Page No.# 1/6 GAHC010268272024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3878/2024 SAIP UDDIN S/O LATE ABDUL MAJID, R/O VILL-NORTH SAKAIBARI BARUAKANDI, CHANDRAPUR, P.S. DHARMANAGAR, DIST. WEST TRIPURA, TRIPURA VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. L R MAZUMDER, MR E HUSSAIN,MR. A ISLAM Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 21.02.2025 Heard Mr. L.R. Mazumder, learned counsel for the accused and also heard Mr. M.P. Goswami, learned Additional Public Prosecutor, Assam, appearing for the State respondent. Page No.# 2/6 2. This application, under section 483 of the BNSS, 2023, is preferred by accused, namely, Saip Uddin, who has been languishing in jail hazoot since 07.03.2022, in connection with Patharkandi P.S. Case No.69/2022, under Section 21(c)/25/29 of the NDPS Act, for grant of bail. 3. Notably, the above noted case has been registered on the basis of an FIR lodged by one Rajpratap Singha, S.I. of Patharkandi P.S. on 06.03.2022. 4. The gravamen of allegation, in the FIR, dated 06.03.2022, is that acting on a tip off on 06.03.2022, at about 11:00 a.m., at NH-08 Bypass, under Patharkandi P.S. the informant had intercepted one vehicle, bearing Registration No.TR-05D-0625, and found two persons, namely, Saip Uddin and Taj Uddin and after conducting search he had recovered 297 gm of heroin from their possession. 5. Mr. Mazumder, learned counsel for the accused submits that this is the third bail application and the first one, being B.A. No. 211/2023, was rejected by this court, vide order dated 09.10.2023 and the second one, being B.A. No. 1475/2024, which was also rejected by this court, vide order dated 28.06.2024. Mr. Mazumdar further submits that the accused was arrested on 06.03.2022, and since then he has been languishing in jail hazot for almost three years. Mr. Mazumdar also submits that though the quantity of contraband substance recovered from the possession of the accused is 297 grm of herion, yet, the FSL report indicates that the percentage of heroine in the sample was found to be 86.92 and as such it may be less than the commercial quantity. Further, Mr. Mazumdar submits that after investigation, police submitted charge-sheet against the present accused, along with Taj Uddin and the learned Court below had also framed Page No.# 3/6 charge against accused Saip Uddin and Taj Uddin, under Section 21(c) of the NDPS Act and till date only one witnesses has been examined by the prosecution side and there is no immediate prospect of conclusion of trial. Mr. Mazumdar also referred three decisions of Hon’ble Supreme Court in (i) Mohammad Salman Hanif Shaikh vs. The State of Gujarat (Special Leave to Appeal (Crl.) No(s). 5530/2022; (ii) Sariful Islam @ Sarif vs. The State of West Bengal in Special Leave to Appeal (Crl.) (arising out of impugned final judgment and order dated 22.03.2022 in CRM (NDPS) No. 299/2022 passed by the High Court at Calcutta); (iii) Rabi Prakash vs. The State of Odisa (Special Leave to Appeal (Crl.) No(s).4169/2023; to contend that the accused is behind the bar for more than two years and there is unlikelihood of completion of trial in near future and therefore, it is contended to allow this petition. 6. On the other hand, Mr. P.N. Goswami, learned Additional Public Prosecutor, Assam, submits that the quantity of contraband substance recovered from the possession of the accused is of commercial quantity and therefore, the accused has to satisfy twin requirement of Section 37 of the NDPS Act which the accused has failed to satisfy. Further, Mr. Goswami submits that trial is going on and the learned trial court had examined one witness and if the accused is enlarged on bail at this stage then it may cause delay is disposal of the case. And therefore, Mr. Goswami has contended to dismiss the petition. 7. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on Page No.# 4/6 record and also perused the case laws referred by Mr. Mazumder, learned counsel for the accused and also perused the scanned copy of the record received from the learned Court below. 8. It is not in dispute that the accused was arrested on 06.03.2022, and since then he has been languishing in jail hazoot for more than two years. It also appears that the learned trial Court has framed charge under Section 21(c) of the NDPS Act. And till date one witness has been examined. 9. It also appears that the quantity of contraband substance, recovered from the possession of the accused, is of commercial quantity i.e. 297 grm and as such the accused has to satisfy twin requirement of Section 37 of the NDPS Act. But, it appears that the accused has failed to satisfy the twin requirement of Section 37 NDPS Act. 10. Though Mr. Mazumder, learned counsel for the accused submits that the FSL report indicates that the percentage of heroine in the sample was found to be 86.92 and as such it may be less than the commercial quantity, yet, said submission left this court unimpressed as there is clear indication that the total quantity is 297 gm. 11. It is a fact that there is some delay in disposal of the case. But it appears that trial is going on. And the delay so occurred cannot be termed as inordinate delay so as to impair the right to speedy trial guaranteed by Article 21 of the Constitution of India. 12. I have also gone through the case laws referred by Mr. Mazumdar, the learned counsel for the accused and I find that the said cases proceeds on their own facts which are different from the case in hand. 13. it is to be noted here that Hon’ble Supreme Court in the case of Page No.# 5/6 Union of India vs. Ajay Kumar Singh @ Pappu, in Criminal Appeal No. 952 of 2023 [Arising out of SLP (CRL.) No.2351 of 2023] and also in the case of Narcotics Control Bureau vs. Kashif, in Criminal Appeal No. 5544 of 2024 [arising out of Special Leave Petition (Crl.) No. 12120 of 2024] held that in a case where commercial quantity of contraband substance is involved the accused cannot be enlarged on bail unless the twin conditions laid in Section 37 NDPS Act is satisfied with. 14. It is to be noted here that in the case of Ajay Kumar Singh @ Pappu (Supra), the Hon’ble Supreme Court has held as under:- “In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.” 15. It is also to be note here that in the case of Kashif (Supra), Hon’ble Supreme Court has held as under: “39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 Page No.# 6/6 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. ………………………………………………...” 16. Keeping the aforesaid principles in mind and examining the facts and circumstances herein this case in the light of the same, I find that the privilege of bail cannot be granted to the present accused. Accordingly, the bail application stands dismissed. 17. However, the learned trial court is requested to expedite the trial and conclude the same as soon as practicable, without being influenced by any of the observations made herein above, which are made only to dispose of the present application. JUDGE Comparing Assistant