Page No.# 1/10 GAHC010094422024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1364/2024 MD. ABDUL KALAM @ HASSAN @ MD. ABDULKALAM AND ANR. S/O MD. ABDUL MOZID R/O LILONG, HAOREIBI, P.S. LILONG, DIST. THOUBAN, MANIPUR. 2: MD. MUSTAKIM S/O LATE SALWAR RAHMAN R/O LILONG MAKHALAIKAI P.S. LILONG DIST. THOUBAL MANIPUR VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. Y S MANNAN, MS N DEKARAJA,MR. T HUSSAIN Advocate for the Respondent : PP, ASSAM, Linked Case : Bail Appln./3871/2024 MD DILBAR KHAN S/O LATE AZIZ KHAN R/O VILL- HARIPUR P.S. TARABARI (BAHARIHAT) DIST. BARPETA ASSAM Page No.# 2/10 VERSUS THE STATE OF ASSAM REP BY THE PP ASSAM ------------ Advocate for : MR. S KAUR Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 10.01.2025 1. As both these bail applications arise out of common police station case, namely the STF P.S. Case No. 4/2023 and it involves similar questions for consideration, hence, both the cases are proposed to be disposed of by this common bail order. 2. Heard Mr. Y. S. Mannan, learned counsel for the petitioners in Bail Application No. 1364/2024 and Ms. L. Banik, learned counsel for the petitioner in Bail Application No. 3871/2024. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State of Assam. 3. The Bail Application No. 1364/2024 has been filed under Section 439 of the Code of Criminal Procedure, 1973 by the petitioners, namely, 1. Md. Abdul Kamal @ Hassan @ Md. Abdul Kalam, 2. Md. Mustakim, who are detained behind the bars since 25.06.2023 (for more than 1 year and 6 months) in connection with NDPS Case No. 201/2023 arising out of STF P.S. Case No. 4/2023 under Section 21(c)/29(1) of the NDPS Act 1985, pending before the Page No.# 3/10 Court of learned Additional Session Judge No. 2, Kamrup(M), Guwahati. 4. The Bail Application No. 3871/2024 has been filed by the petitioner, namely, Md. Dilbar Khan @ Dilwar Khan, who is detained behind the bars since 26.06.2023 (for more than 1 year and 6 months) in connection with the aforementioned case. 5. The gist of accusation is that on 25.06.2023, one Vikram Basumatary, Inspector of Police (STF), had lodged an FIR before the Officer-in-charge of STF Police Station, Guwahati, inter alia, alleging that on receipt of secret information that a team of drug peddlers were moving in a Toyota Fortuner bearing Registration No. AS-01-DT-2976 from Guwahati towards Hajo, a team of Special Task Force led by the first informant was constituted and the aforesaid vehicle was chased. The Officer-in-charge of Hajo was directed to set up barricades to stop the speeding vehicle. However, the aforesaid vehicle rammed away the police vehicle of Hajo and tried to escape towards the Powa Mecca Hill. The chasing Police team found the aforesaid vehicle abandoned at about 150 ft. down the hillock.On search one of the pedllers, namely, Dilwar Khan (petitioner in Bail Application No. 3871/2024) was apprehended from nearby jungle while he was hiding there. During the search, 100 nos. of packets of soap boxes containing 1280 grams of suspected heroin was recovered from the said vehicle. Later on, the rented house of the apprehended accused Dilwar Khan, which is situated at Pragjyotish Nagar, Jalukbari was also raided. During the said raid, two more drug peddlers, namely, Md. Abdul Kamal and Md. Mustakim (petitioners in Bail Application No. 1364/2024) were apprehended along with 65 shop boxes containing about 765 grams of suspected heroin. 6. On receipt of the aforesaid FIR, the STF P.S. Case No. 4/2023 was Page No.# 4/10 registered under Section 21(c)/29(1) of the NDPS Act 1985 and investigation was initiated. 7. During the course of investigation, further 487 grams of suspected heroin were also recovered from the hidden chambers of the seized vehicle on 02.07.2023. Ultimately, on completion of the investigation, charge-sheet was laid against six number of accused persons including the above named petitioners under section 21(c)/29/25 of the NDPS Act, 1985. In the charge- sheet, three accused persons out of six charge sheeted accused persons were shown as absconders. 8. Mr. Y. S. Mannan, learned counsel for the petitioners in Bill Application No. 1364/2024 has submitted that the above named petitioners are not involved in the offence alleged in the FIR. They were not in any manner connected with the seizure of contraband from the vehicle bearing Registration No. AS-01-DT- 2876, he has also submitted that there has been violation of the sampling procedure of the seized contraband as sampling was not done as per the Narcotic Drugs and Psychotropic Substance (Seizure, Storage, Sampling and Disposal) Rules, 2022. He further submits that the petitioners are detained behind the bars for more than one year, six months and in view of the long incarceration of the above named petitioners, their fundamental rights guaranteed under Article 21 of the Constitution of India would override the embargo of Section 37 of the NDPS Act, 1985 and, hence, he prays for grant of bail to the aforementioned petitioners. 9. On the other hand, Ms. L. Banik, learned counsel for the petitioner in Bail Application No. 3871/2024 has submitted that nothing was recovered from the possession of the present petitioner as he was not found in the vehicle from Page No.# 5/10 which the seizure of contraband was made. She submits that the vehicle was found abandoned and the present petitioner was not found therein and there is no basis to link him to the vehicle which was seized in connection with this case. She further submits that though the charge-sheet mentions that the rented premises from which other two accused persons were nabbed belongs to the present petitioner, however, there is no material on record to show that we say the rented premises belong to the present petitioner. She also submits that the third recovery of the vehicle was made after a long period of eight days which itself vitiates the seizure. She has also submitted that this petitioner is also detained behind the bars for more than one year six months and the trial has not progressed and, therefore, on the ground of prolonged incarceration he is entitled to get bail. 10. The learned counsel for the petitioners have also submitted that there are 50 nos. of listed prosecution witnesses out of whom only two have been examined till now and considering the pace of the trial, it is unlikely to culminate soon and, therefore, on the ground of prolonged incarceration they have prayed for grant of bail to the above named petitioners. 11. Both the learned counsel have cited rulings of the Apex Court as well as this Court wherein the petitioners in those cases were granted bail on the ground of prolonged incarceration. 12. On the other hand, learned Additional Public Prosecutor has vehemently opposed the grant of bail to the above name petitioners on the ground that the quantity of contraband seized in the case is huge quantity and the embargo of Section 37 would be applicable in the instant case. He has also submitted that in this case there were three more accused persons who were declared Page No.# 6/10 as absconders during investigation and the case could not proceed as their attendance could not be procured and ultimately by order dated 10.05.2024 the case of the absconding accused persons were split up. He, therefore, submits that the delay in progress of the trial cannot be attributed to any lapse on the part of the prosecution side and, therefore, he opposes the grant of bail to the above name petitioner. 13. I have considered the submissions made by learned counsel for both the sides and have perused the materials available on record including the scanned copy of the case records of NDPS Case No. 201/2023 which was requisitioned in connection with the instant bail applications. 14. In the case of “Hussainara Khatoon and Ors. Vs. Home Secretary, State of Bihar” reported in (1980) 1 SCC 81, the Apex Court has observed that the procedure prescribed by law for depriving a person of his personal liberty cannot be regarded as reasonable, fair or just unless that procedure ensures a speedy trial for determination of guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21 of the Constitution of India. 15. Though, Section 37 of the NDPS Act, 1985 provides for stringent provision for grant of bail, however, Section 36 (1) of the NDPS Act, 1985 also mandates the Government to constitute as many special courts as necessary for the purpose of providing speedy trial of offences under the NDPS Act, 1985. If speedy trial is not provided to an incarcerated accused, it will certainly have a negative impact on the rigours of Section 37 of the NDPS Act, 1985. 16. The Supreme Court of India in “Mohd Muslim @ Hussain Vs. State (NCT Page No.# 7/10 of Delhi)” reported in “2023 SCC Online SC 352” has 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” 17. 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.” 18. 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.” 19. 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 starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments Page No.# 8/10 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.” 20. In the instant case, though, quantity of contraband involved in this case is of commercial quantity, however, as discussed herein before, all the three petitioners have been detained behind the bars for more than one year and six months and till date out of 50 listed witnesses only two have been examined. At this pace, it is unlikely that the trial would culminate soon. 21. Under such circumstances, the constitutional rights of the above named petitioners guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37(1)(b)(ii) of the NDPS Act, 1985 Page No.# 9/10 and they would be entitled to get bail on the ground of prolonged incarceration only. As the petitioners are held entitled to get bail on the ground of prolonged incarceration, the other grounds agitated by them are not required to be discussed for the purpose of grant of bail to them and accordingly not discussed in this order. 22. In view of the above, the above named petitioners, namely, Md. Abdul Kamal @ Hassan @ Md. Abdul Kalam, Md. Mustakim and Md. Dilbar Khan @ Dilwar Khan are allowed to go on bail of Rs.2,00,000/- (Rupees Two Lakh) each 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 the learned Additional Session Judge No. 2, Kamrup(M), Guwahati with the following conditions: i. That the petitioners shall cooperate in the trial of NDPS Case No. 201/2023, which is pending in the Court of learned Additional Session Judge No. 2, Kamrup(M), Guwahati; ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioners 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 petitioners; iv. That the petitioners shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, mobile Page No.# 10/10 number, and other contact details before the Trial Court; v. That the petitioners 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 petitioners shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioners shall not commit any offence while on bail. 23. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant