Page No.# 1/9 GAHC010202892024 2025:GAU-AS:1481 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3139/2024 MAKBUL HUSSAIN S/O MOTOSIN ALI, R/O VILL- PURAN CHANDPUR, P.S.-PATHARKANDI, DIST- KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,U U KHAN,MR. A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 13.02.2025 1. Heard Mr. M.A. 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.# 2/9 Suraksha Sanhita(BNSS), 2023 has been filed by the petitioner, namely, Makbul Hussain, who has been detained behind the bars since 27.06.2023 (for more than 1 year 7 months), in connection with Special (NDPS) Case No. 75/2023, pending before the Court of learned Special Judge, Sribhumi(Karimganj). 3. The gist of accusation in this case is that on 26.06.2023, one Nilov Jyoti Nath, had filed an FIR before the Officer-In-Charge of Ramkrishna Nagar Police Station, regarding receipt of an information regarding transportation of huge quantity of drugs from Hailakandi to Sribhumi (Karimganj) via Ichancherra. 4. On the basis of said information a Naka checking was arranged near Ichancherra AD camp and one vehicle bearing registration No. AS11Y7668 was intercepted. Two persons, including the present petitioner was found in the said vehicle and during search of the said vehicle 2,272.61 grams of suspected heroin was found from there. 5. On receipt of the said FIR, Ramkrishna Nagar P.S. Case No. 93/2023 was registered under Section 21(C)/25/29 of the NDPS Act, 1985 and the investigation was initiated. Ultimately, after completion of the investigation, the charge sheet was laid. 6. The learned counsel for the petitioner has submitted that the petitioner has been languishing behind the bars for more than 1 year 7 months). He submits that though the charge sheet was laid on 19.12.2023, till date not even a single witness has been examined by the prosecution side and the trial is yet to commence. Page No.# 3/9 7. The learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” wherein it has been observed by the Apex Court 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.” 8. The learned counsel for the petitioner has also relied on ruling of the Apex Court in the case of “Zakirul Islam @Md. Zakirul Islam @ Zakir Vs. State of Assam” Special Leave to Appeal (Crl.) No. 3632/2024 dated 15.07.2024 and in the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” Special Leave to Appeal (Crl.) No. 4648/2024 dated 28.05.2024, wherein the Apex Court granted bail to the petitioner in offence concerning commercial quantity of Narcotic Drugs and Psychotropic Substances on the ground of prolonged incarceration for more than 1 year 06 months. 9. The learned counsel for the petitioner has also cited the following rulings where the Apex Court had granted bail to the petitioner facing charges for possessing commercial quantity of contraband on the ground of prolonged incarceration:- a. “Chitta Biswas @ Subash Vs. The State of West Bengal Criminal Appeal No(s) 245 of 2020. (Decided on 07.02.2022);” Page No.# 4/9 b. “Nitish Adhikary@Bapan Vs. The State of West Bengal SLP(CRI) 5769/2022 (Decided on 01.08.2022);” c. “Kabirul Islam & Anr Vs. The State of West Bengal SLP(Crl) No 12773/2023. (Decided on 28.02.2024);” d. “Karnail Singh Vs. The State of Odisha Criminal Appeal No 2027/2022 arising out of SLP(Crl) No 9067/2022.(Decided 22.11.2022);” e. “Rased Mia Vs. The State of West Bengal SLP(Crl) No 14347/2023 (Decided on 24.01.2024);” f. “SLP(CRL) No 5068/2024 Dhirendra Kr. Choudhury Vs. The State of Assam (Decided on 14.08.2024);” g. “Zakirul Islam @ Md Zakirul Islam @Zakir Vs. The State of Assam.(Decided on 15/07/2024);” h. Bail Appln 2978/2024 “Bivesh Kumar Vs. The State of Assam. (Decided on 20.12.2024).” 10. 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 is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He submits that in cases under NDPS Act, the accused may Page No.# 5/9 be detained behind the bars during investigation for 180 days which may be extended with the leave of the Court for another 180 days and therefore, this period of detention may not be considered while considering the plea of long incarceration of the accused. He submits that in this case the trial could not commence till now as the appearance of co- accused could not be procured till date and same may not be a ground for giving benefit of bail to the present petitioner. 11. I have considered the submissions made by the learned counsel for the parties and have gone through the materials available on record carefully. 12. 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”. 13. The Apex Court in “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” has 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.” 14. 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 Page No.# 6/9 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.” 15. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil” 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.# 7/9 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.” 16. This Court fails to persuade itself with the submissions made by the learned Additional Public Prosecutor that the period of detention undergone by the petitioner during investigation should not be taken into consideration while considering the plea of long incarceration. The entire period during which the petitioner has been detained be it in investigation stage or during trial stage shall have to be taken into consideration, while computing period of detention for considering as to whether the benefit of bail due to long incarceration should be granted to the present petitioner. 17. In the instant case, the petitioner has been languishing behind the bars for more than 1 year 07 months and the trial is yet to commence. 18. Under such circumstances, his constitutional rights guaranteed under Article 21 of the Constitution of India would outweigh the fetters Page No.# 8/9 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. 19. 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 circumstances are such that the long incarceration of the petitioner has outweighed the embargo of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and thus, he is entitled to get bail on the ground of infringement of his fundamental right under Article 21 of the Constitution of India. In view of the above, the petitioner, namely, Makbul Hussain, 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. 75/2023, which is pending in the Court of the learned Special Judge, Sribhumi(Karimganj); ii. That the petitioner shall appear before the Trial Court as 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 Page No.# 9/9 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. 20. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant