Page No.# 1/6 GAHC010176602024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2604/2024 KAMAL KUMAR S/O SRI LALLU RAM, R/O ALAMPUR, P.O.-BAGEHTA, P.S.-BABERO, DIST- BANDA, UTTAR PRADESH, PIN CODE 210121 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, NCB Advocate for the Petitioner : MR. Y S MANNAN, MS N DEKARAJA,MR. T HUSSAIN Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 22.01.2025 Heard Mr. Y.S. Mannan, learned counsel for the accused. Also heard Mr. S.C. Keyal, learned Standing counsel for the respondent, NCB. 2. This petition, under Section 483, BNSS, is preferred by accused, namely, Kamal Kumar, who has been languishing in jail hazot in connection with NDPS Case No. 49/2022, pending before the Court of learned Additional Sessions Page No.# 2/6 Judge No. 2, Kamrup(M), Guwahati, arising out of NCB Crime No. 25/2021, under Sections 8(c)/21(c)/29 of the NDPS Act, for grant of bail. 3. The essence of allegation against the present accused is that one Sakil Ansari, Junior Intelligence Officer, NCB, Guwahati on 04.09.2021, intercepted one Truck, bearing Registration No. UP-32-HN-9008, and found him with another person, namely, Imran and having conducted search in the said truck, he found codeine based cough syrup between the rice bags having brand name Phensedyl, contained in 64 numbers of white coloured plastic sacks and seized the same preparing seizure list in presence of witnesses and also arrested him and Imran and registered a case, being NCB Crime No. 25/2021, under Sections 8(c)/21(c)/29 of the NDPS Act. 4. Mr. Mannan, learned counsel for the accused submits that the accused was arrested on 07.09.2021 and thereafter, final complaint was lodged against the accused on 03.03.2022, before the Court of learned Additional Sessions Judge No. 2, Kamrup(M), Guwahati and thereafter, the learned trial Court had framed charge against the accused and examined as many as four witnesses, out of eleven witnesses cited in the charge-sheet. Mr. Mannan further submits that after examination of four witnesses, for last seven dates no witnesses had turned up and the last witness was examined on 16.02.2024. Mr. Mannan further submits that the accused has been languishing in jail hazot for last three years & four months, and that his right to speedy trial is violated here in this case and as such, he is entitled to bail on the ground of long incarceration in jail hazot. 5. Per contra, Mr. Keyal, learned Standing counsel for the respondent, NCB submits that the offences are serious in nature and that 18,989 bottles of codeine based cough syrup were recovered from the conscious possession of Page No.# 3/6 the accused, and that nothing has been produced before the Court to satisfy the requirement under Section 37 of the NDPS Act. Mr. Keyal also submits that the trial is going on and if the accused is enlarged on bail at this stage, it will be difficult to procure his attendance and there will be further delay in disposal of this case and therefore, it is contended to dismiss the petition. 6. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the scanned copy of the record received from the learned trial Court. 7. It is not in dispute that 18,989 bottles of codeine based Phensedyl cough syrup were recovered from the possession of the present accused and Imran while the same were being carried in the truck, bearing Registration No. UP-32- HN-9008, and the same was seized in present of independent witnesses. Further, it appears that after investigation, final complaint was lodged against the accused on 03.03.2022 and thereafter, charge was framed against the accused under Sections 21(c)/29 of the NDPS Act and thereafter, four witnesses, out of eleven witnesses cited in the charge-sheet, were examined so far. The last witness was examined on 16.02.2024 and since then, no witnesses, for the last seven dates, have turned up. 8. It is not in dispute that the quantity of contraband substance recovered from the possession of the accused is of commercial quantity and as such, there is requirement for satisfying the twin conditions of Section 37 of the NDPS Act that the accused is not guilty of the offence and that he will not commit any offence while on bail. 9. But, this Court is unable to derive any satisfaction from the submission of Page No.# 4/6 Mr. Mannan, learned counsel for the accused and also from the materials placed on record that the accused is not guilty of the offence and that he will not commit any offence while on bail. Though, Mr. Mannan submits that because of long incarceration, the right to speedy trial of the accused, as guaranteed by Article 21 of the Constitution of India, is violated and the statutory provision, under Section 37 of the NDPS Act cannot override the constitutional provision of Article 21 of the Constitution of India, yet his submission left this Court unimpressed. Mr. Mannan has also referred to a decision of Hon’ble Supreme Court in the case of Mohd Muslim @ Hussain Vs. State (NCT of Delhi), in Criminal Appeal No.(s) of 2023 [arising out of Special Leave Petition (Crl.) No. 915 of 2023] and also some decisions of a Coordinate Bench of this Court in Bail Appln. No. 3119/2024 and Bail Appln. No. 434/2024. 10. However, it is also well settled in the case of Union of India vs. Ajay Kumar Singh @ Pappu, in Criminal Appeal No. 952 of 2023 [arising out of SLP (CRL.) No. 2351 of 2023], wherein Hon’ble Supreme Court has held that: “In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.” 11. It is also to be mentioned here that in the case of Narcotics Control Bureau vs. Kashif, in Criminal Appeal No. 5544 of 2024 [arising out of Special Leave Petition (Crl.) No. 12120 of 2024], Hon’ble Supreme Court has held as under: Page No.# 5/6 “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. (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 Page No.# 6/6 the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” 12. It is a fact that there appears to be some delay in trial and on some dates, the prosecution side has failed to produce any witness. However, to the considered opinion of this Court, this delay is not at all sufficient to contend that the right to speedy trial of the accused is violated and the delay here in this case at best, can be termed as systemic delay as held in the case of Abdul Rehman Antulay and Ors. vs. R.S. Nayak and Anr., reported in (1992) 1 SCC 225. 13. Taking note of the aforesaid propositions of law and also considering the facts and circumstances of this case, this Court is of the view that this is not a fit case where the privilege of bail can be granted to the accused at this stage and accordingly, this bail application stands dismissed. 14. However, the learned trial Court is requested to expedite the trial and to conclude the same as soon as practicable, keeping in mind that right to speedy trial is a fundamental right as guaranteed by Article 21 of the Constitution of India. JUDGE Comparing Assistant