Page No.# 1/11 GAHC010155282024 2025:GAU-AS:4280 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2281/2024 RANJIT SINGH S/O LATE JOGENDRA NATH SINGH, R/O 223/1, SATIN SEN NAGAR, ISI, BARANAGAR (M), P.O.-BARANAGAR, P.S.-BARANAGAR, DIST- NORTH 24 PARGANAS, WEST BENGAL VERSUS THE UNION OF INDIA REPRESENTED BY THE NARCOTICS CONTROL BUREAU (NCB), GUWAHATI Advocate for the Petitioner : MR. U K BARMAN, MS B KOUSHIK,MR. R KONWAR,MR. M MALAKAR,MR H ALI Advocate for the Respondent : SC, NCB, Page No.# 2/11 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 07.04.2025 Heard Mr. H. Ali, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing Counsel, NCB for the respondent/Union of India. 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 28/2023, arising out of NCB Crime No. 01/2023, under Sections 21(c)/29 of the NDPS Act, pending before the Court of learned Special Judge, Kamrup, Amingaon. 3. It is submitted by Mr. Ali, learned counsel for the petitioner, that the present accused/petitioner is innocent and he is no way connected in the alleged offence. Nothing has been seized from the conscious possession of the present accused/petitioner. He has been in custody for last 2 (two) years, 3 (three) months & 3 (three) days. However, he was allowed to remain on interim bail for 20 days after the death of his mother and thereafter he again surrendered before the Court and since then, he is in custody. He further submitted that there are 8 (eight) numbers of prosecution witnesses cited in the charge-sheet and out of which, only 4 (four) numbers of witnesses are being examined till date. He, accordingly, 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 and therefore he submitted that considering the period of long incarceration, the petitioner may be enlarged on bail. He is a permanent Page No.# 3/11 resident of his addressed locality and will regularly appear before the Court to contest the case as and when the date is fixed by the Court. 4. Mr. Ali, learned counsel for the petitioner, also relied on the following decisions in support of his case: (i) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109] (ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order dated 01.08.2022 in SLP Crl. No. 4173/2022] (iii) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022 SCC OnLine SC 2068] (iv) Chitta Biswas @ Subhas Vs. The State of West Bengal [SLP(Crl.) No. 8823, decided on 07.02.2022] (v) Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar [(1980) 1 SCC 81] 5. Mr. Ali further raised the issue that there is a violation of Article 22(2) of the Constitution of India and as per which, the accused person should be produced before the Magistrate within 24 hours of his arrest. But, here in the instant case, from the F.I.R. and the Forwarding Report, it is seen that the truck was intercepted on 02.01.2023, at about 2.00 a.m., and thereafter, the truck, along with the present accused persons, were brought to 6 Mile Guwahati before NCB Office and seizure procedure was also completed on 02.01.2023 at about 10 hours, but the accused was admittedly produced before the Court only Page No.# 4/11 on 04.01.2023, i.e. after about 48 hours of his arrest, which is in complete violation of Article 22(2) of the Constitution of India. He further submitted that from the objection filed by the NCB, it is also confirmed that the accused/petitioner was apprehended and detained since 02.01.2023 and produced before the Court only on 04.01.2023. 6. To describe the meaning of word ‘arrest’, Mr. Ali, learned counsel for the petitioner, relied on a decision of Hon’ble Supreme Court passed in the case of Directorate of Enforcement Vs. Deepak Mahajan & Anr., reported in AIR 1994 SC 1775, and basically emphasized on paragraph No. 48 of the judgment, which reads as under: 48. The word 'arrest' is derived from the French word 'Arreter' meaning "to stop or stay" and signifies a restraint of the person. Lexicologically, the meaning of the word 'arrest' is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. Ratnavel Pandian, J. as he then was being the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of T.N.17 had an occasion to go into the gamut of the meaning of the word 'arrest' with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury's Laws of England, A Dictionary of Law by L.B. Curzon, Black's Law Dictionary and Words and Phrases. On the basis of the meaning given in those text book sand lexicons, it has been held that “the word 'arrest' when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested." 7. In this context, he also relied on another decision of Hon’ble Orissa High Court passed in CRLMC NO. 3703 of 202 (Sk. Hussain & Ors. Vs. State of Orissa). Page No.# 5/11 8. Accordingly, Mr. Ali submitted that the violation of Article 22(2) of the Constitution of India may be a good ground for consideration of bail for the present accused/petitioner. 9. In this context, Mr. Keyal, learned Standing Counsel for the respondent/NCB, submitted that the present accused/petitioner was though apprehended on 02.01.2023, but it took some time for preparation of search and seizure and thereafter only, the prayer for arrest was made on 03.01.2023 and within 24 hours, the petitioner was produced before the learned Court below on 04.01.2023 complying with the statutory provision and thus, there is no violation of Article 22(2) of the Constitution of India. He further submitted that in their written objection, it is stated categorically as to how the procedure was completed and what was the time taken at the time of completion of the procedure and accordingly, the arrest was made on 03.01.2023 at about 5.00 p.m. and on 04.01.2023, the petitioner was produced before the Court for further formalities and also for medical examination. 10. Mr. Keyal relied on a decision of the Hon’ble Apex Court in the case of Central Bureau of Investigation Vs. Kapil Wadhawan & Anr., reported vide (2024) 3 SCC 734, and emphasized on paragraph No. 15 of the said judgment, where it has been expressed the view that indefeasible right of the default bail under Section 167(2) Cr.P.C. can only be claimed before filing of the charge-sheet. 11. Mr. Keyal further relied on a decision of Hon’ble Supreme Court passed in Page No.# 6/11 Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. [2005 0 Supreme(SC) 104], wherein it is held that “if a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be question as being violative of Article 21 since the same is authorized by law.” 12. Mr. Keyal further submitted that while dealing with a case of NDPS Act, the object and purpose of the Act has to be considered and if such kind of offender is allowed to go on bail, the very purpose and object of the Act itself will be frustrated. In that context, he also relied on a decision of Hon’ble Supreme Court passed in the case of Narcotics Control Bureau Vs. Kashif, reported in 2024 0 Supreme(SC) 1264, and emphasized on paragraph No. 39 of the judgment, which reads 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 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. Page No.# 7/11 (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.” 13. Accordingly, Mr. Keyal 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 is 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 bail. But, from the materials available in the Case Record and Case Diary, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. He further submitted that the present accused/petitioner is a habitual offender and there are sufficient incriminating materials against him. Thus, he raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioner on bail at this stage. 14. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the judgments relied by the learned counsels for both sides. 15. From the scanned copy of the case record and the other annexures filed along with the petition, it is seen that though the truck was intercepted on Page No.# 8/11 02.01.2023, along with the present petitioner, but for completion of the other formalities it took several hours and after completion of all the formalities, the accused was arrested on 03.01.2023 and forwarded for judicial custody on 04.01.2023. Thus, it is seen that there is no such violation of Article 22(2) of the Constitution of India. Admittedly, the case is of commercial quantity, the Investigating Officer took some time for completion of the other formalities. 16. It is the admitted fact there are some incriminating materials 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 4 (four) witnesses out of 8 (eight) numbers of listed witnesses, though it is a fact that the accused/petitioner is behind the bar for last 2 (two) years, 3 (three) months & 3 (three) days. 17. 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. 18. 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— Page No.# 9/11 (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.” 19. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if there is no reasonable ground for believing that accused is not guilty of such offence and that he is 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/petitioner is not guilty of such offence or he is not likely to commit any offence while on bail. 20. But, in the same time, as stated above, it cannot be denied that the accused/petitioner is behind the bar for more than 2 (two) years, 3 (three) months & 3 (three) days from the date of his arrest and till then, the prosecution has been able to examine only and till date, the prosecution could examine only 4 (four) witnesses out of 8 (eight) 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. 21. In the case of Rabi Prakash (supra), as relied by the learned counsel for the petitioner, 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.” 22. In the case of Chitta Biswas @ Subash (supra) also, the bail was Page No.# 10/11 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. 23. Again, in the case of Nitish Adhikary @ Bapan (supra), 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. 24. Further, in the case of Shariful Islam @ Sharif (supra) also, the Apex Court had considered the period of incarceration, i.e. 1 year 6 months, and the bail was granted. 25. So, considering all above aspects of the case and also considering the observations made by the 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/petitioner for more than 2 (two) years, 3 (three) months & 3 (three) days may be considered as a ground for bail with the conditional liberty considering the fundamental right guaranteed under Article 21 of the Constitution and, therefore, without going into the merit of the case, I am inclined to grant bail to the present accused/petitioner. 26. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Page No.# 11/11 Special Judge, Kamrup at Amingaon, the accused/petitioner, namely, Ranjit Singh, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Special Judge, Kamrup at Amingaon, 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 his Aadhar Card and PAN Card before the learned Special Judge, Kamrup at Amingaon; and (iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Kamrup at Amingaon, without prior permission. 27. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant