Page No.# 1/5 GAHC010176332024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2603/2024 SMTI NAINAH DEVI W/O LATE HARINDER PASWAN, R/O VILL- BARIATPUR, P.S.-KARIYANI, DIST- SHEOHARPUR, BIHAR VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR S RAHMAN, MS. S PHUKAN,MR S KHOUND Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 28.07.2025 1. Heard Mr. S. Rahman, the learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor. 2. This application under Section 483 of the BNSS, 2023 has been Page No.# 2/5 filed by the petitioner, namely, Smti Nainah Devi, who has been detained behind the bars since 21.07.2022 (for more than 3 years) in connection with NDPS Case No. 329/2022 pending before the court of learned Additional District and Sessions Judge No.5, Kamrup (Metro), Guwahati corresponding to GRPS Case No. 102/2022 under Section 17(C)/29 of NDPS Act (G.R. No. 6135/2022). 3. The gist of accusation in this case is that on 21.07.2022, one Shyamanada G. Momin police has lodged an FIR before the Office in-charge of GRPS, Guwahati stating, inter alia, that during routine checking duty at Guwahati Railway Platform No.1 when the checking was made in the Rajdhani Express train, four persons including the present petitioners were found possessing commercial quantity of suspected opium. 4. Learned counsel for the petitioner has submitted that the petitioner has been languishing behind the bars since more than three years and only two out of six listed prosecution witnesses have been examined till date. He further submits that there is unlikelihood of culmination of the trial at the earliest and for such prolonged incarceration the fundamental rights of the petitioner guaranteed to her under Article 21 of the Constitution of India are infringed and therefore on that ground he is entitled to get bail. He further submits that in the meanwhile, two of the accused persons have been granted bail by a co-ordinate Bench of this Court on the ground of prolonged incarceration. 5. On the other hand, learned Additional Public Prosecutor has submitted that the present petitioner does not stand on the same footing like that of the accused persons who have already been released on bail. He submits that the quantity of contraband seized from the possession of the Page No.# 3/5 accused persons who are already released on bail was of intermediate quantity whereas from the present petitioner 6 kg of opium was recovered which is of commercial quantity. Learned Additional Public Prosecutor has also submitted that since commercial quantity of contraband was recovered from the possession of the present petitioner, the embargo of Section 37 of the NDPS Act is applicable in this Case. 6. I have considered the submissions made by learned counsel for both sides and have gone through the scanned copy of the records of NDPS Case No. 329/2022 which was requitioned in connection with this case. 7. On perusal of the materials on record it appears that the petitioner has been languishing behind the bars since last more than three years and the fact is that she is also a lady. It also appears that till date only two, out of six prosecution witnesses have been examined and as such there is unlikelihood of early completion of the trial. The Apex Court in several of its Ruling has observed that prolonged incarceration overrides the embargo of Section 37 of the NDPS Act, 1985. 8. Thus, if the Court comes to the finding that the incarceration of the petitioner is long enough and the petitioner is not at fault in delay caused in trial, such long incarceration would infringed the fundamental rights guaranteed to her under Article 21 of the Constitution of India and under such circumstances, as observed by the Apex Court the fundamental rights guaranteed under Article 21 of the Constitution of India would outway the fetters imposed by Section 37 of the NDPS Act, 1985. 9. As such, considering the prolonged incarceration of the above named petitioner, this Court is of the opinion that the petitioner is entitled to Page No.# 4/5 get bail only on the ground of violation of her fundamental right guaranteed under Article 21 of the Constitution of India. 10. For the aforesaid reason, the above named petitioner is allowed to go on bail of Rs.2,00,000/- with two sureties of like amount to the satisfaction of learned Additional District and Sessions Judge No.5, Kamrup (Metro), Guwahati with following conditions: (i) That the petitioner shall cooperate in the trial of NDPS Case No. 329/2022, which is pending in the court of Additional District and Sessions Judge No.5, Kamrup (Metro), 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. Page No.# 5/5 10. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant