Page No.# 1/10 GAHC010174842024 2025:GAU-AS:4269 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2567/2024 DINBANDHU KUMAR S/O SRI LALA ROY R/O VILL- GIASPUR MAHAJI P.S. SALIMPUR DIST. PATNA, BIHAR. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR S RAHMAN, MS. S PHUKAN Advocate for the Respondent : PP, ASSAM, Page No.# 2/10 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 07.04.2025 Heard Mr. S. Rahman, learned counsel for the petitioner. Also head Mr. B. Sharma, 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/petitioner, who has been arrested in connection with NDPS Case No. 37/2023, arising out of Garchuk P.S. Case No. 357/2022, under Sections 20(c)/27 (A)/29 of NDPS Act, pending before the Court of learned Additional Sessions Judge No. 2, 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 petitioner, that the present accused/petitioner is innocent and nothing has been seized from his conscious possession. However, he got arrested in connection with this case on Page No.# 3/10 29.11.2022 and for last 2 (two) years, 4 (four) months and 8 (eight) days, he is in custody. The charge-sheet was filed on 04.03.2023, but till date, the prosecution could examine only 4 (four) numbers of witnesses out of 8 (eight) 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. He further submitted that the co-accused, namely, Manish Kumar, has already been granted bail by this Court vide order dated 01.04.2025, passed in Bail Appln. No. 485/2025, considering his period of long incarceration. Therefore, he submitted that considering the petitioner on the same footing, viz-a-viz the period of long incarceration, the petitioner may be enlarged on bail. 5. Mr. Rahman, learned counsel for the petitioner, further relied on the following decisions in support of his case: (i) Shariful Islam @ Sarif Vs. the State of West Bengal [Special Leave to Appeal (Crl.) No. 4173/2022] (ii) Anjan Nath. Vs. The State of Assam [Special Leave to Appeal (Crl.) No(s). 9860/2023] (iii) Chitta Biswas @ Subhas Vs. the State of West Bengal [Criminal Appeal No(s). 245/2020 (@ SLP (Crl.) No. 8823/20190] Page No.# 4/10 (iv) Nitish Adhikary @ Bapan Vs. the State of Bengal [Special Leave to Appeal (Crl.) No(s). 5769/2022] (v) Mohammad Salman Hanif Shaikh Vs. The State of Gujarat [Special Leave to Appeal (Crl.) No(s). 5530/2022] (vi) Amit Kumar Vs. Union of India [Bail Appln. No. 3805/2024, decided on 16.12.2024] 6. Mr. Sharma, learned Additional Public Prosecutor, submitted in this regard that during investigation, the I.O. collected sufficient incriminating materials against the present accused/petitioner. The charge-sheet of the case was filed on 04.03.2023 finding prima facie case against the present petitioner and the trial has already commenced and till date, the prosecution has already examined 4 (four) 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 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. More so, he submitted that the present accused/ petitioner belongs from the State of Bihar and there is every possibility of absconding if he is released on bail and therefore, he submitted that this is not at all a fit case to grant bail to the accused/petitioner only considering the length of detention of the present Page No.# 5/10 accused/petitioner. 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 petitioner that the accused is in custody for more than 2 (two) years, 4 (four) months & 8 (eight) days and till date, the prosecution could examine only 4 (four) numbers of witnesses out of 8 (eight) 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 petitioner that there is no probability of disposal of the case within a short or reasonable period as some of the vital witnesses are yet to be examined by the prosecution. 9. On the other hand, it is the case of the defence that the accused/petitioner is alleged to have committed the offence under the commercial quantity of the NDPS Act and hence, only on the ground of long incarceration, he cannot be enlarged on bail. 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 Page No.# 6/10 prosecution could examine only 4 (four) numbers of witnesses out of 8 (eight) 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, 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. 14. But, in the same time, it cannot be denied that the accused/petitioner is Page No.# 7/10 behind the bar for last 2 (two) years, 4 (four) months & 8 (eight) days from the date of his arrest and till date, the prosecution has been able to 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. 15. 15. 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.” 16. In the case of Citta Biswas @ Subash (supra) 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. 17. 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. 18. 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. Page No.# 8/10 19. The Apex Court in the case of Mohammed Salman (supra) also granted bail to the accused without expressing any views on the merits of the case and only taking into consideration the period of custody. 20. In the case of Karnail Singh Vs. The State of Odisha [Criminal Appeal No. 2027/2022, arising out of SLP(Crl) No. 9067/2022 (Decided on 22.11.2022)] also, the Apex Court also expressed the same view and granted bail to the accused considering the period of incarceration. 21. Same view has been expressed by the Apex Court in the case of Anjan Nath (supra). 22. 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/petitioner showing his involvement in the alleged offence. But it is also seen that in spite of filing of the Charge-Sheet in the year 2023, the prosecution could examine only 4 (four) witnesses out of 8 (eight) numbers of listed witnesses, though it a fact that the accused/petitioner is behind the bar for more than 2 (two) years, 4 (four) months & 8 (eight) days. 23. 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/petitioner for more than 2 (two) years, 4 (four) months & 8 (eight) Page No.# 9/10 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, I am inclined to grant bail to the present accused/petitioner. 24. 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 Additional Sessions Judge No. 2, Kamrup(M), Guwahati, the accused/petitioner, namely, Shri Dinbandhu Kumar, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Additional Sessions Judge No. 2, 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 his Aadhar Card and PAN Card before the learned Additional Sessions Judge No. 2, Kamrup(M), Guwahati; and Page No.# 10/10 (iv) that the petitioner shall not leave the jurisdiction of the learned Additional Sessions Judge No. 2, Kamrup(M), Guwahati, without prior permission. 25. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant