Page No.# 1/9 GAHC010249372024 2025:GAU-AS:389 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3668/2024 AMAD UDDIN TAPADAR S/O ABDULMALIK TAPADAR R/O JATKAPON, P.O. LALARCHAK P.S. KARIMGANJ, DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR S H SIKDAR, MD IMRAN,MR. S HAQUE,MD E A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 08.01.2025: Heard Mr. S. Hussain, learned counsel for the petitioner. Also heard Mr. K. Baishya, learned Addl. P.P. for the State. 2) Amad Uddin Tapadar, who is in custody since his arrest on 12.10.2022 in connection with Karimganj P.S. Case No. 588/2022 under Sections Page No.# 2/9 21(c), 25 and 29 of the NDPS Act, 1985 and thus, in custody for 819 days as on this date, is praying for bail by filing this application under section 483 of the BNSS, 2023. 3) The trial of said case is being tried as Special (NDPS) Case No. 155/2022 before the Court of learned Special Judge, Karimganj. 4) The prayer for bail by the petitioner has been rejected by this Court thrice earlier vide (i) order dated 10.02.2023, passed in Bail Appln. No. 302/2023; (ii) order dated 14.06.2023, passed in Bail Appln. No. 1901/2023 and (ii) order dated 05.01.2024, passed in Bail Appln. No. 4448/2023. Thus, this is the fourth bail application by the petitioner before this Court. 5) The learned counsel for the petitioner has submitted that except for the petitioner, all other co-accused are on bail. It was also submitted that till date effective trial has not begun and out of 20 (twenty) prosecution witnesses listed in the charge-sheet only 1 (eleven) witnesses have been examined so far. Therefore, it was submitted that there is no chance of an early culmination of trial. 6) The learned counsel for the petitioner has submitted that the Supreme Court of India had deprecated the long incarceration of under-trial prisoners for a long time and moreover, the co-ordinate Bench of this Court has also released under-trial prisoners considering the length of their judicial custody. 7) It has been submitted that no narcotic drugs was seized from the petitioner’s custody, but he has been arrayed as an accused only on the basis of the statement made by a co-accused. Accordingly, it has been submitted that the petitioner has movable and immovable properties and is Page No.# 3/9 ready and willing to abide by any stringent terms and conditions of bail. 8) The scanned copy of the relevant pages of the LCR was called for earlier in connection with B.A. No. 4448/2023. Therefore, the record of the said case was called for. Moreover, as the learned counsel for the petitioner had submitted that photocopy of certified copy of evidence of PW-2 to PW-11 has been annexed to the present bail application, there was no necessity to call for fresh scanned copies of voluminous records from the learned Trial Court. 9) The learned APP has opposed the prayer for bail on the ground that there was sufficient evidence available in the Trial Court Record (TCR for short) to prima facie show that the petitioner was the mastermind of the trafficking of seized contraband drugs having market value of approximately between Rs.60.00 crore and Rs.65.00 crore. It was also submitted that recovery of a sum of Rs.20,00,000/- (Rupees Twenty lakh only) from the house of the petitioner fortifies the prosecution case that the petitioner is a habitual dealer in narcotic drugs. 10) The TCR reveals that on intercepting a truck no. AS-11-BC-7975 on 11.10.2022, suspected heroin concealed in 764 soap boxes and weighing 9.477 kg. was recovered and seized in course of transportation from Chorgulla side in Assam towards Tripura. 11) It is too well settled that in course of deciding bail application, the Courts are not required to examine the evidence to see if it will lead to conviction, but as per the provisions of section 37(1)(b)(ii) of the NDPS Act, 1985, a duty is cast on the Court to record its satisfaction of twin conditions that there are reasonable grounds for believing that the petitioner is not guilty of the offence and that he is not likely to commit any offence while on bail. Therefore, Page No.# 4/9 the TCR has been examined with that purpose only. 12) It must be mentioned that in this bail application the petitioner has annexed copy of evidence of PW nos. 2 to11. The matter was listed on 06.01.2025, and on the prayer made by the learned APP, the scanned copy of the voluminous TCR was handed over to him for perusal and to address the Court. Thereupon, when the matter was being heard today, the learned APP has submitted that as the evidence of PW-1 was not available, he has obtained a copy of the evidence of PW-1, a copy of which has been handed over to the Court. 13) On a perusal of the evidence of PW-1, there is sufficient evidence to implicate the petitioner of being in contact with the other arrested co-accused persons by obtaining fake mobile SIM card and the petitioner is projected to be the owner and supplier of the seized contraband, which as per FSL report is heroin, having street value of Rs.60.00 to Rs.65.00 Crore and moreover, in the house search, a cash amount of Rs.20.00 lakh was recovered from the house of the petitioner. As per the charge-sheet, the petitioner is involved in trafficking narcotics illegally into the State of Assam through suppliers in the State of Mizoram and Tripura. The learned APP has also shown that from the evidence of PW-4 a prima facie projects that the petitioner is the owner of the truck where heroin was kept concealed and being transported. 14) Thus, in this bail application, while the petitioner has concealed the evidence of PW-1, the learned Addl. P.P. has been able to prima facie satisfy the Court that there are sufficient evidence materials in the charge-sheet to suggest that the petitioner is suspected to be involved in the transportation of commercial quantity of heroin into the State. Therefore, the Court is unable to hold that there are reasonable grounds for believing that the petitioner is not Page No.# 5/9 guilty of such offence and that he is not likely to commit any offence while on bail. 15) Therefore, the Court is now required to examine if due to length of 819 days custody will entitle the petitioner to bail. In a quest for answer, the Court will have to discuss the following cases, viz., (1) Narcotics Control Bureau v. Mohit Aggarwal, AIR 2022 SC 3444, (2) Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, (3) Satender Kumar Antil v. Central Bureau of Investigation, AIR 2022 SC 3386 16) In the case of Mohit Aggarwal (supra), the case was lodged under sections 8, 22 and 29 of the NDPS Act, 1985. In the said case, a 3-Judge Bench of the Supreme Court of India had observed as follows:- 11. It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub- section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail. 12. The expression “reasonable grounds” has come up for discussion in several rulings of this Court. In Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549 a decision rendered by a Three Judges Bench of this Court, it has been held thus:- 7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not Page No.# 6/9 guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [emphasis added] 13. The expression 'reasonable ground' came up for discussion in State of Kerala & Ors. v. Rajesh and others, (2020) 12 SCC 122 and this Court has observed as below: 13. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” [emphasis added] 14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. 15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has Page No.# 7/9 been charged with and he is unlikely to commit an offence under the Act while on bail. * * * 17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage. 17) It would also be relevant to quote herein below the provision of Section 479 of BNSS, 2023, which is nearly para material to section 436A of the CrPC (since repealed):- 479. Maximum period for which undertrial prisoner can be detained.- (1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail: Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one- third of the maximum period of imprisonment specified for such offence under that law: Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond: Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.— In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding Page No.# 8/9 caused by the accused shall be excluded. (2) Notwithstanding anything in sub-section (i), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court. (3) The Superintendent of jail, where the accused person is detained, on completion of one-half or one-third of the period mentioned in sub-section (i), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.” 18) The TCR reveals that by order dated 12.06.2023, the learned Trial Court had split up the case against an absconding accused. As per order dated 13.10.2023, with the appearance of 2 (two) other accused, the case was ready for trial. Accordingly, charges against the accused persons was framed vide order dated 27.10.2023. It may be mentioned that when the previous bail application, being B.A. 4448/2023 was rejected by order dated 05.01.2024, none of the prosecution witnesses were examined. However, in a relatively fast pace, 11 (eleven) prosecution witnesses have since been examined till date before the learned Trial Court. Therefore, it cannot be held that the accused persons did not contribute to the delay in commencement of trial. Therefore, in the light of Explanation (1) to Section 479 BNSS, 2023, the period upto 27.10.2023 has become liable to be excluded. Hence, it cannot be held there has been an inordinate delay in commencement of trial. 19) In the case of Satender Kumar Antil (supra), it has been held as follows:- “Where undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under-trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.” Page No.# 9/9 20) The case of Ahmadalieva Nodira (supra), is discussed in paragraph 12 of the case of Mohit Aggarwal (supra) and therefore, not discussed again to avoid repetition. 21) In the present case, the petitioner is charged of committing offence punishable, amongst others, under sections 21(c) of the NDPS Act. Under the said provision, the punishment prescribed is not less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than Rs.1.00 lakh but which may extend to Rs.2.00 lakh. Therefore, following the ratio laid down in the case of Satender Kumar Antil (supra), as well as the provision of Section 479 of the BNSS, 2023, as the petitioner is in judicial custody for 817 days (nearly 2 years 3 months), has not become entitled to be released on bail, notwithstanding that some other co-accused might have been released on bail. 22) In the orders granting bail to other co-accused persons, the judgment of the Supreme Court of India in the case of (i) Satender Kumar Antil (supra), (ii) Ahmadalieva Nodira (supra), and (iii) Mohit Aggarwal (supra) are not found to have not been discussed and distinguished. Therefore, it appears that the said three cases were not placed before the concerned Court, dealing with prayer for bail of other co-accused persons. 23) Thus, the petitioner is not found to have become entitled to bail at this stage. 24) Nothing contained in this order shall prejudice either side during trial. JUDGE Comparing Assistant