Page No.# 1/6 GAHC010252952024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3806/2024 ABDUS SALAM S/O NASHER R/O VILL- BANGHUGI P.S. KALGACHIA SUB-DIVISION- BARPETA, DIST. BARPETA, ASSAM VERSUS THE UNION OF INDIA REP BY NARCOTICS CONTROL BUREAU. Advocate for the Petitioner : MR. N N JHA, MR. M UDDIN,MS M SAHOO Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 25.03.2025 Heard Mr. N.N. Jha, learned counsel for the petitioner. None appears for the NCB on call. Page No.# 2/6 2. By this second application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Abdus Salam, has prayed for bail in connection with NDPS Case No. 107/2020 (arising out of NCB Crime/Case No. 9/2020) under Section 22(c)/29 of NDPS Act, 1985, pending in the court of learned Additional Sessions No. 3, Kamrup(M), Guwahati. 3. The background of the case is that an FIR was lodged on 09.06.2020, based on information from a reliable source, alleging inter alia that one Bogimayum Saminur Rahman was found carrying a large quantity of Methamphetamine tablets at the Service Lane near Beharbari, Indian Oil Petrol Pump, NH-37, Guwahati. It was reported that he was intending to deliver the contraband to two individuals, Tanjur Ali and Abdus Salam, who were traveling in a Maruti Alto vehicle bearing registration number AS-19-G-4810. 4. The learned counsel for the petitioner submits that the accused/petitioner has been detained in judicial custody for almost 5(five) years since his arrest on 09.06.2020. It is also submitted that out of 11(eleven) witnesses, 5(five) witnesses have already been examined. None of the prosecution witnesses implicated the accused/petitioner to be involved in this case. As per allegation made by the NCB that the petitioner is the registered owner of the aforementioned vehicle in which the petitioner along with co-accused person came to receive the said contraband. It is further submitted that nothing was recovered from the conscious possession of the accused/petitioner. The alleged contraband was recovered from the co-accused Tanjur Ali. 5. The learned counsel for the accused/petitioner has also submitted that the petitioner has been suffering from Tuberculosis (T.B) and his health condition is Page No.# 3/6 deteriorating day by day due to lack of proper treatment inside the jail. Presently, the accused/petitioner has been admitted in LGB Chest Hospital, Guwahati. It is also submitted that one of the co-accused namely Bogimayum Samiur Rahman has already been granted bail by this Court. The prosecution has failed to complete the trial within the period of more than four years without showing any such explanation. Under such backdrop as well as the health condition of the accused/petitioner, the learned counsel has prayed that the accused/petitioner may be enlarged on bail. 6. In response, learned Standing counsel, NCB has filed an objection in granting bail to the accused/petitioner, stating that one of the co-accused, namely Bogimayum Samiur Rahman, admitted that he had received the seized Methamphetamine tablets from Shahrukh of Lilong, Thoubal, through Ali Bhai of Silchar, with instructions to deliver them to Tajnur Ali. In exchange, Bogimayum Samiur Rahman received Rs. 1,81,000/- from Tajnur Ali, which he was to deliver to Shahrukh of Lilong, Thoubal. This money was also seized by the NCB Guwahati team during the interception of the seized drugs. It is further submitted that in the statement of Abdus Salam @ A. Salam, he admitted that the Methamphetamine tablets seized by the NCB Guwahati team were delivered to him and Tajnur Ali by Bogimayum Samiur Rahman, and that the drugs belonged to Shahrukh of Lilong, Thoubal. Abdus Salam also stated that he paid Rs. 1,81,000/- to Bogimayum Samiur Rahman, which was likewise seized by the NCB Guwahati team during the interception of the drugs. 7. From the objection it also reveals that according to the letter received from the District Transport Officer, Bongaigaon, Assam, the accused/petitioner Abdus Salam @ A. Salam is the registered owner of the Maruti Alto car bearing Page No.# 4/6 Registration No. AS-19-G-4810, which was used by the accused/petitioner to receive a consignment of drugs seized in the present case. Out of 11 witnesses, only 5 have been examined so far. As such, bail may not be considered to the accused/petitioner at this stage of trial. 8. I have considered the submissions of the learned counsel for the petitioner. I have also perused the scanned copy of the trial court record including the objection filed by the NCB. I have also perused the medical report submitted by the Medical and Health Officer, LGB Chest Hospital, Guwahati which reveals that the petitioner is suffering from Tuberculosis. 9. It appears from the record that the petitioner was arrested on 09.06.2020 but the charge was framed after more than one year i.e. on 02.08.2021. Out of 11(eleven) witnesses, only 5(five) witnesses have been examined in this case till date. 10. It also transpires from the record that there was delay in examination of the witnesses. Though direction was given to the trial court to expedite the trial, however, within such five years, the trial court has failed to examine the cited 11(eleven) witnesses which is not apparently acceptable. 11. In the case of Rabi Prakash v. The State of Odisha, reported in 2023 LiveLaw (SC) 533, the Hon’ble Supreme Court has held as under- “……As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition i.e. formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at Page No.# 5/6 this stage when he has already spent more than three and a half years in custody. 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.” 12. In view of the aforesaid legal proposition as well as the health condition of the petitioner, this Court is inclined to grant bail to the petitioner. 13. Accordingly, the petitioner, named above, shall be released on bail in connection with NDPS Case No. 107/2020 (arising out of NCB Crime/Case No. 9/2020) under Section 22(c)/29 of NDPS Act, 1985, on furnishing of bail bond of Rs. 1,00,000/- (Rupees One Lakh) with two sureties of the like amount to the satisfaction of learned Additional Sessions No. 3, Kamrup(M), Guwahati, Assam. 14. The direction for bail is further subject to the conditions that the accused- petitioner: (a) shall not leave the territorial jurisdiction of learned Additional Sessions No. 3, Kamrup(M), Guwahati, Assam without prior written permission from him/her; (b) shall appear before the trial court each and every date fixed for hearing without fail; 15. Breach of any of the above conditions, shall tantamount to cancellation of bail. Page No.# 6/6 16. Nothing in this order shall be construed as an expression of opinion on the merits of the pending case. 17. In terms of the above, this bail application stands disposed of. JUDGE Comparing Assistant