Page No.# 1/6 GAHC030001262025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./6/2025 Sh. P.C. Lalrinmawia Kolasib Diakkawn, Kolasib District, Mizoram VERSUS The State of Mizoram Aizawl2:The Officer In-Charge Excise and Narcotice Department Aizawl 3:S.I. Zothantluangi Chen (Complainant) Excise and Narcotices Department . Aizaw Advocate for the Petitioner : Mr. S. Vanlalhriata Advocate for the Respondent : P.P./Addl.PP, Mizoram ORDER BEFORE HON’BLE MRS. JUSTICE YARENJUNGLA LONGKUMER 25.03.2025 Heard Mr. S. Vanlalhriata, learned counsel for the petitioner and Ms. Vanneihsiami, learned Addl. Public Prosecutor for the State respondent. Page No.# 2/6 2. This is an application u/s 483 of the BNSS 2023 r/w section 37 of the ND&PS Act, 1985 praying for enlarging the accused/petitioner on bail pending trial in SR (Ex) No. 49/2024 ref- Excise Case No. EX.N-146/2023 u/s 21(c) of the ND&PS Act, 1985. The case of the petitioner/accused is that on 27.05.2023, 121 soap cases containing 1537 grams of heroin which was kept and concealed inside mattress and 8 parcel box were recovered in connection with the seizure of 1537 of heroin. Vanrammawii and Vanlalhriata were arrested on the same date and Excise Case No. EX.N-146/2023 was registered for the offence in 21(c) of the ND&PS Act. During investigation and on interrogation of the accused person and basing on their statements, Ruthi Lalthuami and John C. Lalhmangaiha were arrested on 02.06.2023 at Vairengte. Based on the statements of the arrested persons 2112 grams of heroin in 165 soap cases was seized on 06.06.2023 from inside the residence of accused John C. Lalhmangaiha. After seizure was affected based on the statements of the accused Ruthi Lalthuami and John C. Lalhmangaiha, another 354 grams of heroin in 27 soap cases was recovered and seized under a bush near the present petitioner/accused house on 08.06.2023 and the son of the present accused/petitioner was arrested in this connection on 08.06.2023, Mr. Borris Lalherliana s/o petitioner/accused stated to the I.O that the seized 354 grams of heroin was concealed by him on the instruction of his father. Therefore, the present petitioner/accused was arrested on 09.06.2023 when he voluntarily surrendered before the Officer-In- Charge of the Excise & Narcotics, Aizawl. It is stated that the charge sheet in the present case was filed on 21.02.2024 and charge was framed against the present accused/petitioner on 03.03.2025. It is the contention of the learned counsel for the petitioner/accused that he has now been in custody for a period of 1 year & 9 months till the time of the filing Page No.# 3/6 of this bail application. The prosecution has furnished a list of 18 witnesses, but till date, no prosecution witnesses have been examined and therefore, the trial is at a preliminary stage and there is no likelihood that it would be completed soon in the near future. It is also the contention of the learned counsel for the petitioner/accused that the reason for delay of the trial cannot be attributed to the petitioner as he is in custody since he was arrested on 09.06.2023. He has also submitted that prolonged incarceration militates against the most Fundamental Right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must overwrite the statutory embargo created u/s 37 of the ND & PS Act. It is further submitted that the petitioner is a permanent residence of Diakkawn, Kolasib and therefore, there is no reason for him to abscond even if he is released on bail. The learned counsel for the petitioner/accused has referred to the judgments of the Hon’ble Supreme Court in 2023 LIVE LAW (SC 533) in the case of Rabi Prakash Vs State of Odisha and also 2022 SCC online SC 2068 in the case of Nitish Adhikari Alias Bapan Vs State of West Bengal. Relying on the above judgments, the learned counsel for the petitioner/accused states that the Hon’ble Supreme Court has laid down in the above stated cases that prolonged incarceration generally militates against the most precious Fundamental Right under Article 21 of the Constitution and in such situations, the conditional liberty must overwrite the statutory embargo created u/s 37 of the ND&PS Act. The Supreme Court in the case of Nitish Adhikari Alias Bapan Vs State of West Bengal has also stated that the petitioner in the instant case had undergone custody for a period of 1 year 7 months and the trial was at a preliminary stage as only 1 witness had been examined. Moreover, the petitioner did not have any criminal antecedents. Therefore, the Hon’ble Apex Court had expressed the view Page No.# 4/6 that the period taking under consideration, the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any view on the merit of the case, the court had allowed bail to the petitioner. The learned counsel for the accused/petitioner also refers to an Order dated 18.07.2024 of a Co-ordinate Bench of this Court in Bail Application No. 610 of 2024 at the Principal Seat where the court was faced with a similar situation, the accused having undergone incarceration for 1 year 6 months and in that case also out of 9 prosecution witnesses only 1 had been examined and therefore, the court allowed the bail application of the petitioner/accused who was languishing in jail in a case where he was charged u/s 21 (c) of the ND&PS Act, 1985. Accordingly, learned counsel for the accused/petitioner prays that he being similarly situated may be allowed to go on bail in the present case. 3. Ms. Vanneihsiami, learned Addl. Public Prosecutor appearing for the State respondents has vehemently objected to the arguments put forward by the petitioner/accused. It is stated that as per the records, the petitioner/accused was in conscious possession of the contraband substance and she has drawn the attention of this Court to the statement of the accused during investigation at page 56 of the present petition wherein the petitioner/accused had clearly admitted that he was selling heroin since 2021 and that he used to receive the contraband substance from Vanlalkungpuii, he also submitted in his statement that the heroin 27 hawng i.e. 354 grams which was seized by Excise & Narcotics on 09.06.2023 from the possession of his son was obtained by him from Vanlalkungpuii. He stated that his son had never involved in dealing of heroin and he was hiding it as per his instructions. That the 11 hawng of heroin concealed inside egg parcel box seized by Excise & Narcotics on 27.05.2023 was sent by Vanlalkungpuii and was to be delivered to him. The learned Addl. Public Page No.# 5/6 Prosecutor submits that the rigors of section 37 ND&PS Act are clearly applicable in the present case and if released, the accused/petitioner is likely to indulge in the offence again and it is also pertinent that the main supplier Vanlalkungpuii is absconding and is yet to be apprehended. And therefore, there is ample apprehension that the accused may indulge in the offence again if released on bail. 4. This Court has considered the submissions of the parties and has also perused the judgments of the Hon’ble Supreme Court as produced by the counsel for the petitioner/accused. In the present case, the records show that the petitioner was arrested on 09.06.2023 and he has been in custody since then and it is now more than 1 year 9 months since his arrest and as seen from the records, charge has been framed against the petitioner/accused on 03.03.2025 but none of the prosecution witnesses have been examined till date. It is also seen that the prosecution has furnished a list of 18 prosecution witnesses to be examined in the present case and it goes without saying that the trial will certainly continue for a long time. Accordingly, this Court on consideration of the facts and circumstances in the present case, is of the view that the petitioner/accused can be released on bail at this stage. Having had to undergo incarceration for 1 year 9 months and also in view of the fact that the trial is not likely to be completed soon in the near future, this application is allowed. 5 The accused/petitioner shall execute a bail bond of Rs. 30,000/- with 2 sureties of like amount to the satisfaction of Special Court ND&PS Act, Aizawl and abide by any other conditions that the learned Trial Court may impose in order to secure the presence of the petitioner during the trial. If the Page No.# 6/6 petitioner/accused violates any of the conditions imposed by the Trial Court it shall be seen as a violation of the bail granted and the bail shall be liable to be cancelled. The petitioner/accused shall also not leave the jurisdiction of the Trial Court without permission of the Trial Court. 6. Application stands disposed. JUDGE Comparing Assistant