Page No.# 1/8 GAHC010205392024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3831/2024 JAYNAL HOQUE S/O ABDUL ROUF R/O VILL- SERALIPUR, W/NO. 04, BADARPUR, P.S. BADARPUR, DIST KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR H R CHOUDHURY, A S PRODHANI,S. TALUKDAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 03.03.2025 1. Heard Mr. H. R. Choudhury, learned counsel for the petitioner. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor, appearing for the State of Assam. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Jaynal Hoque, who has been detained behind the bars since Page No.# 2/8 21.08.2023 (for more than one year, six months), in connection with Special (NDPS) Case No. 109/2023 pending in the Court of learned Sessions Judge, Karimganj. 3. The gist of the accusation in this case is that on 22.08.2023, one Dibakar Gogoi, S.I of Police had lodged an F.I.R before the Officer-in-Charge of Karimganj Police Station, inter alia, alleging that on 21.08.2023 at about 12.10 PM, the Additional S.P (HQ), Karimganj received an information through reliable sources regarding illegal transportation of suspected Yaba tablets from Seralipur towards Karimganj. Accordingly, a police team was constituted and dispatched towards Naka checking point in front of M.M Home Fashions at Chargola. While the police team arrived there, they saw a person holding a black color polythene in his hand who was trying to flee away from the police team. The said person was apprehended and after following due procedure, he was searched. The said person was identified as Joynal Hoque. After due search of the said person, 2.191 kg of suspected Yaba tablets (containing methamphetamine) was recovered from his possession. 4. It is further stated in the FIR that during interrogation, Joynal Hoque revealed that the suspected Yaba tablets were peddled by him, as per the instructions of Jamal Hussain who was staying in a rented house situated at Sorapur, Rangabazar. Accordingly, the police team rushed to Sorapur, Rangabazar at about 3:50 PM and as showed by Joynal Hoque, searched the house of Jamal Hussain. It is further stated in the FIR that during the search operation, the petitioner Jamal Hussain was not found in the said house. However, his wife was present there. During the search, a total of 0.489 kg of suspected Yaba tablets were recovered which were kept in a black color polythene hanging on the wall of the kitchen of the said house. Page No.# 3/8 5. Learned Counsel for the petitioner has submitted that the petitioner has been detained behind the bars for more than one year, six months, however, even charges are not yet framed. He submits that there is unlikelihood of culmination of trial at the earliest and, therefore, the petitioner is entitled to get bail on the ground of prolonged incarceration only. 6. In support of his submission, the learned counsel for the petitioner has relied upon following rulings. In all these cases, the accused person were charged of offenses relating to commercial quantity of contraband and they were granted bail mainly on the ground of prolonged incarceration: - i. Khurshid Ahamad @ Wasim Ahmad Vs the State of Bihar (SLP Criminal No. 16726/2023) (Incarceration for 1 year 10 months). ii. Kalpesh Gulab Bhai Khojaji Vs. the State of Gujarat (SLP Criminal No.2325/ 2023) (Incarceration for 1 year 5 months). iii. Jairam Vs. the State of Rajasthan (SLP Criminal No. 2479/2024) (Incarceration for 1 year 9 months). iv. Shariful Islam alias Sharif Vs. the State of West Bengal (Special Leave to Appeal (Criminal) No. 4173/2022) (Incarceration for 1 year 6 months). v. Anjan Nath Vs. for the State of Assam Special Leave to Appeal (Criminal No. 9860/2023) vi. Chitta Biswas alias Subhash Vs. the State of West Bengal (SLP Criminal No. 8823/2019 (Incarceration for 1 year 6 months). vii. Nitish Adhikari alias Bapan Vs. State of West Bengal SLP Criminal No. 5769/2022 (Incarceration for 1 year 7 months). viii. And a few other similar rulings. 7. On the other hand, the learned Additional Public Prosecutor has Page No.# 4/8 vehemently opposed the grant of bail to the present petitioner on the ground that the 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. 8. The learned Additional Public Prosecutor has submitted that the trial got delayed as the co-accused Jamal Hussain was evading the course of justice and he had to be apprehended by issuing non-bailable warrant of arrest against him. He submits that the prosecution is not at fault for the delay caused in the trial and, therefore, the petitioner against whom there are sufficient incriminating materials on record may not be granted bail in this case. 9. I have considered the submissions made by the learned counsel for both the sides and have gone through the scanned copy of the case record of Special (NDPS) Case No. 109/2023 which was requisitioned in connection with this case. 10. 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”. 11. 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.” Page No.# 5/8 12. 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.” 13. 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 Page No.# 6/8 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.” 14. In the instant case, the petitioner has been detained behind the bars for more than one year, six months and even charges are yet to be framed. Hence, apparently it appears that the trial is unlikely to culminate at the earliest. 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 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. 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 Page No.# 7/8 fundamental right guaranteed under Article 21 of the Constitution of India. 17. In view of the above, the petitioner, namely, Jaynal Hoque, is allowed to go on bail of Rs. 2,00,000/- (Rupees Two 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 Sessions Judge, Karimganj with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 109/2023, which is pending in the Court of learned Sessions Judge, 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, 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. vii. That the petitioner shall appear before the Officer-in-Charge of Page No.# 8/8 Karimganj Police Station once in a fortnight without fail during pendency of the trial of Special (NDPS) Case No. 109/2023 pending before the Court of learned Sessions Judge, Karimganj. 18. Violation of any of the above condition would be a good ground for the Trial Court to exercise its powers under Section 483(3) of the BNSS, 2023. 19. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant