Page No.# 1/5 GAHC010238922024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3480/2024 MD MUAJ S/O MD. MAOLANA ALIUDDIN VILL- LILONG TUREL AHANBI P.S. LILONG DIST. THOUBAL, MANIPUR. VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MOTIUR RAHMAN, MR. NOOR KUTUB ALAM Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 07.04.2025 1. Heard Mr. M. Rahman, learned counsel for the petitioner. Also heard Mr. K. K. Das, learned Additional Public Prosecutor for the State of Assam. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Md. Muaj, who has been detained behind the bars since 12.08.2023 (for more than 1 year 7 months) in connection with NDPS Case No. 05/2024 arising out of Dillai P.S. Case No. 48/2023 under Sections 21(C) of the NDPS Act, 1985, which is pending in the Court of the Court of learned Special Page No.# 2/5 Judge, NDPS, Karbi Anglong, Diphu. 3. The gist of accusation in this case is that on 11.08.2023 one Sarat Kakati had lodged an FIR before the Officer-in-charge of Dillai Police Station, inter alia, alleging that on receipt of an information through secret sources regarding transportation of huge quantity of narcotics from Manipur to other States via Karbi Anglong, a naka checking was conducted in front of Lahorijan PP on National Highway No. 36 and during checking one blue colour Maruti Suzuki Swift car bearing Registration No. WB-06-J-0370 was intercepted which was driven by the present petitioner and on search of the said vehicle 991.66 grams of suspected Morphine was recovered. 4. The learned counsel for the petitioner has submitted that the charge- sheet was laid against the above named petitioner on 12.08.2023. However, he submits that though the petitioner has been behind the bars for more than 1 year 7 months, however, till date only one out of six listed prosecution witnesses have been examined and, therefore, he submits that on the ground of prolonged incarceration, the petitioner may be allowed to go on bail. 5. 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 contraband involved in this case is of commercial quantity and, therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable in this case. He also submits that the sole prosecution witness, who has already been examined, has implication the present petitioner in the offence alleged against him and, therefore, he may not be granted bail to the present petitioner. 6. I have considered the submissions made by the learned counsel for both the sides and have perused the scanned copy of the NDPS Case No. Page No.# 3/5 05/2024 which was requisitioned in connection with this case. 7. 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”. 8. 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.” 9. 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.” 10. In the instant case also, the petitioner has been detained behind the bars for more than 1 year 7 months and only one witness have been examined till date and there is unlikelihood that the trial would culminate soon. 11. This Court is of considered opinion that in view of the observation made Page No.# 4/5 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. 12. 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. 13. In view of the above, the petitioner, namely, Md. Muaj, 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 Special Judge, NDPS, Karbi Anglong, Diphu with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 05/2024, which is pending in the Court of the learned Special Judge, NDPS, Karbi Anglong, Diphu; 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 Page No.# 5/5 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 the petitioner shall appear before the Officer-in-Charge of Dillai Police Station once in every fortnight till the pendency of the NDPS Case No. 05/2024; viii. 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. 14. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant