Page No.# 1/9 GAHC010269842024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3951/2024 RAHUL KUMAR SINGH S/O LATE RAM BIHARI SINGH R/O VILL- ISWARPURA P.O. AND P.S. SAHPUR DIST. BHOJPUR, BIHAR, PIN-802112 VERSUS THE STATE OF ASSAM RPE BY THE PP, ASSAM Advocate for the Petitioner : MR. S RAHMAN, MR. S U AHMED,MR. K H SAIKIA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 28.02.2025 Heard Mr. S. Rahman, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Addl. P.P for the State. Page No.# 2/9 2. By filing this second bail application u/s 483 of BNSS, 2023, the petitioner has prayed for granting bail in connection with NDPS Case No.57/2024 [arising out of Guwahati GRPS Case No.222/23] u/s 20 (b) (ii) (C) of NDPS Act, pending in the Court of learned Additional District and Sessions Judge No.2, Kamrup (M), Guwahati. 3. The matter relates to recovery of commercial quantity of ganja from the possession of the accused petitioner. 4. The learned counsel for the petitioner has stressed his argument on prolonged incarceration that the accused petitioner has been languishing in judicial custody for more than one year since his arrest on 31.10.2023 and no witness is examined till date. 5. The first bail application filed by the petitioner was rejected by this Court with a direction to expedite the trial of the case and the order was passed on 20.09.2024. In spite of such direction, no witness is examined in the case. It certainly has violated the fundamental rights of the petitioner guaranteed under Article 21 of the Constitution of India. As such, the petitioner is entitled to get bail on the ground of prolonged incarceration. In support of his submission, learned counsel has placed reliance on a bail application of this Court vide (2024) 5 GLT 557 [Gautam Saha and Anr. Vs. State of Assam]. 6. The learned counsel for the petitioner has pointed out the case laws cited in the bail application of Gautam Saha (supra) wherein in Nitesh Adhikari Vs. State of West Bengal, the Hon’ble Apex Court granted bail to the accused facing accusation u/s 21(c) of the NDPS Act on the ground of incarceration of 1 year 7 months. Page No.# 3/9 Similarly, in Md. Salman Hanif Sheikh Vs. State of Gujarat, the accused was granted bail by the Apex Court on the ground of incarceration of 2 years. In Chitta Biswas @ Subha Vs. State of West Bengal, Hon’ble Apex Court granted bail to the accused who was facing a trial for possessing of commercial quantity of contraband on the ground of prolonged incarceration of 1 year 6 months. 7. Per contra, learned Addl. P.P has submitted that commercial quantity of ganja was recovered from the conscious possession of the accused petitioner, as such Section 37 of the NDPS Act will come into play. It is true that no witness is examined in this case, however, which cannot be a ground to consider bail prayer of the petitioner without complying the provision of Section 37 which is mandatory in nature. Accordingly, learned Addl. P.P has prayed for dismissal of the bail application. 8. Having heard the learned counsel for the parties and on perusal of the trial court record, it reveals that though the accused petitioner was arrested on 30.10.2023, charge-sheet has been laid on 17.01.2024 within the stipulated period. Charge was framed on 27.03.2024 and the case is at the stage of examination of witnesses. 9. In Gurbaksh Singh Sibbia and others Vs. State of Punjab, (1980) 2 SCC 565, the Hon’ble Supreme Court as held that – “It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Page No.# 4/9 Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.” 10. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav, (2005) 2 SCC 42, the Hon’ble Supreme Court has observed as follows - “18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law….” 11. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in its schedule, and S.2 (xxiii-a) defines a small quantity as the quantity lesser than the quantity specified in the schedule. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. When the substance falls under commercial quantity statute mandates minimum sentence of ten years of imprisonment and a minimum fine of INR One Lac, and bail is subject to the Page No.# 5/9 riders mandated in S.37 of NDPS Act. 12. In the present case, as per the contentions of the State, the quantity of substance seized is commercial quantity. Given the legislative mandate of S.37 of NDPS Act, the Court can release a person, accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after passing its rigors. Section 37 of the Act is extracted as under - “37. Offences to be cognizable and non-bailable. (1) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause(b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for Page No.# 6/9 the time being in force, on granting of bail." 13. Reading of Section 37(1)(b)(ii) mandates that two conditions are to be satisfied before a person/accused of possessing a commercial quantity of drugs or psychotropic substance, is to be released on bail. 14. The first condition is to provide an opportunity to the Public Prosecutor and clear his stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence and that during bail he is not likely to commit any offence. If either of these two conditions is not fulfilled, the ban on granting bail operates. 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. Be that as it may, if such a finding is arrived at by the Court, it is equivalent to giving a certificate of discharge to the accused. Even on fulfilling one of the conditions, the reasonable grounds for believing that during the bail period, the accused is not guilty of such an offence, the Court still cannot give a finding or assurance that the accused is not likely to commit any such crime. Thus, the grant of bail or denial of bail for possessing commercial quantity would depend on facts of each case. 15. Some Judicial precedents on S. 37 of NDPS ACT - a) In Union of India v. Merajuddin, (1999) 6 SCC 43, Hon’ble Supreme Court while cancelling the bail, observed as follows- “The High Court appears to have completely ignored the mandate of Sec. 37 of the Narcotic Drugs and Psychotropic Substances Act while granting him bail. The Page No.# 7/9 High Court overlooked the prescribed procedure." b) In Satpal Singh v. State of Punjab, (2018) 13 SCC 813, it was held that since the quantity involved was commercial, as such High Court could not have and should not have passed the order under sections 438 or 439 CrPC, without reference to Section 37 of the NDPS Act. c) In Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738, the Hon’ble Supreme Court has observed as follows- “7. ....Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are :- (1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail. Page No.# 8/9 8. There is no such consideration with regard to the mandatory requirements, while releasing the respondents on bail. 9. Hence, we are satisfied that the matter needs to be considered afresh by the High Court. The impugned order is set aside and the matter is remitted to the High Court for fresh consideration. It will be open to the parties to take all available contentions before the High Court.” 16. In view of the aforesaid legal proposition and from the summary of the law relating to rigors of Section 37 of NDPS Act, while granting bail involving commercial quantities in the NDPS Act, the fundamental principles emerged is that – a) In case, the Court proposes to grant bail, apart from granting opportunity to the public prosecutor, the twin conditions which have relevance on the Court’s satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and further that he is not likely to commit an offence under the said Act, while on bail. 17. Admittedly, in the case in hand, no witness is examined till date. Hence, at this stage, this Court is not in a position to pass any comment on the twin conditions imposed under Section 37 that there are reasonable grounds for believing that the accused petitioner is not guilty of the alleged offence and further that he is not likely to commit any offence while on bail. Page No.# 9/9 18. Keeping in view the nature of allegations at this stage, no case for bail is made out in favour of the petitioner. Hence, the bail application stands dismissed. However, the Trial Court is directed to take much more initiative to start the process of trial. Order sheet shows passing of casual order by the Trial Court without taking such endeavour to dispose of the matter early. 19. However, any observation made hereinabove is neither an expression of opinion on the merits of the case. 20. Accordingly, the bail application is disposed of. JUDGE Comparing Assistant