Page No.# 1/8 GAHC010229422024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3390/2024 VIKRAM SINGH SON OF SHRI KIKAR SING, RESIDENT OF BABA FAEED NAGAR, SEHORA GRAM, TEHSIL- BISHNAH, P.O.-DHARP, P.S.-GANGYAL, DIST JAMMU, JAMMU AND KASHMIR VERSUS THE UNION OF INDIA REPRESENTED BY STANDING COUNSEL, DIRECTORATE OF REVENUE INTELLIGENCE, GUWAHATI ZONAL UNIT, GUWAHATI-05 Advocate for the Petitioner : MR. M HUSSAIN, MR. A Z AHMED Advocate for the Respondent : SC, DRI, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 07.03.2025 1. Heard Mr. A. Z. Ahmed, the learned counsel for the petitioner. Also heard Ms. M. Deka, learned counsel appearing on behalf of Mr. S. C. Keyal, learned standing counsel for the Directorate of Revenue Intelligence (DRI). Page No.# 2/8 2. This application, under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Vikram Singh, who has been detained behind the bars since 08.04.2022 (for more than 2 years 6 months) in connection with NDPS Case No. 218/2022, pending in the Court of the learned Additional Sessions Judge No.2, Kamrup (Metro), Guwahati, under Sections 20(b)(ii)(C)/22/29 of the NDPS Act, 1985. 3. The gist of the accusation in this case is that on 08.04.2022, one Shri Vishal Rai, Intelligence Officer, Directorate of Revenue Intelligence, Guwahati Zonal Unit, Guwahati, lodged a complaint under Section 8(c)/ 20(b)(ii)(C)/22/29 of the NDPS Act, 1985, against the present petitioner, inter-alia, alleging that acting on the basis of specific information received through the reliable sources, the Officers of DRI, Guwahati Zonal Unit intercepted a truck bearing registration No. JK-02-BL-8199, near Kanapara flyover on 08.04.2022, at about 0200 hours. The petitioner was found driving the said truck. 4. On search of the said truck, a total of 1218.250 kgs of suspected ganja was recovered from the said vehicle. 5. The learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars since more than 2 years, 6 months. However, till date, only 2 out of 8 listed prosecution witnesses have been examined and it is unlikely that the trial would culminate soon. 6. The learned counsel for the petitioner has submitted that under the facts and circumstances of the case, the petitioner is entitled to get bail on the ground of prolonged incarceration. 7. In support of his submission, the learned counsel for the petitioner has Page No.# 3/8 relied upon following rulings. In all these cases, the accused persons were charged of offences 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). Page No.# 4/8 viii. And a few other similar rulings. 8. On the other hand, Ms. M. Deka, learned counsel for the DRI has vehemently opposed the prayer for grant of bail to the present petitioner on the ground that the contraband seized in this case is of commercial quantity and the embargo of Section 37 of the NDPS Act, 1985 is applicable in this case. 9. She submits that the petitioner was driving the vehicle from which the seized contraband was recovered and in his statement, recorded under Section 67 of the NDPS Act, 1985 he has confessed to his guilt. 10. She has submitted that in such serious offences involving commercial quantity of contraband, the prolonged incarceration may not be a ground for releasing the accused persons on bail. In support of her submission, the learned counsel for the DRI has cited a ruling of the Apex Court in the case of “Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav” reported in (2005) 2 SCC 42. 11. I have considered the submissions made by learned counsel for both the sides and have gone through the materials available on records, including the scan copy of the case record of NDPS Case No. 218/2022, which was requisitioned from the Trial Court. 12. The case cited by the learned counsel for the DRI, namely, Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav (Supra) has different factual matrix and therefore, distinguishable from the present case. In that case, the accused was accused of threatening the witnesses and that was one of the grounds why the bail granted to him was Page No.# 5/8 cancelled. In the instant case, no such allegation is there. 13. 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”. 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 & Page No.# 6/8 Another” reported in AIR 2022 SC 3386 are relevant, same are 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 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 also, the petitioner has been detained behind the bars for more than 2 years, 6 months and only 2 out of 8 listed prosecution witnesses have been examined till date. Page No.# 7/8 18. This Court is of the 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 NDPS 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, he is entitled to get bail on the ground of the infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. 20. In view of the above, the petitioner, namely, Vikram Singh, 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 the learned Additional Sessions Judge No.2, Kamrup (Metro), Guwahati with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 218/2022, which is pending in the Court of the learned Additional Sessions Judge No.2, Kamrup (Metro), Guwahati; ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; Page No.# 8/8 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; vi. That the petitioner shall not commit any offence while on bail; vii. That any violation of the above conditions shall be a good ground for the Trial Court to get the petitioner arrested and commit him to custody. 21. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant