Page No.# 1/6 GAHC010206372024 2025:GAU-AS:113 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3026/2024 BABUL BISWAS S/O LATE UMESH BISWAS, R/O VILL RANGUTIA, P.S LEPUNGA, DISTRICT WEST TRIPURA, TRIPURA VERSUS STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MS. S K NARGIS, MS N SULTANA,MS S BEGUM Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 06.01.2025 1. Heard Ms. S.K. Nargis, learned counsel for the petitioner Babul Biswas. 2. The petitioner has filed this application under Section 483 of the BNSS with prayer for bail as he is behind bars since 27.03.2023 in Page No.# 2/6 connection with NDPS Case No. 82/2023 arising out of Garchuk P.S. Case No. 90/2023 under Sections 20(C)/29 of the NDPS Act, 1985. 3. Heard Mr. K. K. Das, learned Additional Public Prosecutor, Assam for the respondent State. 4. Learned counsel for the petitioner has submitted that charges were framed on 07.12.2023, but not a single witness has been examined so far. The FIR clearly unfolds that during Naka checking, the driver fled. The present petitioner was not the driver of the vehicle. It cannot be held that the contraband was seized from the conscious possession of this petitioner as the contraband was found inside the truck occupied by the petitioner, but the contraband was hidden in the driver's cabin as alleged. The petitioner is behind bars for 1 year 9 months. 5 witnesses have been enlisted in the charge-sheet but not a single witness has been examined so far. The petitioner's precious right to personal liberty has been curtailed due to the procrastination of the trial. The petitioner's conduct has to be assessed as the petitioner is not the one who has fled the scene. The truck was hired. The seizure was not as per provisions of law and the petitioner is entitled to bail as he is not restricted by the rigors of Section 37 of the NDPS Act. 5. Learned Additional Public Prosecutor has raised serious objection stating that the argument of the learned counsel for the petitioner that the petitioner is languishing in the jail for 1 year 9 months without trial does not hold water. Commercial quantity of contraband was recovered from his possession. The contraband was kept concealed. 6. On the other hand, learned counsel for the petitioner has relied on Page No.# 3/6 the decision of the Hon'ble Supreme Court in Nizam Sheikh @Md. Nizam Sk @ Md Nizam Sk Vs. The State of West Bengal, wherein vide order dated 15.04.2024, in connection with SLP Criminal No. 1127/2024, it has been observed that:- “It is submitted by the learned counsel for the appellant that the appellant was not in conscious possession of the offending material and that the prosecution has not complied with the requirements of Section 52-A of the NDPS Act. Further, the appellant is in jail since 28.03.2022 and the trial is not likely to be completed in the near future. Therefore, the appellant may be granted bail during the pendency of the trial.” The facts and circumstances of this case is however, not similar to the case of Nizam Sheikh(Supra). 7. Learned counsel for the petitioner has also relied on the decision of the Hon'ble Supreme Court in Manish Vs. The State of Haryana, reported in 2024 Supreme (Online) (SC) 9481, wherein it has been observed that:- “Since around 10 more prosecution witnesses are still to be examined, the trial is unlikely to conclude on a near date. Accordingly, we deem it appropriate to grant bail to the petitioner - Manish. It is ordered accordingly. The learned trial court will impose appropriate bail conditions including such bail conditions as to dispel the concern of the State counsel. The petitioner may be asked to report periodically to the local police station. However, appropriate and necessary bail conditions are left to be imposed by the learned trial court.” Page No.# 4/6 8. Reverting back to this case, it is held that in this present case, only 5 witnesses are enlisted as cited witnesses in the charge-sheet, which is not similar to the case of Manish(Supra), where 10 more prosecution witnesses were to be examined. It is discernible that similar span of time will not be required to complete the recording of the evidence of 5 witnesses vis-a-vis the recording of evidence of 10 witnesses. 9. Learned counsel for the petitioner has also relied on the decision of the Hon'ble Supreme Court in Ankur Chaudhary Vs. The State of Madhya Pradesh, wherein vide order dated 28.05.2024, in connection with SLP Criminal No. 4648/2024, it has been observed that:- Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. 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.” 10. Reverting back to this case, it is held that Ankur Choudhary was behind bars for more than 2 years and the panch witnesses did not support the prosecution case whereas the present petitioner has been behind bars for 1 year 9 months, and not a single witness has been examined to assess the probability of conviction to negate the rigors of Section 37 of the NDPS Act. Page No.# 5/6 12. I have considered the submissions at the Bar with circumspection. The FIR unfolds that during Naka checking by the investigating team, the truck bearing registration No. TR-01 AU-1894, was approaching from Lokhora through the NH- 37. When the truck was signaled to be halted, the driver of the truck tried to escape, however, the team managed to intercept the vehicle and the present petitioner along with his co-accused was found inside the vehicle but the driver escaped. Suspecting the demeanor of the petitioner when confronted, the truck was checked, and inside the vehicle, 33 small packets wrapped with brown coloured cello tape and 4 large packets wrapped with brown coloured cello tape were found inside the driver's cabin concealed inside the driver's seat of the above mentioned truck. 13. It is true that not a single witness has been examined so far, but at the same time, it cannot be ignored that rigors of Section 37 comes into play. This is a serious offence and it will be apt to reiterate that the length of detention is not a ground for bail in offences of serious nature, more so, when at this juncture, the rigors of Section 37 of the Act restricts bail. 14. At this juncture, I am not inclined to grant bail to the petitioner. Petition with prayer for bail stands rejected at this stage. However, the petitioner is at liberty to file a subsequent petition, in the event, if trial is procrastinated any further by the Court or by the prosecution. 15. The Trial Court is directed to expedite the trial for speedy disposal of this case. JUDGE Page No.# 6/6 Comparing Assistant