of the NDPS, Act 1985 and the petitioner is therefore entitled to get bail on the ground of prolonged incarceration only. 23. Accordingly, the petitioner is allowed to go on bail of Rs. 1,00,000/- (Rupees One 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 learned Additional Sessions Judge No.5, Kamrup (M), Guwahati with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS P.S. Case Page No.# 6/6 No 27/2022 , which is pending in the Court of learned Additional Sessions Judge No.5, Kamrup (M), Guwahati; 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; and vi. That the petitioner shall not commit any offence while on bail. 24. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant