Page No.# 1/6 GAHC010223512024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3258/2024 NAZIM SEIKH S/O LATE ABDUL JABBAR R/O VILL- SONARI WARD NO. 9, P.S. SONARI DIST. CHARAIDEO, ASSAM VERSUS THE STATE OF ASSAM, REP. BY THE PP, ASSAM Advocate for the Petitioner : MS. S K NARGIS, MR. Z H BORA,MS N SULTANA,MS S BEGUM Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 10.03.2025 1. Heard Ms. S. K. Nargis, the learned counsel for the petitioner. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor for the State of Assam. Page No.# 2/6 2. This application, under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Nazim Seikh, who has been detained behind the bars since 10.01.2024 (for more than one (01) year three (03) months) in connection with NDPS Case No. 29/2024 under Section 21(c) of the NDPS Act, 1985. 3. The gist of the accusation in this case is that, on 10.01.2024, one Devendra Saikia, had lodged an FIR before the Officer-In-Charge of Jamuguri Police Station, inter-alia, alleging that on the basis of an information received through reliable sources, that a white-coloured Tata zest car is carrying suspected narcotic drugs from Dimapur towards Golaghat, a police team was constituted, and a naka checking was organized at Jamuguri Bazar, Tiniali. 4. During naka checking, at about 2.15 p.m., one vehicle bearing registration No. AS- 05-J-4519 was intercepted and was signaled to stop. The present petitioner was found as the sole occupant of the said vehicle. 5. During search of the said vehicle, 619.02 gram of suspected heroin was recovered therefrom. 6. On receipt of this said to FIR, Jamuguri P.S. Case No.1/2024 was registered under Section 21(c) of the NDPS Act, 1985. After completion of the investigation, charge- sheet was laid to against three persons, including the present petitioner. 7. Ms S.K. Nargis, the learned counsel for the petitioner has submitted that the present petitioner is not involved in the offence alleged in the FIR and he is an innocent person. 8. The learned counsel for the petitioner has further submitted that the petitioner has been detained behind the bars since more than one (01) year three (03) month and on the ground of prolonged incarceration he is entitled to get bail. She has also submitted that only ten (10) out of fifteen (15) listed prosecution witnesses have been examined and there is an unlikelihood of termination of the trial at the earliest. 9. In support of her submission, the learned counsel for the petitioner has cited a ruling Page No.# 3/6 of the Apex Court in the case of “Lavkush Patel Vs. The State of Madhya Pradesh” (SLP Criminal No.14505/2024) wherein the Apex Court granted bail to the petitioner of that case who was in jail for one (01) year one (01) month and was also facing charges of possessing commercial quantity of contraband. 10. The learned counsel for the petitioner has also submitted that till date ten (10) out of fifteen (15) prosecution witnesses have been examined including the seizure witnesses, who are the independent witnesses. She submits that none of the seizure witnesses has implicated the present petitioner in the offence alleged in this case. She has also submitted that apart from seizure witnesses, no other witness except the PW- 5, who is the first informant of this case has implicated him in this case. 11. The learned counsel for the petitioner has also submitted that the vehicle from which seized contraband were recovered does not belong to the present petitioner and one Ashok Rajkhowa is the owner of the said vehicle. However, this aspect was not investigated by the Investigating Officer. She submits that the owner of the vehicle has not been made as an accused in this case, neither his name is shown as a prosecution witness in the list of the witnesses. 12. She further submits that there is discrepancy in the weight of the contraband, which was seized in this case at different stages of investigation. She submits that in the FIR the weight of the suspected heroin, which was seized is shown to be 619.02 grams, whereas in the seizure list same was shown to be 619.48 grams. However, when the contraband was produced before the Magistrate for preparation of the inventory, the weight was first shown as 619.48 grams, and thereafter, it was shown as 636.28 grams. 13. She further submits that even while mentioning the weight of the contraband, it has not been made clear as to whether the weight mentioned is only of the suspected heroin or it include that of the containers also. She submits that if the weight, which has been mentioned also includes the weight of the container the petitioner might get benefit as the weight of the suspected heroin may come to a quantity which may not be of commercial quantity. Page No.# 4/6 14. 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 quantity of heroin seized in this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable. 15. The learned Additional Public Prosecutor submits that since the petitioner was the sole occupant of the vehicle from which the contraband was seized, he was having the conscious possession of the seized contraband. 16. He further submits that at this stage while considering the bail application the Court may not pick and choose the testimony of some of the witnesses ignoring the testimony of other witnesses, as five more listed witnesses are yet to be examined. 17. The learned Additional Public Prosecutor submits that the testimony of PW-4 and PW- 5 clearly implicates the petitioner in the offence alleged in this case. He also submits that five (5) more witnesses are yet to be examined and, therefore, at this stage, it may not be proper to come to a conclusion in favour of the petitioner on the basis of testimony of only three (3) of the prosecution witnesses. He further submitted that as the quantity of heroin seized in this case is of commercial quantity, the incarceration of one (01) year three (03) months, under the facts and circumstances of this case, may not be regarded as prolonged incarceration, so as to grant the petitioner the benefit of bail by overcoming the embargo of Section 37 of the NDPS Act, 1985. 18. I have considered the submissions made by learned counsel for both sides and have perused the scanned copy of the record of NDPS Case No. 29/2024, which was requisitioned in connection with this case. 19. As regards the submission of learned counsel for the petitioner that the weight of container and weight of suspected heroin was not separately mentioned in the seizure list, it appears on perusal of the inventory of the seized contraband, which has been certified by the learned Judicial Magistrate, the seized contraband were recovered in 57 numbers of separate soap boxes and from each of the boxes more than 5 grams of suspected heroin was sent for FSL Forensic Laboratory for examination. The quantity of heroin, which was sent to for forensic examination itself comes to more than 250 Page No.# 5/6 grams which is a commercial quantity of heroin. Therefore, the submission of learned counsel for the petitioner that the quantity of heroin seized might be less than commercial quantity is not sustainable. 20. Though, the learned counsel for the petitioner has submitted that the independent seizure witnesses have not implicated the present petitioner, however, it appears that it is not a case where none of the prosecution witnesses examined till date has implicated the present petitioner, rather PW-5 has clearly implicated the present petitioner and still more than five prosecution witnesses are yet to be examined. 21. Under such circumstances, this Court is of the considered opinion that it cannot be said at this stage that there are reasonable grounds for believing that the petitioner is not guilty of the offense alleged against him in this case, as the quantity of contraband seized in this case is of commercial quantity, therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case and the petitioner has failed to overcome the said embargo. 22. As regards the plea of the petitioner that he is entitled to bail on the ground of the long incarceration, there are several instances when the Apex Court has released the accused who are facing trial for possessing commercial quantity of contraband on their being detained behind the bars for more than one (01) year six (06) month, however, the case of “Lavkush Patel Vs. The State of Madhya Pradesh” (Supra) where the Apex Court has allowed the petitioner of that case to be released on bail after one year and one month of incarceration, it appears that same is not on the ground of prolonged incarceration but only on the basis of the facts of that particular case, hence, this Court is of the considered opinion that the benefit of ruling cited by the petitioner is not applicable to this case. Considering the quantity of contraband seized in this case, this Court is of the considered opinion that the period of one (01) year three (03) months may not be regarded as long enough to grant the benefit of bail to the petitioner on the basis of prolonged incarceration. Page No.# 6/6 23. For the aforesaid reasons, the prayer for bail is rejected at this stage JUDGE Comparing Assistant