Page No.# 1/9 GAHC010193732025 2025:GAU-AS:13296 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2873/2025 ACHCHELAL SAHANI S/O LATE MUSHAR SAHANI R/O WARD NO. 09, VILL- MATHURAPUR, P.O. MATHURAPUR, P.S. TURKAULIA, DIST. EAST CHAMPARAN, BIHAR- 845429. VERSUS THE UNION OF INDIA REP. BY THE SC, NCB Advocate for the Petitioner : MS. S K NARGIS, F RAHMAN,MS N SULTANA,MS S BEGUM Advocate for the Respondent : SC, NCB, Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 24.09.2025 1. Heard Ms. S.K. Nargis, learned counsel for the petitioner. Also heard Ms. R. Hussain, learned counsel for NCB. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, 1. Achchelal Sahani, who has been detained behind the bars since 25.10.2021 (for last 3 years 11 months) in connection with NDPS Case No. 110/2021, arising out of NCB Crime No.23/2021 registered under Sections 8(c)/20(b)(ii)(c) of NDPS Act. 3. The gist of the accusation in this case is that on 01.09.2021, an information was received through reliable sources that one person namely, Sandeep will be carrying huge quantity of ganja in a container truck bearing registration no.UP-83BT-3107. Page No.# 3/9 Accordingly, a naka checking was organized and the said vehicle was intercepted. During search of the said vehicle, 207.100 kg of suspected ganja was recovered from them. 4. The learned counsel for the petitioner has submitted nothing was seized from the possession of the present petitioner. He has been arrested only on the basis of a call details from a phone number recovered during the search of the vehicle. 5. She further submits that the final complaint was submitted against the present petitioner and two other accused persons. She submits that the petitioner has been languishing behind the bars for last more than 3 years 11 months and only two out of ten listed prosecution witnesses have been examined. She further submits that as the trial is not progressing hence, the fundamental rights guaranteed to the petitioner under the Article 21 of the Constitution of India has been infringed in this case and on that count, he is entitled to get bail in this case. 6. She has cited rulings of the Apex Court in support of her submission to bring home the point that prolonged incarceration overrides the embargo of Section 37 of the NDPS Act, 1985. Page No.# 4/9 7. On the other hand, learned counsel for NCB prays for filing a written objection. It appears from the order sheet that on last occasion, when the matter was listed i.e. on 03.09.2025, no such prayer for filing of written objection was made by the NCB. Hence, when the scanned copy of the records of the trial court has been received, seeking of further time for filing written objection appears to be only delay the disposal of this bail application when the petitioner is primarily approach this Court on the basis of violation of his fundamental right on the ground of prolonged incarceration. 8. I have considered the submissions made by the learned counsel for both sides and have gone through the materials on record including the scanned copy of the trial court records which were requisitioned in connection with this case. 9. The Supreme Court of India in “Mohd Muslim Hussain Vs. State (NCT of Delhi)" reported in 2023 SCC Online SC 352'” 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". 10. The Apex Court in "Rabi Prakash Vs. State of Orissa" reported in “2023 SCC Online SC 1109,” has observed that Page No.# 5/9 "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 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 are quoted here in below: "49. Sub-section (1) mandates courts to continue the proceedings on a day-to-should reach the logical end. Various directions have been issued by this Court day basis till the completion of the evidence. Therefore, once a trial starts, it 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 Page No.# 6/9 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." 12. In the instant case also, as the petitioner has been detained behind the bars for more than 3 years 11 months and the trial has progressed very slowly as only two out of ten listed prosecution Page No.# 7/9 witnesses have been examined. 13. This court is of the considered opinion that the period of incarceration undergone by the petitioner may be regarded as long enough to have cause infringement of his fundamental right guaranteed to him under Article 21 of the Constitution of India and as such it would out way the fetters imposed under Section 37(1)(b) (ii) of the NDPS Act, 1985. This Court is therefore of the considered opinion that petitioner is entitled to get bail on the ground of prolonged incarceration. 14. In view of the above, the above-named petitioner, is allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties of like amount subject to the satisfaction of the learned Additional Sessions Judge No.5, Kamrup(M) with the following conditions - i. That the petitioner shall cooperate in the trial of NDPS Case No. 110/2021, which is pending in the Court of the learned Additional Sessions Judge No.5, Kamrup(M). Page No.# 8/9 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, 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 Page No.# 9/9 such leave before the Trial Court; 15. Accordingly, this bail application stands disposed of. JUDGE Comparing Assistant