Page No.# 1/10 GAHC010162962024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2437/2024 RATAN DAS S/O GOURANGA DAS, R/O 75, SARKAR TILLA, VILL- LAXMIBIL, P.O. AND P.S.-BISHALGARH, DIST-WEST TRIPURA, TRIPURA-799102 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, NARCOTICS CONTROL BUREAU (NCB) Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,J SINGPHO Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 17.02.2025 1. Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned standing counsel, NCB. 2. This is an application under Section 483 of BNSS, 2023 by the Page No.# 2/10 petitioner namely, Ratan Das, who has been detained behind the bars since 27.09.2022 (for more 2 years 4 months) in connection with NDPS Case No.36/2023 corresponding to NCB Crime No.21/2022 under Section 20(b)(ii)(C) & 29 of the NDPS Act, 1985 pending in the Court of learned Additional Sessions Judge No. 5, Kamrup (M) at Guwahati. 3. The gist of accusation in this case is that, on 25.09.2022, one Shri Nilotpal Kakati, Intelligence Officer, Narcotics Control Bureau, Guwahati Zonal Unit, Guwahati received an information from a reliable source that one person namely Alindra Ray would be carrying huge quantity of ganja from Tripura to Bihar, which are concealed inside special made cavity above cabin of the container truck bearing registration No.CG 08 AH 9555. 4. On receipt of the aforesaid information, a team of NCB personnel was constituted. On 26.09.2022 at about 11.00 am, the above container truck was seen coming from the side of Jorabat, which was signaled to be stopped. It was found that the said truck was being driven by one Alindra Ray. On stopping of the said truck, the same was searched. During search of the truck, 517 kg of suspected ganja was recovered there from. 5. It is also pertinent to mention that during interrogation, the driver of the truck namely Alindra Ray disclosed that there were other persons associated with the transportation of illegal ganja and they were following the truck in a Maruti Ertiga vehicle bearing registration No. TR 01 BR 0249. 6. It is further stated in the complaint filed by the NCB that after getting information from Alindra Ray, the Maruti car was stopped, in which five persons were found sitting inside the car including the present petitioner, Page No.# 3/10 who was the driver of the said car. 7. Mr. M. Biswas, the learned counsel for the petitioner has submitted that there is no reasonable ground in this case to believe that the petitioner has committed offence under Section 20(b)(ii)(C)/29 of the NDPS Act, 1985 with which he has been charged with. He submits that only material which is relied upon by the prosecution side to implicate the petitioner are the statement recorded under Section 67 of the NDPS Act, 1985 as well as the call detail report (CDR) of the mobile conversation between the accused persons. 8. The learned counsel for the petitioner submits that the present petitioner was engaged, on hire basis, by one of the co-accused namely Rajesh Debnath to carry them from Tripura to Guwahati, in his car, at the rate of Rs. 15/- per kilometer. 9. Learned counsel for the petitioner submits that there were no materials on record to show that the petitioner was knowing about the plan of the other co-accused travelling to Guwahati by following the truck from which the seized contraband was recovered. The learned counsel for the petitioner has also submitted that nor anything was seized from the possession of the present petitioner, neither from the vehicle, which the present petitioner was driving. He further submits that even the call detail report (CDR) of the telephonic conversation amongst the accused person, which is relied upon by the prosecution side, shows that the petitioner had been contacted only once by co-accused Rajesh Debnath, over mobile phone. 10. Learned counsel for the petitioner submits that the petitioner does not Page No.# 4/10 have any criminal antecedents and the materials on record are not sufficient to come to a reasonable conclusion regarding his involvement in the offence alleged in this case. 11. Learned counsel for the petitioner has further submitted that the petitioner has been languishing behind the bars for more than 2 (two) years 4 (four) months. He further submits that though the charges were framed in this case on 18.11.2023, however, till date, out of total 11 (eleven) listed prosecution witnesses, only 7 (seven) have been examined and none of them have made any incriminating statement against the petitioner. 12. Under the above circumstances, learned counsel for the petitioner submits that the petitioner is not only entitled to get bail on the ground of prolonged incarceration, but also on the ground that the prosecution side has failed to show any reasonable incriminating materials against him, which would show his complicity in the offence alleged in this case. 13. In support of his submission, the learned counsel for the petitioner has relied upon following rulings. In all these cases, the accused person were charged of offenses relating to commercial quantity of contraband and they were granted bail mainly on the ground of prolonged incarceration: - i. Khurshid Ahamad @ Wasim Ahmad Vs the State of Bihar (SLP Criminal No. 16726/2023) (Incarceration for 1 year 10 months). ii. Kalpesh Gulab Bhai Khojaji Vs. the State of Gujarat (SLP Criminal No.2325/ 2023) (Incarceration for 1 year 5 months). iii. Jairam Vs. the State of Rajasthan (SLP Criminal No. Page No.# 5/10 2479/2024) (Incarceration for 1 year 9 months). iv. Shariful Islam alias Sharif Vs. the State of West Bengal (Special Leave to Appeal (Criminal) No. 4173/2022) (Incarceration for 1 year 6 months). v. Anjan Nath Vs. for the State of Assam Special Leave to Appeal (Criminal No. 9860/2023) vi. Chitta Biswas alias Subhash Vs. the State of West Bengal (SLP Criminal No. 8823/2019 (Incarceration for 1 year 6 months). vii. Nitish Adhikari alias Bapan Vs. State of West Bengal SLP Criminal No. 5769/2022 (Incarceration for 1 year 7 months). viii. And a few other similar rulings. 14. On the other hand, Mr. S. C. Keyal, learned standing counsel, NCB has vehemently opposed the prayer for grant of bail to the petitioner on the ground that the contraband seized in this case is of commercial quantity and the embargo of Section 37 of the NDPS Act, 1985 would be applicable to this case. He submits that the statement of the petitioner recorded under Section 67 of the NDPS Act, 1985 as well as call detail report (CDR) of the telephonic conversation of the petitioner implicates him in the offence charged in this case. 15. He submits that the petitioner was having constructive possession of the seized contraband, though, nothing was recovered from the vehicle which he was driving. 16. In support of his submission, Mr. S. C. Keyal, learned standing counsel, NCB has cited a ruling of the Apex Court in the case of “Rakesh Kumar Raghuvanshi Vs. State of Madhya Pradesh” (Criminal Appeal No. 1953/2014 decided on 16.01. 2025) Page No.# 6/10 17. I have considered the submissions made by learned council for both the sides and have gone through the materials available on record including the scanned copy of the case records of NDPS Case No. 36/2023 18. It appears from the materials on record that the petitioner is the driver of the car, which was intercepted while the same was following the vehicle from which the contraband was recovered 19. It is pertinent to note that nothing was recovered from the vehicle which was driven by the present petitioner. 20. Further, it also appears that the petitioner had only one telephonic conversation with one of the co-accused namely, Rajesh Debnath. 21. In view of the decision of the Apex Court in the case of “Tofan Singh Vs. State of Tamil Nadu” reported in “(2021)4 SCC 1” it is no longer res integra that the statement recorded under Section 67 of the NDPS Act, 1985 is not admissible in evidence in a case involving offence under NDPS Act 1985 22. The materials available on record do not appear to be sufficient to arrive at a reasonable inference that the petitioner knew what was being carried in the container truck bearing Registration No. CG 08 AH 9555. 23. Be that as it may, it is also pertinent to note that in this case out of 11 prosecution witnesses only 7 have been examined till date and the petitioner has been languishing behind the bars for more than 2 years 4 months and there appears to be no fault on the part of the petitioner for such slow progress of the trial, while he is languishing behind the bars. 24. The Supreme Court of India has observed in the case of “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online Page No.# 7/10 SC 352” 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”. 25. The Apex Court has observed in the case of “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” 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)(ii) of the NDPS Act.” 26. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” (Supra), 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.” 27. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation & Anr” reported in AIR 2022 SC 3386 are relevant, same is 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 Page No.# 8/10 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.” 28. The facts of the case cited by Mr. S.C. Keyal, learned standing counsel, NCB i.e., “Rakesh Kumar Bhagavanshi was a state of Madhya Pradesh” (Supra) are distinguishable from the facts of the instant case. In the case which has been cited, the appellant was found along with the other co-accused in a train along with the seized contraband, whereas in the instant case the seized contraband were recovered from a different vehicle and the petitioner was driving a different vehicle, which was only found following the vehicle from where the seized contraband was recovered. Moreover, in the said case the question of prolonged incarceration was not considered by the Apex Court. Every bail application Page No.# 9/10 has to be considered on the basis of the facts involved in that particular case. 29. This Court is of considered opinion that in view of the observation made by 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 petitioner, he is kept under detention for a long period, it would certainly infringe his fundamental rights guaranteed under Article 21 of the Constitution of India. Under such circumstances, his 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 he would be entitled to get bail on the ground of prolonged incarceration only. 30. In the instant case the petitioner has been detained behind the bars for more than 2 years 4 months and the trial has not yet culminated and only 7 prosecution witnesses have been examined. 31. 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, he is entitled to get bail on the ground of the infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. 32. In view of the above, the petitioner, namely, Ratan Das, 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 Page No.# 10/10 Sessions Judge No. 5, Kamrup (M) at Guwahati with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 36/2023, which is pending in the Court of learned Additional Sessions Judge No. 5, Kamrup (M) at 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. 33. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant