Page No.# 1/4 GAHC010180132024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2631/2024 JAKIR HUSSAIN AND ANR S/O HARAW ALI, R/O VILL- ISLAMPUR JAMLAI, P.S.-NAGARBERA, DIST- KAMRUP, ASSAM 2: ROFIJUDDIN ALI S/O SOYFUL ISLAM R/O VILL- ISLAMPUR JAMLAI P.S.-NAGARBERA DIST- KAMRUP ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. R A CHOUDHURY, MR. H ISLAM,MR. R A MAZUMDER Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 12.02.2025 1. Heard Mr. H. R. A Choudhury, the learned senior counsel for the petitioner assisted by Mr. I. U Choudhury, learned counsel for the petitioner. Also heard Mr. B. Page No.# 2/4 Sharma, the learned Additional Public Prosecutor for the State. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner namely, Jakir Hussain and Rofijuddin Ali who are detained behind the bars since 12.02.2024 in connection with Special NDPS Case No. 30/2024, under Section 21(c) & 29 of NDPS Act, 1985. 3. The gist of accusations in this case is that on the basis of a FIR lodged by one Mr. Rikhab Borah, Sub-Inspector of Police on 11.02.2024 whereby it was alleged that the petitioners were found in possession of 270 grams of suspected heroin in black coloured bag which they were carrying in a car driven by them, Palashbari, P.S Case No. 52/2024 under Section 21(c)/29 of NDPS Act, 1985, was registered and on completion of the investigation charge-sheet was laid and trial is going on before the court of Learned Special Judge, NDPS, Kamrup (Amingaon). 4. The learned senior counsel for the petitioner has submitted that the petitioners were only using the car from which the suspected heroin was recovered in black coloured bag and they were not knowing what is kept inside the bag as they were carrying the bag as per direction of the owner of the vehicle. 5. It is also submitted by learned senior counsel for the petitioner that the present petitioners are not the owner of the vehicle and therefore as they were driving the car as per direction of the owner of the vehicle they may not regarded as having conscious possession of the contraband which was seized from the said car. 6. The learned senior counsel for the petitioner has also submitted that the trial is going at a very slow pace and the petitioners are languishing behind the bars for last 1(one) year and therefore, considering the entire aspect they may be allowed to go on bail. 7. On the other hand, Mr. B. Sharma, the learned Additional Public Prosecutor for the State, has submitted that the quantity of contraband recovered in this case is commercial quantity and therefore embargo of Section 37 of the NDPS Act is Page No.# 3/4 applicable to this case. He submits that there are sufficient incriminating materials against the present petitioner in the record and already 3(three) of the listed prosecution witnesses have been examined. 8. I have considered the submissions made by the learned senior counsel for the petitioners as well as the learned Additional Public Prosecutor for the State, and have gone through the scanned copy of the Case Record of the NDPS Case No. 30/2024. 9. The petitioners are detained behind the bars for the last 1(one) year and the trial is progressing. 10. Considering the nature of offences and as well as the fact that already 3(three) prosecution witnesses have been examined, this court is of the considered opinion that the incarceration of the present petitioner is not long enough so as to give them benefit of granting bail on the ground of prolonged incarceration. 11. As regards the plea of conscious possession is concerned it is found from record that when the search was made both the petitioner were found from the vehicle from which the recovery was made. Merely because of the fact that the vehicle does not belong to the petitioner, it cannot be presumed that the petitioner were not in conscious possession more so as nobody was found in the vehicle in which the seized contraband were recovered. 12. I find that there are sufficient material at this stage against the present petitioners on record and therefore embargo of Section 37 of the NDPS Act is applicable to this case. 13. Hence the prayer for bail is rejected. 14. It is hereby made clear that the observation made hereinbefore is only for the purpose of consideration of the instant bail application and this shall have no bearing on the Trial Court during the trial. The Trial Court may have arrive at it own Page No.# 4/4 conclusion basing on the evidence adduced before it during the trial. 15. With above observation this bail application is disposed of. JUDGE Comparing Assistant