Page No.# 1/5 GAHC040017442025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : BA/130/2025 Smti Poyum C Kongkang Wife of Thinngang C Kongkang, Lazu Village, PO and PS Lazu, Tirap District, Arunachal Pradesh. VERSUS The State of AP represented by the PP of AP Advocate for the Petitioner : Tabit Tapak, Bebeng Siboh,T Tabing,Aso Dalbong Advocate for the Respondent : P P of AP, Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE BUDI HABUNG ORDER 24.11.2025 Heard Mr. T. Tapak, learned counsel for the applicant. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State respondent. 2. By filing this bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the applicant, who is the wife of the accused, Shri Thinngang C. Kongkang, seeks release of the accused on bail who has been arrested in connection with KSA P.S. Case No. 13/2025, registered under Section 17(c) of the NDPS Act. 3. Mr. Tapak, learned counsel for the applicant, submits that the accused has been in custody since 09.07.2025 in connection with the said case. He further submits that the learned Special Judge, NDPS, Khonsa, rejected the petitioner’s application for default bail filed under section 480 read with section 187(3)(iii) BNSS, holding that the statutory period for completion of investigation in cases involving commercial quantity is 180 days, in view of the provision under Section 36-A(4) of the NDPS Act and not 90 days. 4. The learned petitioner’s counsel submits that the substance seized was in the form of opium-smeared cloth, and therefore the actual extractable opium cannot be mechanically treated as commercial quantity. It is contended that the rigor of section 37 does not apply. He further submits that the trial court’s finding regarding commercial quantity and the 180- days period is erroneous. However, since this order has not been separately challenged, this Court may independently examine the materials and consider granting bail to the accused. Page No.# 3/5 5. On the other hand, learned Additional Public Prosecutor, opposed the submissions and submitted that the FIR itself invokes section 17 (c), which is applicable only where commercial quantity of opium is allegedly involved. The total weigh of 5.277 kg of opium-smeared cloths treated as commercial quantity for the purpose of section 17(c), and the Special Jugde’s finding is therefore justified. It is submitted that the High Court cannot ignore the applicability of Section 37 merely because the accused disputes the manner of quantification. Thus, he submits that that the rigor of Section 37(1)(b) of the NDPS Act squarely applies, and the applicant has failed to satisfy the twin conditions under Sections 36A and 37(1)(b) of the Act. 6. The learned counsel for the petitioner fairly admitted that the bail rejection order passed by the learned Special Judge holding that the case attracts 36-A(4) NDPS has not been challenged in any proceeding. Under the circumstances, while exercising the jurisdiction under Section 483 BNSS, this Court does not sit in appeal over the said finding, nor can it indirectly set aside the reasoning of the learned special Judge when the petitioner has elected not to challenge the same. 7. As apparent, the FIR itself invokes Section 17(c) NDPS, which relates exclusively to commercial quantity of Opium. The seizure memo indicates recovery of 16 plastic pouches containing cloth smeared with suspected opium weighing 5.277 kg, beside other material. For the purpose of bail, and in absence of any scientific analysis showing that the substance does not constitute opium or fall below the commercial quantity, this Court finds no ground to take a view contrary to the conclusion of the Special Judge that the case prima facie involves commercial quantity which is not under challenged. Page No.# 4/5 8. Under the circumstances, and considering that the case falls under Section 17(c) of the NDPS Act, the statutory restriction under Section 37(1)(b) is attracted. As submitted by the learned Additional Public Prosecutor, it is well- settled that where commercial quantity is involved the bail can be granted unless the Court is satisfied that: (i) there are reasonable grounds to believe that the accused is not guilty, and (ii) The accused is not likely to commit any offence while on bail. (State of Kerala Vs Rajesh, reported in (2020)12 SCC 122,) 9. Upon hearing the parties and considering all the documents on record, this Court notes that the finding of the learned Special Judge, that the seized quantity constitutes commercial quantity under Section 17(c) of the NDPS Act remains unchallenged by the accused, at the stage of consideration of bail under Section 483 of BNSS, this Court is not required to sit in appeal over the bail order of the trial court or re-evaluate the quantity of the seized material, especially when the accused has chosen not to challenge the finding of the trial court in accordance with law. The allegation against the accused is serious. The learned Additional Public Prosecutor has submitted that the investigation is still in progress, and no material has been placed before this Court to show that the accused is not prima facie connected with the commission of the alleged offence. 10. In view of the statutory embargo under Sections 37(1)(b) of the NDPS Act, and in the absence of material enabling this Court to form the requisite satisfaction as provided under the Act, the accused is not entitled to bail at this stage. 11. Accordingly, the bail application filed under Section 483 of BNSS stands rejected. Page No.# 5/5 12. With the above, this bail application stands dismissed. JUDGE Comparing Assistant