Page No.# 1/6 GAHC010271762024 2025:GAU-AS:1747 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3938/2024 AJIT ORANG S/O RAMESH ORANG R/O VILL- SANKARPURGAON P.O.AND P.S. URIAMGHAT DIST. GOLAGHAT, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. R HAZARIKA, MR. I K BURAGOHAIN,MR. C CHAKRAVARTY Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 19.02.2025 Heard Mr. R. Hazarika, learned counsel for the petitioner and Mr. K. K. Parashar, learned Additional Public Prosecutor, Assam for the State. 2. The petitioner, namely, Ajit Orang, son of Ramesh Orang, resident of Village- Sankarpurgaon, Police Station-Uriamghat, District-Golaghat has filed this application under Page No.# 2/6 Section 483 BNSS, 2023, praying for his bail in Special (NDPS) Case No. 66/2022, arising out of Mariani Police Station Case No. 97/2022, in which, he was arrested on 25.02.2022 and is in custody since then, for about 2 years 9 months. 3. As per the FIR dated 25.05.2022 lodged before Mariani Police Station, the case is that on 24.05.2022, on the basis of source information, a raid was conducted by the then Deputy Superintendent of Police cum SDPO, Titabor along with the Inspector and Officer-in-Charge of Titabor Police Station as well as the Sub-Inspector of Mariani Police Station along with other police personnel at Line No. 11 Heeleakah Tea Estate. During such raid, in presence of witnesses, Police recovered two packets of suspected Heroin under the console box of a white coloured Ertiga ZDI vehicle bearing registration No. AS-04-K-0610. On being weighed, it was found that the bags contained 10.30 grams and 11.50 grams of suspected Heroin respectively. Along with the two packets of suspected Heroin, noted above, police also recovered one Mobile handset, 7 (seven) Nos. of ATM Cards, one PAN Card and one Aadhaar Card from the petitioner in presence of the witnesses, who was apprehended and was brought to the Mariani Police Station along with said Ertiga ZDI white coloured vehicle. 4. As the information was relating to huge quantity of trafficking of Heroin by the said vehicle and only two packets, each containing 10.30 grams and 11.50 grams, respectively, were recovered so far; therefore, on 25.05.2022 the said white coloured Ertiga ZDI vehicle of the petitioner was searched again in presence of witnesses, with the assistance of a car mechanic. During such search of said Ertiga ZDI vehicle of the petitioner on 25.05.2022, 36 (thirty-six) numbers of soap case containers containing 457.76 grams of suspected Heroin were recovered from a concealed chamber inside the back light of the said Ertiga ZDI vehicle bearing registration No. AS-04-K-0610, which were also seized and sealed following the due procedure. 5. While making the said raid in Line No. 11 Heeleakah Tea Estate on 24.05.2022, along with the petitioner, another person, namely, Rameswar Orang @ Rame was also apprehended, but during search of said Ertiga ZDI vehicle involved in the case, he managed to flee away from the scene and the petitioner was left alone, who was accordingly apprehended by the Police. 6. After making necessary inventory, the seized substances were forwarded to the FSL for its examination and report and the FSL report dated 22.07.2022 affirmed the said seized substances to be Heroin of 72.95%. Page No.# 3/6 7. Mr. Hazarika, learned counsel for the petitioner stated that the petitioner was arrested on 25.05.2022 and that since September 2024, the Trial of the case did not progress after recording of evidence of sixteen numbers of prosecution witnesses. As such Mr. Hazarika, learned counsel submitted that considering the period of his detention since 25.05.2022, the petitioner should be considered for his bail in said Special (NDPS) Case No. 66/2022. 8. In support of his argument, Mr. Hazarika, learned counsel on behalf of the accused petitioner relied on the decisions of the Hon’ble Supreme Court in the case of Mohd. Muslim @ Hussain Vs. State (NCT of Delhi) decided on 28.03.2023, Rabi Prakash Vs. The State of Odisha decided on 13.07.2023, Sangram Sadashiv Suryavanshi Vs. State of Maharashtra decided on 25.11.2024 as well as the decision of a Co-ordinate Bench of this Court in the case of Khangembam Mangi Singh and Another Vs. State of Assam in Bail Application No. 3332/2023 decided on 10.01.2024. 9. By placing the statements of some of the prosecution witnesses so far recorded, Mr. Hazarika, learned counsel for the petitioner submitted that there are contradictions with regard to the facts placed by the prosecution witnesses and for that reason also, the petitioner is entitled for his bail in the case. 10. By order dated 20.12.2024, the Court called for the records of said Special (NDPS) Case No. 66/2022 as well as the records of Mariani Police Station Case No. 97/2022. 11. On perusal of the records of the case it is seen that the charge-sheet of the case contains 21 Nos. of prosecution witnesses and out of that the prosecution has adduced evidence of 16 Nos. of its witnesses as on 13.09.2024 and they were cross examined by the defence. 12. Though 24.01.2025 was the last date fixed for recording of evidence of the remaining prosecution witnesses, the concerned Trial Court did not sit on that day and the matter is now fixed on 07.03.2025 for recording of evidence of the remaining prosecution witnesses. 13. From the charge-sheet of the case, it is seen that in presence of the witnesses, the concerned car mechanic on 25.04.2022 opened the said Ertiga ZDI white coloured vehicle of the petitioner and recovered 36 Nos. of soap cases containing Heroin from the concealed chamber situated inside the back light of the said vehicle in presence of the Investigating Officer of the case and other police personnel who led the police team in conducting the raid at Heeleakah Tea Estate Line No. 11 on the previous night. Page No.# 4/6 14. Though Mr. Hazarika, learned counsel for the petitioner placed the evidence of a few seizure witnesses along with VDP President, so as to prove that there was no proper seizing of the NDPS items recovered on the date of the incident on 24.05.2022, however, on perusal of the evidence of other prosecution witnesses so far recorded by the Trial Court, it is seen that there are independent witnesses who deposed before the Trial Court pertaining to recovery of 2 Nos. of soap cases from the steering board of the vehicle, while it was searched in presence of witnesses and that the other co-accused ran away from the scene. The said witness, in his cross examination also denied the contention of the defence that the materials found inside the soap cases were not shown to him by Police and that while the raid was made on the date of the incident, it was quite late in the evening and that his signature was not taken on a blank paper. 15. Law is settled that when the matter relates to a serious offence and once the Trial commences and the prosecution starts examining its witnesses, the Court, be it a Trial Court or the High Court, should be loath in entertaining the bail application of an accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that the right of the accused to have a speedy trial has been infringed. Only in such circumstances, discretion can be considered and the High Court has the discretion to grant bail. The probability or the improbability of the prosecution version has to be judged based on the materials available to the Court at the time, when bail is considered and not on the basis of discrepancies. [X Vs. State of Rajasthan, reported in (2024) INSC 909 = 2024 STPL 12498 SC] 16. In the case of Gobarbhai Naranbhai Singala & Another Vs. State of Gujarat & Others, reported in (2008) 3 SCC 775, the Hon’ble Apex Court have held that the period of incarceration by itself would not entitle the accused to be enlarged on bail, which was subsequently relied in the case of Ram Govind Upadhyay Vs. Sudarshan Singh & Others, decided on 18.03.2002. 17. As been held by the Hon’ble Supreme Court that Section 439 of the Cr.P.C./483 of the B.N.S.S., 2023 confers very wide powers on the High Court and the Court of Sessions regarding bail and while granting bail, both the Courts are guided by the same considerations as other Courts, where the gravity of the crime, the character of the evidence, position and status of the Page No.# 5/6 accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses or obstructing the course of justice by the accused and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario. Therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The Court has to only opine as to whether there is prima facie case against the accused and the Court must not undertake meticulous examination of the evidence collected by the police and comment on the same, as such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. If the Court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of granting bail to the accused, the High Court or the Sessions Court are justified in cancelling the bail. 18. From the records of the case, it is seen that one of the prime accused of the case fled away from the scene on 24.05.2022 and he was charge-sheeted in the case. 19. After filing of the charge-sheet in the case on 29.09.2022, cognizance of the offence under Sections 21(C)/29 of the NDPS Act, 1985 was taken by the Court on 02.11.2022 and summons were issued against both the accused persons, including the petitioner and the absconder accused. In spite of issuance of Non-Bailable Warrant of Arrest (NBWA), the said absconder accused did not appear before the Trial Court and as such, by order dated 22.11.2022, the case was split up against the absconding accused Rameswar Orang @ Rame from the present case. 20. It is seen that said Special (NDPS) Case No. 66/2022, pending before the Court of the learned Special Judge (NDPS) cum Sessions Judge, Jorhat is in a crucial stage, as the Trial Court is yet to record the testimony of the material witnesses, including that of the Investigating Officer of the case as well as of the other Senior Police personnel, who were present during the said raid that was conducted on 24.05.2022 as well as during the search made on the vehicle involved in the case on 25.05.2022 in presence of witnesses. 21. Though the trial commenced way back in November 2022 and as of now, 16 Nos. of prosecution witnesses have so far been recorded and the next date of recording of evidence of prosecution witnesses is 07.03.2025, the Court is of the opinion that for ensuring fair trial, witnesses must be in a position to freely depose without fear; like the co-accused who fled from the scene and did not appear during the trial, for which, the case had to be split up; because of Page No.# 6/6 recovery of huge quantity of Heroin from the white coloured Ertiga ZDI vehicle that was driven by the petitioner. If at this crucial stage, the detention of the petitioner since 25.05.2022 is considered for his bail, there is all possibility of hampering the Trial of the case. 22. For the reasons above, the Court is of the opinion that the petitioner is not entitled for his bail in said Special (NDPS) Case No. 66/2022, arising out of Mariani Police Station Case No. 97/2022, presently pending before the Court of the learned Special Judge (NDPS) cum Sessions Judge, Jorhat. 23. Accordingly, this bail application of the petitioner, namely, Ajit Orang, son of Ramesh Orang, in said Special (NDPS) Case No. 66/2022, arising out of Mariani Police Station Case No. 97/2022, pending before the Court of learned Special Judge (NDPS) -cum- Sessions Judge, Jorhat stands rejected, at this stage. JUDGE Comparing Assistant