Page No.# 1/7 GAHC010183022024 2025:GAU-AS:785 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2702/2024 ABDULLAH AL MAHMUD CHOUDHURY @ ABDULLAH CHOUDHURY @ BABLU S/O LATE MOINUL ISLAM CHOUDHURY, R/O VILL- EAST KANISHAIL, P.S.- KARIMGANJ, DIST- KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. S K TALUKDAR, MS. R. R. SAIKIA,MR. A B T HAQUE,MR. J M A CHOUDHURY Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 27.01.2025 Heard Mr. S.K. Talukdar, learned counsel for the accused. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State respondent. 2. This petition, under Section 483, BNSS, is preferred by accused, namely, Abdullah Al Mahmud Choudhury @ Abdullah Choudhury @ Bablu, who has been Page No.# 2/7 languishing in jail hazot in connection with Special (NDPS) Case No. 43/2023, pending before the Court of learned Sessions Judge, Karimganj, arising out of Karimganj P.S. No. 334/2023, under Sections 21(c)/25/29 of the NDPS Act, for grant of bail. 3. The aforementioned case has been registered on the basis of an FIR lodged by SI (P) Badru Zaman Ahmed of Karimganj P.S. on 05.05.2023. 4. The essence of allegation against the present accused is that acting on a tip off, on 05.05.2023, at about 5:20 a.m., the informant, along with his staff, intercepted one Alto car, bearing Registration No. AS-10-F-4531, driven by one Abdul Khayer Md. Siddique, and during search, they had recovered 48 Nos. of soap cases containing suspected Heroin, weighing 567 grams. According to the said driver, the consignment was meant for one Abdullah Choudhury @ Bablu. 5. Mr. Talukdar, learned counsel for the accused submits that the accused was arrested on 06.05.2023 and since then, he has been languishing in jail hazot, and that till date, no witness has been examined by the prosecution side and there is unlikelihood of completion of trial very soon and on such count, the right to speedy trial of the accused, as guaranteed by Article 21 of the Constitution of India, is violated. Mr. Talukdar further submits that though there is a requirement of satisfying the twin conditions under Section 37 of the NDPS Act, yet in view of the decision of Hon’ble Supreme Court, the statutory bar cannot override the Constitutional scheme i.e. the fundamental right as guaranteed to the accused under Article 21 of the Constitution of India. Referring 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 Page No.# 3/7 2023], Mr. Talukdar submits since Section 37 of the NDPS Act is stringent provision curtailing the provisions of bail and restricting judicial discretion and in that case, the investigation and trial ought to have been be concluded swiftly, and considering this aspect Hon’ble Supreme Court had granted bail to the accused of that case and the present accused is in better footing than the accused of the said case as the present accused was arrested only on the basis of CDR analysis and statement of co-accused and nothing was found from his conscious possession. Mr. Talukdar has also referred to a decision of a Coordinate Bench of this Court in Bail Appln. No. 3852/2024, where considering the length of detention, bail was granted to the accused. Under such circumstances, Mr. Talukdar has contended to allow the petition. 6. Per contra, Mr. Sarma, the learned Additional Public Prosecutor has vehemently opposed the petition. Mr. Sarma submits that no new ground is assigned by the accused for reconsideration of his petition after rejection of his earlier petitions by this Court vide order dated 12.02.2024, in Bail Appln. No. 4676/2023 and vide order dated 24.06.2024, in Bail Appln. No. 1587/2024, and that the issue raised by Mr. Talukdar, learned counsel for the accused has already been considered by this Court. Referring to a decision of a Co-ordinate Bench of this Court, in Bail Appln. No. 2438/2024, Mr. Sarma submits that the issue of long incarceration has been dealt with in the said case besides taking into account the decision in Mohd Muslim @ Hussain (supra), relied by Mr. Talukdar and thereafter, dismissed the bail application. Mr. Sarma also submits that the offences are serious in nature and from the materials placed on record, it cannot be said that the accused has been able to satisfy the twin requirements of Section 37 of the NDPS Act. Further, Mr. Sarma submits that there is no considerable delay in the trial and the accused was arrested on Page No.# 4/7 06.05.2023, and as per the status report received from the learned trial Court, charge was framed against the accused on 16.12.2023 and on 02.08.2024, two prosecution witnesses were present. But, on the adjournment being sought for by the counsel of one of the accused, those two witnesses could not be examined and as such, there is no lapse on the part of the prosecution in producing the witnesses, and that it is erroneous to assume that trial would not be completed soon, and therefore, it is contended to dismiss the petition. 7. 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 along with the status report. 8. The status report, received from the learned trial Court indicates that charge has already been framed against the accused person and the case is pending at the stage of evidence. Further, it appears that on 02.08.2024, two prosecution witnesses were present. But, on account of adjournment being sought for by the counsel of one of the accused, they could not be examined and the next date was fixed on 03.10.2024. 9. Thus, from the scanned copy of the record received from the learned trial Court, this Court is unable to derive satisfaction that the trial is being delayed on account of lapse of the prosecution side. 10. Indisputably, the quantity of contraband substances recovered from the possession of the co-accused is of commercial quantity and the said contraband substances were meant for the present accused. The prosecution side has relied upon the CDR analysis of the mobile phone of the present accused with that of the co-accused at the relevant point of time besides the statement of co- Page No.# 5/7 accused. It is fact that the contraband substances were not recovered from the physical possession of the present accused. But, even than the present accused is not relieved from the requirement of satisfying the twin condition of section 37 of the NDPS Act. But, this Court is unable to derive satisfaction from the materials placed on record and also from the submission of the learned counsel for the accused that the accused is not guilty of the offence and that he will not commit any offence while on bail. 11. In a catena of decisions of Hon’ble Supreme Court, it has been held that when commercial quantity of contraband substances are involved, the Court cannot grant bail without being satisfied about compliance of the twin conditions under Section 37 of the NDPS Act. Reference in this context can be made to a decision of Hon’ble Supreme Court 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.” 12. 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: “39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted Page No.# 6/7 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. ………………………………………………...” 13. There is no doubt that pre trial long incarceration affects the right to speedy trial of the accused as guaranteed by Article 21 of the Constitution of India. This aspect has duly been taken note of by Hon’ble Supreme Court in plethora of decisions, including the case of Mohd Muslim @ Hussain (supra), referred by Mr. Talukdar, learned counsel for the accused. But, before availing such benefit one has to establish that the delay is not attributable to him instead attributable to the prosecution. The burden is upon him. Mere contention is not enough. Rather, the record of the learned trial Court indicates that on 02.08.2024, two prosecution witnesses were present and said witnesses could not been examined on account of adjournment sought for by the counsel of one of the accused. 14. It is also to be noted here that in Mohd Muslim @ Hussain (supra), referred by Mr. Talukdar, bail was granted to the accused considering the fact that he was in jail hazot for more than 7 years and 4 months and he has already undergone half of the sentence which he would have to undergo in the event of conviction and also considering Section 436A of the CrPC. 15. In the case in hand, the accused has been behind the bar since 06.05.2023, and from the scanned copy of the record received from the learned Page No.# 7/7 trial Court, and also considering the submission of Mr. Sarma, learned Additional Public Prosecutor, this Court is unable to agree with the submission of Mr. Talukdar, learned counsel for the accused that there is unlikelihood of conclusion of trial within a short period and Mr. Sarma has rightly pointed this out in his argument. 16. In the given facts and circumstances, and also in view of the decisions of Hon’ble Supreme Court in the cases of Ajay Kumar Singh @ Pappu (supra) and Kashif (supra), 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. 17. However, the learned trial Court is requested to complete the trial as soon as practicable and if possible, to conduct day to day trial without granting adjournments to any of the parties. JUDGE Comparing Assistant