Page No.# 1/7 GAHC010214312024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3133/2024 MAJIR UDDIN S/O MUKTAR ALI, VILL- CHANDPUR, P.S.-KARIMGANJ, DIST- KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, 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 : 28.02.2025 1. Heard Mr. H. R. Choudhury, the learned counsel for the petitioner. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor, appearing for the State of Assam. 2. This is an application under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, filed by the petitioner, namely, Majir Uddin, who has been Page No.# 2/7 detained behind the bars since 12.07.2023 in connection with Special (NDPS) Case No. 82/2023, pending in the Court of learned Special Judge (NDPS), (Karimganj), Sribhumi under Section 22(c) of the NDPS Act, 1985. 3. The gist of accusation in this case is that on 22.07.2023, one Dipyoti Malakar, had lodged an FIR before the Officer-In-Charge of Karimganj Police Station, inter-alia, alleging that the information was received through reliable sources that one person was suspected of trafficking drug at Ranibari area. 4. Accordingly, a search team was constituted and it proceeded to the ONGC Road opposite Janta School where a person holding numbers of brown coloured gunny bags in his hand was apprehended. The person apprehended was the present petitioner and 137 numbers of Phensedyl cough syrup, 100 ml each bottle were found from his possession. 5. On receipt of the said FIR, Karimganj P.S. Case No. 515/2023 was registered and an investigation was initiated. 6. Ultimately, on completion of the investigation, charge sheet was laid against the present petitioner under Section 21(c) of the NDPS Act, 1985. 7. The learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars for more than 1 year 7 months, however, none of the 9 listed prosecution witnesses have been examined till date and there is no likelihood of culmination of the trial at the earliest. 8. The learned counsel for the petitioner, therefore, submits that the petitioner is entitled to get bail on the ground of prolonged incarceration only. 9. 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: - Page No.# 3/7 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. 10. On the other hand, the learned Additional Public Prosecutor has 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. 11. He further submits that the Trial Court is repeatedly issuing summons to the witnesses, however, in-spite of repeated issuance of summons, none of the witnesses have appeared before the Trial Court. 12. He further submits that the scanned copy is updated till December 2024 and till then no witness was examined. Page No.# 4/7 13. I have considered the submissions made by learned counsel for both the sides and have perused the scanned copy of the Special (NDPS) Case No. 82/2023. 14. 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.” 15. 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.” 16. 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 Page No.# 5/7 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 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.” 17. In the instant case, the petitioner has been detained behind the bars for more than 1 year 7 months and none of the 9 listed prosecution witnesses has been examined till date. 18. This Court is of the considered opinion that in view of the observation made by the Apex Court in the cases cited hereinabove, for whatsoever reason, if an inordinate delay is caused and if without any fault on the part of the Page No.# 6/7 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. 19. 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, the petitioner is entitled to get bail on the ground of the infringement of his fundamental rights guaranteed under Article 21 of the Constitution of India. 20. In view of the above, the petitioner, namely, Majir Uddin, 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 residing within the State of Assam) subject to the satisfaction of the learned Special Judge (NDPS), (Karimganj) Sribhumi with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 82/2023, which is pending in the Court of learned Special Judge (NDPS), (Karimganj) Sribhumi; ii. That the petitioner shall appear before the learned Special Judge (NDPS), Karimganj as and when so required by the learned Special Judge (NDPS), (Karimganj) Sribhumi; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted Page No.# 7/7 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. 21. 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. 22. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant