Page No.# 1/7 GAHC010193102024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2848/2024 MOINUL ISLAM S/O- LATE ABDUL KASHIM, R/O- VILL.- BADE UTTAR, P.O. BADARPUR, P.S. BADARPUR, DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR H R CHOUDHURY, S. TALUKDAR,A S PRODHANI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 19.02.2025 1. Heard Mr. H. R. Choudhury, the learned counsel for the petitioner. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor, Assam. 2. This application under Section 483 of the Bharatiya Nagarik Page No.# 2/7 Suraksha Sanhita (BNSS), 2023 has been filed by the petitioner, namely, Moinul Islam, who has been detained behind the bars since 16.03.2023 (for the last more than 1 year 08 months), in connection with Special (NDPS) Case No. 66/2023, arising out of Badarpur P.S. Case No. 159/2023 under Section 22(c)/25/29 of the NDPS Act, 1985. 3. The gist of accusation in this case is that on 15.06.2023, an FIR was lodged by one Dibakar Gogoi, SI of Police before the Officer-In- Charge of Badarpur Police Station, inter-alia, alleging that on receipt of a secret information through reliable source, regarding dealing of narcotics drugs by the present petitioner, a search team was constituted and it went to Nandapur Market and after a few minutes, the petitioner came to Nandapur Market in his scooty bearing Registration No. TR 05 D 6703 and parked the same in the Nandapur Market. Later on, after search of the said scooty 520 grams of Yaba tablets, containing methamphetamine was seized therefrom. 4. The learned counsel for the petitioner has submitted that the petitioner is innocent and has been falsely implicated in this case. He submits that the petitioner is neither the owner of the scooty, from which the seized contraband were recovered nor he had parked the scooty in the Nandapur Market. 5. The learned counsel for the petitioner further submits that the petitioner has been detained behind the bars for the last 1 year 08 months and till date, only 2(two) out of 11(eleven) listed prosecution witnesses have been examined. Page No.# 3/7 6. The learned counsel for the petitioner submits that the petitioner is entitled to get bail on the ground of prolonged incarceration only. 7. In support of his submissions, the learned counsel for the petitioner has also cited the following rulings:- i. Shariful Islam alias Sharif Vs. the State of West Bengal (Special Leave to Appeal (Criminal) No. 4173/2022) (Incarceration for 1 year 6 months). ii. Anjan Nath Vs. for the State of Assam Special Leave to Appeal (Criminal No. 9860/2023) iii. Chitta Biswas alias Subhash Vs. the State of West Bengal (SLP Criminal No. 8823/2019 (Incarceration for 1 year 6 months). iv. Nitish Adhikari alias Bapan Vs. State of West Bengal SLP Criminal No. 5769/2022 (Incarceration for 1 year 7 months). v. And a few other similar rulings. 8. On the other hand, the learned Additional Public Prosecutor, has opposed the grant of bail to the present petitioner on the ground that the quantity of contraband seized in this case are of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 9. The learned Additional Public Prosecutor also submits that there are sufficient materials in record to show that the scooty from which the contraband were recovered was parked by the present petitioner in the Nandapur Market. He also submits that the charges in this case were framed on 14.12.2023, and thereafter, already (two) of the listed prosecution witnesses have been examined. He submits that the Page No.# 4/7 remaining 5(five) would be examined very soon and this is not a case where the petitioner may be granted bail, considering the embargo of Section 37 of the NDPS Act, 1985. 10. I have considered the submissions made by the learned counsel for both the sides and have perused the scanned copy of the with Special (NDPS) Case No. 66/2023 carefully. 11. The Supreme Court of India has observed in the case of “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online 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”. 12. 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.” 13. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” reported in “2024 LiveLaw (SC) 416”, 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.” Page No.# 5/7 14. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation & Another 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 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.” 15. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited here in above, 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 Page No.# 6/7 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. 16. In the instant case, it is pertinent to note that the petitioner has been languishing behind the bars for the last 1 year 08 months and till date, only 2(two) out of 11(eleven) listed prosecution witnesses has been examined. 17. 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. 18. In view of the above, the petitioner, namely, Moinul Islam, 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 the learned Special Judge, Sribhumi (Karimganj) with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 66/2023, which is pending in the Court of the learned Special Judge, Sribhumi (Karimganj); ii. That the petitioner shall appear before the Trial Court as Page No.# 7/7 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. 19. With the above observation, this bail application is accordingly, disposed. JUDGE Comparing Assistant