Page No.# 1/7 GAHC010250092023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./4037/2023 SHOAIB AKHTAR S/O MD. ABDUL GANI R/O LILONG IPHAM P.S. LILONG, DIST. THOUBAL, MANIPUR. VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. S MUNIR, MS. L ISLAM Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 17.02.2025 1. Heard Mr. Y. S. Mannan, the learned counsel for the petitioner. Also heard Mr. K. K. Das, the learned Additional Public Prosecutor Page No.# 2/7 2. This is an application under Section 439 of the Code of Criminal Procedure, 1973 by the petitioner, namely, Shoaib Akhtar, who has been detained behind the bars since 20.02.2023 (for about 2 years) in connection with Special (NDPS) Case No. 33/2023 arising out of Khatkhati Police Station Case No. 15/2023 corresponding to G.R. No. 99/2023 under section 21(c)/29 of the NDPS Act, 1985. 3. The gist of the accusation in this case is that from 19.02.2023, one, S. Swargyari, SI of Khatkhati Police Station, had lodged an FIR before the Officer-In-Charge of Khatkhati Police Station, inter-alia alleging that, on receipt of an information through reliable sources, that large quantity of narcotic substance would be transported in a truck bearing registration No. NL01AD8728 from Manipur towards Bokajan, a naka checking was arranged at National Highway No. 39 near SBI, Khatkhati branch. 4. During naka checking, a truck bearing registration No. NL01AD8728 was intercepted and the petitioner and one another person, namely Md. Iqbal, were apprehended therefrom. 5. During the search of the said truck, 4.109 kgs of suspected heroin were recovered from the said vehicle. 6. On receipt of the said FIR, Khatkhati Police Station Case No. 15/2023 was registered and investigation was initiated. Ultimately, on completion of investigation, charge sheet was laid against the present petitioner under Section 21(c)/29 of the NDPS Act, 1985. 7. Mr. Y. S. Mannan, the learned counsel for the petitioner has submitted that though the petitioner has been detained behind the bar since for last Page No.# 3/7 about 2 years. However, till date, only 4 prosecution witnesses have been examined and the trial has been progressing at a very slow pace. 8. He submits that on the ground of prolonged incarceration, the petitioner is entitled to get bail. 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: - 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, Mr. K. K. Das, learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner on the ground that commercial quantity of contraband is involved in this case. Page No.# 4/7 11. Hence, the embargo of Section 37 of the NDPS Act, 1985 would be applicable to this case. He also submits that, already 4 witnesses have been examined and the remaining witnesses would be examined very soon and that this is not a fit case to grant of bail to the present petitioner. 12. I have considered the submissions made by the learned counsel for both the sides and have gone through the scanned copy of records of Special (NDPS) Case No. 33/2023, which was requisitioned in connection with this case. 13. The Supreme Court of India has observed in the case of “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352” 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 has observed in the case of “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” 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” (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 Page No.# 5/7 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 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.# 6/7 17. This Court is of 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 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 detained behind the bars for about than 2 years and the trial has not yet culminated and only 4 witnesses have been examined and the remaining witnesses would be examined very soon. 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 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, Shoaib Akhtar, 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 satisfaction of learned Single Page No.# 7/7 Judge (NDPS), Karbi Anglong with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 33/2023, which is pending in the Court of learned Single Judge (NDPS), Karbi Anglong; 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, 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. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant