Page No.# 1/8 GAHC010166562024 2025:GAU-AS:1246 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2478/2024 RANG BENJAMIN S/O TALU, R/O VILL- MARAM CENTRE, P.S.-MOA, DIST- SENAPATI, MANIPUR VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. A AHMED, MR A AHMED,U U KHAN,MR. M A CHOUDHURY Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 06.02.2025 1. Heard Mr. M.A. Choudhury, the learned counsel for the petitioner. Also heard Mr. R.J. Baruah, the learned Additional Public Prosecutor, Assam. 2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita(BNSS), 2023 has been filed by the petitioner, namely, Rang Benjamin, Page No.# 2/8 who has been detained behind the bars since 18.02.2023(for 1 year 11 months 20 days), in connection with NDPS Case No. 27/2023, arising out of Rangia P.S. Case No. 120/2023 under Section 21(c) of NDPS Act, 1985. 3. The gist of accusation in this case is that on 17.02.2023, one Samarjyoti Deka, SI of Rangia Police Station had lodged an FIR before the Officer-In-Charge of Rangia Police Station, inter alia, alleging that on 17.02.2023, one Sunil Kumar, Inspector of Police, of Delhi police gave information regarding transportation of suspected heroin from Manipur towards Delhi via Rangia in a white colured Bolero vehicle and accordingly, a Naka Checking was organised at Septi near Riya Motor Works at Rangia. At about 5:00 PM on that day, the police team intercepted the said Bolero vehicle and the present petitioner was apprehended therefrom. During search of the said Bolero vehicle, the police team recovered 67 numbers of plastic pouches containing suspected heroin. Later on, it was found that the seized heroin weighed about 903 gms. On receipt of the said FIR, Rangia P.S. Case No. 120/2023 was registered under Section 21(c) of NDPS Act and, 1985 and investigation was initiated. Ultimately, on completion of the investigation, charge sheet was laid on 31.05.2023 against the present petitioner under Section 21(c) of the NDPS Act, 1985. 4. The learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars since the date of his arrest, i.e. on 18.02.2023 and has already undergone 1 year 11 months 20 days behind the bars. However, he submits that till date, only four out of fourteen listed witnesses have been examined. He further submits that considering the phase of the trial is going on, it is unlikely to culminate soon and therefore, the petitioner is entitled to get bail on the ground of prolonged incarceration. Page No.# 3/8 5. The learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” wherein it has been observed by the 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 statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 6. The learned counsel for the petitioner has also relied on ruling of the Apex Court in the case of “Zakirul Islam @Md. Zakirul Islam @ Zakir Vs. State of Assam” Special Leave to Appeal (Crl.) No. 3632/2024 dated 15.07.2024 and in the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” Special Leave to Appeal (Crl.) No. 4648/2024 dated 28.05.2024, wherein the Apex Court granted bail to the petitioner in offence concerning commercial quantity of Narcotic Drugs and Psychotropic Substances on the ground of prolonged incarceration for more than 1 year 06 months. 7. On the other hand, the learned Additional Public Prosecutor, while vehemently opposing the prayer for bail of the petitioner has submitted that the four prosecution witnesses, who have already been examined have implicated the present petitioner in the alleged offence. He 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 is applicable. He further submits that though the petitioner has been detained behind the bars since 1 year 11 months and 20 days, however, for granting him the benefit of prolonged incarceration, the period of detention which he has undergone after the framing of charges against him should only be considered. He submits that the charges framed against the present petitioner on 08.08.2023 and if the period of detention is Page No.# 4/8 completed from the said date, it would not be more than 1 year 6 months. Therefore, he opposes the grant of bail to the present petitioner. 8. I have considered the submissions made by the learned counsel for both the sides and have perused the materials available on record, including the scanned copy of the Special NDPS Case No. 27/2023, which was requisitioned by this Court in connection with this case. 9. The 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”. 10. The Apex Court in “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” has observed 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.” 11. 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.” Page No.# 5/8 12. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil” 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 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 Page No.# 6/8 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.” 13. Though the learned Additional Public Prosecutor has submitted that the computation for period of detention to grant the benefit of prolonged incarceration may be only from the date of framing of charges against the present petitioner, however, this Court is of considered opinion that when an accused is detained behind the bars in connection with an offence and later on, he has to face the trial in respect of the said offence, his entire continued period of detention shall have to be considered for taking into consideration the fact as to whether the said accused is incarcerated for a long period so as to grant him the benefit of bail or not. 14. This Court is of considered opinion that for whatsoever reasons if inordinate delay is caused and if it is without any fault on the part of the petitioner, and he has been kept under detention for a long period, it would certainly infringe his Fundamental Rights guaranteed under Article 21 of the Constitution of India. 15. 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. 16. In the instant case, the petitioner has been detained behind the bars for Page No.# 7/8 last more than 1 year 11 months and only four out of total fourteen listed prosecution witnesses have been examined and at phase, it is unlikely that the trial would culminate soon. 17. Thus, in view of the facts and circumstances of this case and in view of the observations made by the Apex Court in rulings cited hereinabove, this Court is of considered opinion that in the instant case also, the facts and circumstances are such that the long incarceration of the petitioner has outweighed the embargo of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and thus, he is entitled to get bail on the ground of infringement of his fundamental right under Article 21 of the Constitution of India. 18. In view of the above, the petitioner, namely, Rang Benjamin, 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 the learned Special Judge, Rangia, Kamrup, Assam with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 27/2023, which is pending in the Court of learned Special Judge, Rangia, Kamrup, Assam; 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; Page No.# 8/8 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. 19. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant