Page No.# 1/7 GAHC010270962024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3952/2024 DEBA DEBBARMA S/O SUSHIL DEBBARMA R/O VILL- ST PARA, P.S. CHURAIBARI, DIST. NORTH TRIPURA, TRIPURA, PIN-799262 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. L R MAZUMDER, MR. A ISLAM Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 04.03.2025 1. Heard Mr. L. R. Mazumder, the learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor, appearing for the State of Assam. 2. This is an application under Section 483 of BNSS, 2023 by the Page No.# 2/7 petitioner namely, Deba Debbarma, who has been detained behind the bars since 24.10.2021 (for more than 3 years 4 months) in connection with Bazaricherra P.S. Case No. 198/2021, under Section 21(c)/29 of the NDPS Act, 1985. 3. The gist of the accusation in this case is that, on 24.10.2021, one K. Musahary, S.I. of Police of Kathaltoli Watch Post, had lodged an FIR before the Officer-In-Charge of Bazaricherra Police Station, inter-alia, alleging that, on that day, a naka checking was conducted at naka checking point of Churaibari Watch Post, at National Highway No. 8. 4. During the naka checking, a truck bearing Registration No. AS01HC9375 was intercepted and searched. 5. During the search operation, 413 kgs of suspected ganja was recovered from the said truck in 32 packets. The driver of the truck, namely Debo Debbarma, and the present petitioner, who is the helper of the truck, namely Saiman Debbarma were apprehended from the said truck. 6. On the basis of the FIR, Bazaricherra Police Station Case No. 198/2021 was registered and investigation was initiated. 7. Ultimately, on completion of the investigation, charge sheet bearing No. 168/2021, dated 28.12.2021, was laid against the present petitioner and one co-accused under Section 20(b)(ii) (C)/29 of the NDPS Act, 1985. 8. The charges were also framed against the present petitioner under the aforesaid provision of law on 05.07.2022. 9. The learned counsel for the petitioner has submitted that though the petitioner has been detained behind the bars for more than 3 years 4 months, however, and till date only 1 out of 7 prosecution witnesses have Page No.# 3/7 been examined and there is no likelihood of the culmination of the trial at the earliest. 10. The learned counsel for the petitioner therefore, submits that the one of the co-accused, namely, Saiman Debbarma has already been granted bail on the ground of prolong incarceration on 03.04.2024 in Bail Application No. 4360/2023 11. In support of his submission, the learned counsel for the petitioner has relied upon the following rulings. In all these cases, the accused person were charged of offenses relating to commercial quantity of contraband and they were granted bail mainly on the ground of prolonged incarceration: - i. Khurshid Ahamad @ Wasim Ahmad Vs the State of Bihar (SLP Criminal No. 16726/2023) (Incarceration for 1 year 10 months). ii. Kalpesh Gulab Bhai Khojaji Vs. the State of Gujarat (SLP Criminal No.2325/ 2023) (Incarceration for 1 year 5 months). iii. Jairam Vs. the State of Rajasthan (SLP Criminal No. 2479/2024) (Incarceration for 1 year 9 months). iv. Shariful Islam alias Sharif Vs. the State of West Bengal (Special Leave to Appeal (Criminal) No. 4173/2022) (Incarceration for 1 year 6 months). v. Anjan Nath Vs. for the State of Assam Special Leave to Appeal (Criminal No. 9860/2023) vi. Chitta Biswas alias Subhash Vs. the State of West Bengal (SLP Criminal No. 8823/2019 (Incarceration for 1 year 6 months). vii. Nitish Adhikari alias Bapan Vs. State of West Bengal SLP Criminal No. 5769/2022 (Incarceration for 1 year 7 months). viii. And a few other similar rulings. Page No.# 4/7 12. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner on the ground that the contraband seized in this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 13. He also submits that there are implicating materials against the present petitioner which do not justify the grant of bail to the present petitioner at this stage. 14. I have considered the submissions made by learned counsel for both the sides and have produced the materials available on record including the scanned copy of the Bazaricherra P.S. Case No. 198/2021. 15. The Supreme Court of India in “Mohd Muslim @ Hussain Vs. State (NCT 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”. 16. 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.” 17. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” reported in “ 2024 LiveLaw (SC) 416”, the Supreme Court of India has observed as follows: - Page No.# 5/7 “...........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.” 18. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation & Another” 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 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 Page No.# 6/7 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.” 19. In the instant case also, the petitioner has been detained behind the bars for more than 3 years 4 months, however, and till date only 1 out of 7 prosecution witnesses have been examined and there is no likelihood of culmination of the trial at the earliest. 20. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited hereinabove, for whatsoever reason if inordinate delay is caused and if without any fault on the part of the petitioner, he is kept under detention for a long period, it would certainly infringe his fundamental rights guaranteed under Article 21 of the Constitution of India. Under such circumstances, his constitutional rights guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37(1) (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he would be entitled to get bail on the ground of prolonged incarceration only. 21. Under the facts and circumstances of this case, in the considered opinion of this Court, the long incarceration of the petitioner has, in the instant case as well, outweighed the embargo of Section 37 of the NDPS Act, 1985. Therefore, he is entitled to get bail on the ground of the infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. 22. In view of the above, the petitioner, namely, Deba Debbarma, is allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties Page No.# 7/7 of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of learned Special Judge (Karimganj), Sribhumi with the following conditions: i. That the petitioner shall cooperate in the trial of Bazaricherra P.S. Case No. 198/2021, which is pending in the Court of learned Special Judge (Karimganj), Sribhumi; ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioner 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 petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court; v. That the petitioner 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 petitioner shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioner shall not commit any offence while on bail. 23. Violation of any of the above condition would be a good ground for the Trial Court to exercise its powers under Section 483(3) of the BNSS, 2023. 24. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant