Page No.# 1/5 GAHC010188542024 2025:GAU-AS:1709 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2863/2024 DEWAN KUMAR @ DEEPAK KUMAR S/O LATE GHUTAR DAS, RESIDENT OF KHATHIA, PS PIPRA, DIST SUAPUL, BIHAR, VERSUS THE STATE OF ASSAM REPRESENTED BY PP, ASSAM Advocate for the Petitioner : MR SISHIR DUTTA, MS S MOCHAHARI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 17.02.2025 1. Heard Mr. S. Dutta, the learned counsel for the petitioner. Also heard Mr. B. Sarma, the learned Additional Public Prosecutor, Assam. 2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita(BNSS), 2023 has been filed by the petitioner, namely, Page No.# 2/5 Dewan Kumar@Deepak Kumar, who has been detained behind the bars since 17.04.2023(for the last 1 year 10 months), in connection with Special(NDPS) Case No. 38/2023, pending in the Court of the learned Sessions Judge, Sribhumi(Karimganj) under Section 20(b)/(ii)(C)/25/29 of NDPS Act, 1985. 3. The gist of accusation in this case is that on 16.04.2023, one Niranjan Das, SI of Police had lodged an FIR before the Officer-In-Charge of Bazarichera Police Station, inter alia, alleging that during regular Naka Checking duty at Churaibari Watch Post at National Highway No. 8, one Truck bearing Registration No. TS 12UD 5624 was intercepted. The said Truck was carrying bamboo from Tripura. When the said Truck was searched by the police large quantity of suspected ganja (1420 Kgs) was found to be concealed beneath the bamboos in the Truck. On receipt of the said FIR, Bazarichera P.S. Case No. 88/2023 was registered and investigation was initiated. 4. Ultimately on completion of the investigation, charge sheet was laid on 27.09.2023 against the present petitioner. 5. The learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars for more than 1 year 10 months and till date, out of 9(nine) listed prosecution witnesses, only 1(one) has been examined and at this stage, there is unlikelihood that the trial would culminate soon. He submits that under such circumstances, the petitioner is entitled to get bail on the ground of prolonged incarceration. He has cited a ruling of the Apex Court in the case of “Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another,” Criminal Appeal No. 2787/2024, arising out of SLP(Crl) No. 3809/2004 wherin, it was observed by the Apex Court that if the accused has been detained for a long and the trial is not progressing, under such Page No.# 3/5 circumstances, the State or Prosecuting Agency should not oppose the plea of bail on the ground that the crime committed is serious. 6. It was observed by the Apex Court that the Article 21 of the Constitution applies irrespective of the nature of crime. 7. On the other hand, Mr. B. Sarma, the learned Additional Public Prosecutor, has vehemently opposed the grant of bail to the present petitioner on the ground that huge quantity of ganja is involved in this case and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He also submits that the sole witness, who has been examined by the prosecution side has implicated the present petitioner in the offence alleged against him. 8. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials available on record, including the scanned copy of the case record of Special(NDPS) Case No. 38/2023. 9. The Supreme Court of India has observed in the case of “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC 7/10 SC 352” 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”. 10. The Apex Court has observed in the case of “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” 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.” 11. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” (supra), the Supreme Court of India has observed as follows: - “...........it is to Page No.# 4/5 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.” 12. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited hereinabove, for whatsoever reason if inordinate delay is 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 rights guaranteed under Article 21 of the Constitution of India. 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. 13. In the instant case, the petitioner has been detained behind the bars for more than 1 year 10 months and the trial has not yet culminated and only 1(one) prosecution witnesses have been examined. 14. Under the facts and circumstances of this case, in the considered opinion of this Court, the long incarceration of the petitioner has, in the instant case as well, outweighed the embargo of Section 37 of the NDPS Act, 1985. Therefore, he is entitled to get bail on the ground of the infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. 15. In view of the above, the petitioner, namely, Dewan Kumar@Deepak Kumar`, is allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) 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 learned Special Page No.# 5/5 Judge, Sribhumi( Karimganj) with the following conditions:- i. That the petitioner shall cooperate in the trial of Special(NDPS) Case No. 38/2023, which is pending in the Court of learned Special Judge, Sribhumi(Karimganj); 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 as well as, 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. 16. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant