Page No.# 1/8 GAHC010181992024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2673/2024 ANOWAR HUSSAIN AND ANR S/O LATE AJGAR ALI, R/O KOLGACHIA, P.S.-KOLGACHIA, DIST- BARPETA, ASSAM 2: GULZAR HUSSAIN S/O HIKMAT ALI R/O KOLGACHIA P.S.-KOLGACHIA DIST- BARPETA ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. S C BISWAS, MS. J GHOSH,MR. P S BISWAS,MS. K L R YANTHAN,MR A IKBAL Advocate for the Respondent : PP, ASSAM, Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 10.02.2025 1) Heard Mr. S. C. Biswas, learned counsel for the petitioners. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor for the State respondent. 2) This application under Section 483 of the BNSS has been filed by the petitioners, namely (1) Anowar Hussain, and (2) Gulzar Hussain, who are detained behind the bars since 22.01.2023 (for more than 2 years 18 days) in connection with Special NDPS Case No. 07/2023 corresponding to Bazaricherra Case No. 17/2023 under Sections 21(c)/22(b)/29 of the NDPS Act, 1985. 3) The gist of accusation in this case is that on 21.01.2023 one Niranjan Das, SI of police had lodged an FIR before the Officer-In-Charge of Bazaricherra Police Station, inter-alia, alleging that on 21.01.2023 at around 4.10 pm during regular naka checking duty at naka checkpoint of Churaibari watch post at National Highway No. 8, one Tata truck bearing Registration No. AS 01 HC 6669 coming from Guwahati towards Tripura was intercepted. 4) The petitioner No.1 namely, Anowar Hussain was driving the truck and the petitioner No.2 Gulzar Hussain was there in the truck as helper. However, during thorough checking of the said truck, 20 numbers of cartons containing cough syrup (codeine phosphate) were found therein. 5) It is further stated in the FIR that total 238.8 kgs of codeine phosphate cough syrup was recovered from the said vehicle. 6) On receipt of this said FIR, Bazaricherra Case No. 17/2023 was Page No.# 3/8 registered and investigation was initiated. 7) Ultimately, on completion of the investigation, charge sheet was laid against the present petitioners. 8) The learned counsel for the petitioners has submitted that the petitioner No. 1 is not the original driver of the truck and he was engaged by the employer when the original driver was found absent. He submits that the petitioners are unaware of what was loaded in the truck from where the contraband was recovered. 9) The learned counsel for the petitioners has further submitted that though the charges in this case have been framed against the present petitioner on 09.08.2023, however till date, out of 9 listed prosecution witnesses, only 1 has been examined. 10) The learned counsel for the petitioners has submitted that at this stage, it is unlikely that the trial would culminate soon. 11) He further submits that the petitioners are languishing behind the bars for more than 2 years 2 months without any progress in the trial and on that ground, they are entitled to get bail. 12) The learned counsel for the petitioners have also cited the ruling of Supreme Court of India in “Rabi Prakash Vs. The State of Odisha” [Order dated 13.07.2023 passed in Special Leave to Appeal (Crl) No(s). 4169/2023] wherein the Hon’ble Supreme Court had observed 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)(ii) of the NDPS Act, 1985. 13) The learned counsel for the petitioners has also submitted that in view of Page No.# 4/8 observations made by the Hon’ble Apex Court in “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in 2023 SCC Online SC 352, the Court can look into the materials on record whenever the bail application is made to come to arrive at a primary satisfaction as to whether there are reasonable grounds for believing that the accused is not guilty of such offence and as to whether he is not likely to commit any such offence while on bail. 14) On the other hand, Mr. R. J. Baruah, the learned Additional Public Prosecutor has vehemently opposed the grant bail to the present petitioners at this stage. 15) He submits that quantity of contraband recovered in this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable in the instant case. 16) He also submits that the sole witness who has been examined till date has also implicated the present petitioners in the offence alleged against them in this case. 17) I have considered the submissions made by learned counsel for both sides and perused the materials available on record including the scanned copy of Bazaricherra Case No. 17/2023. 18) I have also gone through the rulings cited by the learned counsel for both the sides in support of the submissions made by them. 19) The Supreme Court of India in “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” (Supra) has observed that “grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985”. 20) The Apex Court in “Rabi Prakash Vs. State of Orissa” (Supra) has observed that “the prolonged incarceration, generally militates against the most Page No.# 5/8 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)(ii) of the NDPS Act.” 21) In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” (Supra), the Supreme Court of India has observed as follows: - “...........it is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.” 22) In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation” reported in AIR 2022 SC 3386 are relevant, same is quoted here in below: “49. Sub-section (1) mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the noncompliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is Page No.# 6/8 more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own.” 23) In view of the observations made by the Apex Court in the cases cited hereinabove, this Court is of considered opinion that for whatsoever reasons, if inordinate delay has been caused and if without any fault on the part of the petitioner he is kept under detention for a long period, it would certainly infringe his fundamental right guaranteed under Article 21 of the Constitution of India. 24) Under such circumstances, his constitutional rights guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37(1) (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he would be entitled to get bail on the ground of prolonged incarceration only. 25) In the instant case, the present petitioners have been detained behind the bars for more than last 2 years and even the copies of documents referred to in Section 230 of the BNSS, 2023 are yet to be furnished to him. 26) Thus, in view of the facts and circumstances of this case and in view of the observations made by the Apex Court in rulings cited hereinabove, this Court is of considered opinion that in the instant case also, the facts and Page No.# 7/8 circumstances are such that the long incarceration of the petitioners have outweighed the embargo of Section 37 of the NDPS Act, 1985 and thus, the petitioners are entitled to get bail on the ground of infringement of his fundamental right under Article 21 of the Constitution of India. 27) In view of the above, the petitioners, namely, (1) Anowar Hussain, and (2) Gulzar Hussain, are allowed to go on bail of Rs. 50,000/- (Rupees Fifty thousand only) each with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned Special Judge, Karimganj, Assam with the following conditions: i. That the petitioners shall cooperate in the trial of Special NDPS Case No. 07/2023, which is pending in the Court of learned Special Judge, Karimganj, Assam; ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioners 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 petitioners; iv. That the petitioners shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card as well as mobile number and other contact details before the Trial Court; v. That the petitioners shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such Page No.# 8/8 leave is granted by the Trial Court, the petitioners shall submit their leave address and contact details during such leave before the Trial Court; and vi. That the petitioners shall not commit any offence while on bail. 28) With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant