Page No.# 1/9 GAHC010154432024 2025:GAU-AS:5131 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2291/2024 SATISH KUMAR SINGH AND 2 ORS. S/O NAND KISHOR SING, R/O BHIKANPUR GUMTI NO. 2, G.C. BANERJEE ROAD, P.S.-JAGDISHPUR, DIST- BHAGALPUR, BIHAR 2: GAURAV KUMAR S/O DILIP PRASAD SINGH R/O A.T. BHAWANIPUR BOCHA P.O.-DHANKAR P.S.-SANOKHANHAT DIST- BHAGALPUR BIHAR 3: SURAJ KUMAR S/O SANJOY SAH R/O BIRNOD P.S.-GORADIH DIST- BHAGALPUR ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR S RAHMAN, MS. S PHUKAN,MR S KHOUND Advocate for the Respondent : PP, ASSAM, Page No.# 2/9 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 28.04.2025 Heard Mr. S. Rahman, learned counsel for the petitioners. Also head Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent. 2. This is an application under Section 483 of BNSS praying for grant of bail to the accused/petitioners, who have been arrested in connection with NDPS Case No. 17/2023, arising out of GRPS Case No. 142/2022, corresponding to G.R. No. 8345/2022, under Section 20(b)(ii)(c)/29 of NDPS Act, pending before the Court of learned Additional Sessions Judge (FTC) No. 3, Kamrup(M), Guwahati. 3. Scanned copy of the case record has already been received. Perused the same. Heard both sides. 4. It is submitted by Mr. Rahman, learned counsel for the petitioners, that the present accused/petitioners are innocent and nothing has been seized from their conscious possession. However, they got arrested in connection with this case Page No.# 3/9 on 10.10.2022 and for last 2 (two) years, 6 (six) months & 18 (eighteen) days, they are in custody. The charge-sheet was filed on 30.12.2022, but till date, the prosecution could examine only 3 (three) numbers of witnesses out of 7 (seven) numbers of listed witnesses and hence, he submitted that there is no probability of completion of trial within near future as lots of witnesses are yet to be examined by the prosecution. Therefore, he submitted that considering the period of long incarceration, the petitioners may be enlarged on bail. 5. Mr. Rahman, learned counsel for the petitioners, further relied on the following decisions in support of his case: (i) Mohd Muslim @ Hussain Vs. State (NCT of Delhi) [Special Leave Petition (Crl.) No(S). 915 of 2023] (ii) Hussain & Anr. Vs. Union of India [AIR 2017 SC 1362] 6. Mr. Lahkar, learned Additional Public Prosecutor, submitted in this regard that during investigation, the I.O. collected sufficient incriminating materials against the present accused/petitioners. The charge-sheet of the case was filed on 30.12.2022 finding prima facie case against the present petitioners and the charge was also framed on 04.03.2023 and the trial has already commenced and till date, the prosecution has already examined 3 (three) numbers of witnesses. He further submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused are not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on Page No.# 4/9 bail. But, from the materials available in the Case Record and Case Diary, it cannot be said that the present petitioners are innocent, they have not committed such offence nor there is any probability of committing similar kind of offence if they are released on bail. More so, he submitted that the present accused/petitioners belong from the State of Bihar and there is every possibility of absconding if they are released on bail and therefore, he submitted that this is not at all a fit case to grant bail to the accused/petitioners only considering the length of detention of the present accused/petitioners. 7. After hearing the submissions made by the learned counsels for both sides, I have perused the scanned copy of the case record and the annexures filed along with the petition. 8. It is the case of the petitioners that they are in custody for more than 2 (two) years, 6 (six) months & 18 (eighteen) days and till date, the prosecution could examine only 3 (three) numbers of witnesses out of 7 (seven) numbers of listed witnesses and hence, considering the period of incarceration, the prayer for bail may be considered. Further it is the case of the petitioners that there is no probability of disposal of the case within a short or reasonable period as lots of witnesses are yet to be examined by the prosecution. 9. On the other hand, it is the case of the defence that the accused/petitioners are alleged to have committed the offence under the commercial quantity of the NDPS Act and hence, only on the ground of long incarceration, they cannot be enlarged on bail. Page No.# 5/9 10. It is the admitted fact there are some incriminating materials in the Case Diary which reveals from the statement made by the witnesses under Section 161 Cr.P.C. and apart from that, some other materials are also been collected by the I.O. during the investigation of this case and on the basis of which, the charge-sheet has been filed. It is also an admitted fact that the charge-sheet was filed within the statutory period and accordingly the charges were framed by the learned Trial Court below. However, it is a fact that till date, the prosecution could examine only 3 (three) numbers of witnesses out of 7 (seven) numbers of listed witnesses. But it also cannot be denied that the efforts have been made by the learned Special Judge to procure the attendance of the witnesses. 11. Further, it is also an admitted position that the case is of commercial quantity and hence, the rigor of Section 37 NDPS Act will follow. 12. For ready reference, Section 37 NDPS Act is extracted hereinbelow: “37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (b) No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.” 13. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, Page No.# 6/9 if there is no reasonable ground for believing that accused are not guilty of such offence and that they are not likely to commit any offence while on bail. But, from the materials available in the case record, there cannot be any reasons to believe that the accused/petitioners are not guilty of such offence or they are not likely to commit any offence while on bail. 14. But, in the same time, it cannot be denied that the accused/petitioners are behind the bar for last 2 (two) years, 6 (six) months & 18 (eighteen) days from the date of their arrest and till date, the prosecution has been able to examine only 3 (three) witnesses out of 7 (seven) numbers of listed witnesses and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial. 15. In the case of Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109], the Apex Court has granted bail to the accused with a view 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)9ii) of the NDPS Act.” 16. In the case of Chitta Biswas @ Subhas Vs. the State of West Bengal [Criminal Appeal No(s). 245/2020 (@ SLP (Crl.) No. 8823/20190] also, the bail was granted by the Apex Court considering the long period of incarceration and also considering the fact that out of 10 (ten) numbers of witnesses, only 4 (four) witnesses were examined by the prosecution. Page No.# 7/9 17. Again, in the case of Nitish Adhikary @ Bapan Vs. the State of Bengal [Special Leave to Appeal (Crl.) No(s). 5769/2022], considering the period of detention of 1 year 7 months, the bail was granted considering that the prosecution could examine only one witness and also considering that the case is at the preliminary stage of trial. 18. Further, in the case of Shariful Islam @ Sarif Vs. the State of West Bengal [Special Leave to Appeal (Crl.) No. 4173/2022] also, the Apex Court had considered the period of incarceration, i.e. 1 year 6 months, and the bail was granted. 19. In the instant case, as stated above, there are some materials available in the Case Diary and on the basis of which, the Investigating Officer has filed the charge-sheet against the present accused/petitioners showing their involvement in the alleged offence. But it is also seen that in spite of filing of the charge- sheet in the year 2022, the prosecution could examine only 3 (three) witnesses out of 7 (seven) numbers of listed witnesses, though it is a fact that the accused/petitioners are behind the bar for more than 2 (two) years, 6 (six) months & 18 (eighteen) days. 20. In view of above and also considering the observations made by the Hon’ble Apex Court in the various judgments, as discussed above, and further considering the other facts and circumstances of this case, this Court is of the opinion that the period of long incarceration undergone by the accused/ petitioners for more than 2 (two) years, 6 (six) months & 18 (eighteen) days may be considered as a ground for bail with the conditional liberty considering Page No.# 8/9 the fundamental right guaranteed under Article 21 of the Constitution and, therefore, I am inclined to grant bail to the present accused/petitioners. 21. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only each with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Additional Sessions Judge (FTC) No. 3, Kamrup(M), Guwahati, the accused/ petitioners, namely, (i) Satish Kumar Singh, (ii) Gourav Kumar & (iii) Suraj Kumar, be enlarged on bail, subject to the following conditions: (i) that the petitioners shall appear before the Court of learned Additional Sessions Judge (FTC) No. 3, Kamrup(M), Guwahati, on each and every date to be fixed by the Court; (ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) that the petitioner shall submit their Aadhar Card and PAN Card before the learned Additional Sessions Judge (FTC) No. 3, Kamrup(M), Guwahati; and (iv) that the petitioner shall not leave the jurisdiction of the learned Additional Sessions Judge (FTC) No. 3, Kamrup(M), Guwahati, Page No.# 9/9 without prior permission. 22. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant