Page No.# 1/10 GAHC010243172023 2025:GAU-AS:1539 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3941/2023 CHECHHAM HEFAJUDDIN S/O MR. CH. FAJUR RAHMAN R/O IRON CHESABA P.O. AND P.S. MAYANG DIS. THOUBAL, MANIPUR. VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MS. S K NARGIS, MS N SULTANA,MS S BEGUM Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 14.02.2025 1. Heard Ms. S.K. Nargis, the learned counsel for the petitioner. Also heard Mr. R.J. Baruah, the learned Additional Public Prosecutor, Assam. Page No.# 2/10 2. This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Chechham Hefajuddin, who has been detained behind the bars since 22.07.2023(for last 1 year 06 months and 19 days). 3. The gist of accusation in this case is that on 22.07.2023, one Sri Sarat Kakati, SI of Police, had lodged an FIR before the Officer-In-Charge of Dillai Police Station, inter-alia, alleging that at about 2:00 PM, while conducting routine Naka Checking duty at National Highway No.36 in front of Laharijan Petrol Post, one Maruti Swift Dzire vehicle bearing Registration No. MH02CP-0942 was intercepted and thereafter, it was searched. During search of the said vehicle, some polythene packets containing powdery substance and tablets were found concealed in the sound box which was kept in the dickey of the said vehicle. It was suspected that the polythene packets contained Morphine. The total weight of which was found to be 1037.35 grams. The total weight of Sampex capsules, were found to be 24.78 grams. On receipt of the said FIR, Dillai P.S. Case No. 47/2023 was registered and investigation was initiated. After completion of the investigation, charge sheet was laid on 27.12.2023 and charges were framed against the present petitioner on 09.02.2024. 4. The learned counsel for the petitioner has submitted that there is a discrepancy in the quantity of contraband which is reported to be seized and which is produced before the Magistrate after preparation of the inventory. She submits that the quantity of Morphine seized weighed about 1037.35 grams at the place of seizure, whereas, when it was Page No.# 3/10 weighed before the Magistrate at the time of preparation of inventory, it was found to be weighed about 1014 grams. She also submits that there is also discrepancy in the weight of samples which were drawn before the Magistrate and the samples which were received by the Forensic Laboratory. 5. She further submits that this discrepancy would weigh against the prosecution case and there is every likelihood that the trial may end in acquittal due to such discrepancies. 6. She has further submitted that out of seven listed prosecution witnesses, only four have been examined and the independent witness has not implicated the present petitioner in the case. She has further submitted that though the recovery of the contraband was made from the Maruti Swift Dzire vehicle, however, there was no investigation as regards the ownership of the said vehicle, which according to her causes dent in the prosecution case and would ultimately, lead to acquittal of the petitioner. 7. She further submits that the petitioner has been languishing behind the bars since last 1 year 06 months and 19 days and the examination of prosecution evidence is yet to be completed. She submits that on the ground of prolonged incarceration itself, the petitioner is entitled to get bail. 8. In support of her submissions, she cites the following judgments:- a. “Chitta Biswas @ Subash Vs. The State of West Bengal Page No.# 4/10 Criminal Appeal No(s) 245 of 2020. (Decided on 07.02.2022);” b. “Nitish Adhikary@Bapan Vs. The State of West Bengal SLP(CRI) 5769/2022 (Decided on 01.08.2022);” c. “Kabirul Islam & Anr Vs. The State of West Bengal SLP(Crl) No 12773/2023. (Decided on 28.02.2024);” d. “Karnail Singh Vs. The State of Odisha Criminal Appeal No 2027/2022 arising out of SLP(Crl) No 9067/2022. (Decided 22.11.2022);” e. “Rased Mia Vs. The State of West Bengal SLP(Crl) No 14347/2023 (Decided on 24.01.2024);” f. “SLP(CRL) No 5068/2024 Dhirendra Kr. Choudhury Vs. The State of Assam (Decided on 14.08.2024);” g. “Zakirul Islam @ Md Zakirul Islam @Zakir Vs. The State of Assam.(Decided on 15/07/2024);” h. Bail Appln 2978/2024 “Bivesh Kumar Vs. The State of Assam. (Decided on 20.12.2024).” 9. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner on the Page No.# 5/10 ground that the quantity of contraband seized in this case is commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 comes into play. He also submits that all the witnesses, who have been examined till date, have implicated the present petitioner in the offence alleged against him in the case. He further submits that there are only seven listed witnesses, out of which only four witnesses have already been examined and only three are remaining, which would not take much time and therefore, considering the nature of offence involved in this case, he opposes the grant of bail to the petitioner. 10. I have considered the submissions made by the learned counsel for both the sides and have perused the materials available on records, including the scanned copy of the Special (NDPS) Case No. 04/2024, which was called for in connection with this case. 11. Though the learned counsel for the petitioner has raised the issues of discrepancy in the weight of the seized contraband at different stages of the investigation as well as she has also pointed out the discrepancy in the weight of the samples which was drawn before the Magistrate and which was received by the Forensic Laboratory, however, this Court is of the considered opinion that same are matter to be dealt with and considered during trial on the basis of the evidence adduced during trial. However, the fact remains that the petitioner has been languishing behind the bars for more than 1 year 06 months and till date only 4(four) of the listed prosecution witnesses have been examined. 12. The Supreme Court of India in “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352” has Page No.# 6/10 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”. 13. 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.” 14. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh”(supra), 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.” 15. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil” 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 Page No.# 7/10 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.” Page No.# 8/10 16. In view of the observations made by the Apex Court in the cases cited hereinabove, this Court is of the considered opinion that for whatsoever reasons, if there is long incarceration and there is inordinate delay in trial and if it is without any fault on the part of the petitioner, it would certainly infringe his Fundamental Rights guaranteed under Article 21 of the Constitution of India. 17. 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. 18. In the instant case, the petitioner has been languishing behind the bars for more than 1 year 06 months and only 4(four) prosecution witnesses have been examined. Therefore, in view of the facts and circumstances of this case and in view of the observations made by the Apex Court in rulings cited hereinabove, this Court is of considered opinion that in the instant case also, the facts and circumstances are such that the long incarceration of the petitioner has outweighed the embargo of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and thus, he is entitled to get bail on the ground of infringement of his fundamental right under Article 21 of the Constitution of India. 19. 19. In view of the above, the petitioner, namely, Chechham Hefajuddin, 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 and residing within the State of Assam) subject to the Page No.# 9/10 satisfaction of the learned Special Judge, (NDPS), Karbi Anglong, Diphu with the following conditions:- i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 04/2024, which is pending in the Court of the 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 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. 20. With the above observation, this bail application is accordingly, disposed of. Page No.# 10/10 JUDGE Comparing Assistant