Page No.# 1/4 GAHC010197812024 2025:GAU-AS:1835 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2916/2024 MD IRFAN KHAN S/O MUHAMMAD SARBAT KHAN, R/O VILL- KALAROOSE, P.O. AND P.S.- KALAROOSE, DIST- KUPWARA, JAMMU AND KASHMIR, PIN-193222 VERSUS THE UNION OF INDIA REPRESENTED BY SC, NCB, GHC Advocate for the Petitioner : MR. B BARMAN, MS D DUTTA,MS H B BARMAN Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 21-02-2025 Heard learned counsel Mr. B. Barman and Ms. H. Barman for the petitioner Md. Irfan Khan, who has filed this application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 with prayer for bail as he is behind bars since 09.04.2021 in connection with NDPS Case No. 145/2021 arising out of NCB Crime No. 09/2021 under Sections 8(c) read with Section 20(b)(ii)(C) and 29 of Page No.# 2/4 Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short). 2. It is submitted on behalf of the petitioner that the petitioner is entitled to bail as the offence report/charge sheet was laid against him after 187 (One Hundred and Eighty Seven) days beyond the statutory period of 180 (One Hundred and Eighty) days. The other ground is that only 1 (One) witness has been examined so far and two (Two) witnesses have been party examined. As the trial has been procrastinated, the petitioners are entitled to bail. 9 (Nine) witnesses are enlisted as cited witnesses and considering the pace of trial, it appears that the conclusion of trial appears to be remote. The petitioner is the sole bread winner and he has to take care of his ailing mother. He was the driver of the truck and the consignment was heading from Agartala towards Ludhiana. The petitioner was not aware of the ganja in the truck. 3. Learned Standing Counsel, NCB, Mr. S.C. Keyal has raised serious objection stating that trial has commenced only last year i.e. on 11.01.2024 and already 3 (Three) witnesses have been examined. It cannot be assumed that the conclusion of trial appears to be remote as only 9 (Nine) witnesses are enlisted as cited witnesses. 3 (Three) witnesses have already been examined. It is further submitted by the learned counsel for the respondent that the order dated 01.02.2025 which was obtained from the website clearly reveals that it is not the Court or the prosecution who is responsible for procrastination of trial, but the accused had taken adjournment on 01.02.2025 when the witnesses were present. A slight delay has been caused due to the pandemic but now trial is progressing at a regular pace. The petitioner is a history sheeter and he is therefore not entitled to bail. The petitioner himself has admitted that he was involved in other offence relating to transportation of ganja. Page No.# 3/4 4. I have scrutinized the case records and have considered the submissions at the bar with circumspection. 5. Learned Standing Counsel, NCB has also relied on the decision of the Hon’ble Supreme Court in CBI Vs. Kapil Wadhawan reported in (2024) 0 Supreme (SC) 72 wherein it has been observed that :- “…There cannot be any disagreement with the well settled legal position with the rights of default bail u/s. 167(2) Cr.PC is not only a statutory right but is a right that flows from Article 21 of the Constitution of India. It is an indefeasible right, nonetheless it is enforceable only prior to the filing of the challan or the charge-sheet and does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to the accused after the filing of the challan. The constitution Bench in Sanjay Dutt Vs. State through CBI, Bombay, reported in (1994) 5 SCC 410, the Court has also taken the similar view”. 6. In this case it is submitted at the bar that the petitioner had not preferred bail earlier to the filing of the charge sheet or the challan. 7. Learned Standing Counsel NCB has relied on the decision of the Hon’ble Supreme Court in Narcotics Controal Bureau Vs. Kashif reported in (2024) 0 Supreme (SC) 1264 wherein it has been observed that :- “39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted 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. Page No.# 4/4 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….” 8. The allegation against the petitioner is that he was driving the truck, carrying 411 kgs of ganja. The argument of the learned counsel for the petitioner that the evidence of PW-2 does not implicate the petitioner holds no water. At this stage of bail, the nitty gritties of the evidence is not taken into consideration. The evidence of 3 (Three) witnesses have already been recorded. Further examination-in-chief of PW-3 has been reserved. 9. Not too many witnesses but only 9 (Nine) witnesses are enlisted as cited witnesses by the prosecution. The offence is of a grave nature. At this juncture, this Court is hesitant to grant bail to the petitioner. There is an embargo under Section 37 of NDPS Act. 10. Petition with prayer for bail stands rejected at this stage. However, learned Trial Court is directed to expedite the trial for speedy disposal of this case. The petitioner is at liberty to subsequently move a bail petition if trial is procrastinated any further. 11. In terms of the above observation, this Bail Application stands disposed of. JUDGE Comparing Assistant