Page No.# 1/6 GAHC010255192025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3766/2025 MOJIBUR ALI AND 2 ORS. S/O ALAMACH ALI R/O VILL N.K. DARRANGA,P.S TAMULPUR, DIST- TAMULPUR, ASSAM, PIN- 781360 2: KABIL ALI S/O MUNU MIYA R/O VILL N.K. DARRANGA P.S TAMULPUR DIST- TAMULPUR ASSAM PIN-781360 3: MAHAMMAD CHAND S/O NURUL HODA R/O VILL N.K. DARRANGA P.S TAMULPUR DIST- TAMULPUR ASSAMPIN78136 VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. A K AZAD, MS S DEVI Advocate for the Respondent : PP, ASSAM, Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 11.12.2025 1. Heard Mr. A. K. Azad, learned counsel for the petitioners. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State. 2. This application under Section 483 of the BNSS 2023 has been filed by the petitioners, namely, 1. Mojibur Ali, 2. Kabil Ali and 3. Mahammad Chand who are detained behind the bars in connection with Special NDPS Case No. 11/2025 arising out of Tamulpur P.S. Case No. 92/2025 under Sections 22(c)/25/29 of the NDPS Act, 1985. The petitioner Nos. 1 and 2 are detained behind the bars since 04.04.2025 whereas, the petitioner No. 3 is detained behind the bars 28.05.2025. 3. The gist of accusation in this case is that on 04.04.2025, one Mahendra Saikia, SI of Police had lodged an FIR before the Officer-in-charge of Tamulpur Police Station, inter alia, alleging that on that day an information was received through reliable sources that two persons, namely, Mojibur Ali and Kabil Ali, (petitioner Nos. 1 and 2) were possessing large number of suspected prohibited drugs in their house which was given to them by one Phurba Sherpa. Accordingly, a search team was constituted and a search was made in the house and premises of the petitioner Nos. 1 and 2 in presence of independent witnesses. Though nothing was found from the inside the house of the petitioners, however, during such operation a gunny bag was found concealed near the boundary wall under the tin sheets. On removing the tin sheets and searching the gunny bag it was found that there was a blue colored school bag wherein a black colored polythene was there containing 16 small plastic carry Page No.# 3/6 bags containing 1388.67 grams of suspected narcotic drugs. The petitioner Nos. 1 and 2 were arrested from the place of search and during investigation, involvement of petitioner No. 3 was also found. It is also found during forensic examination that the recovered suspected narcotic drugs contained Tramadol which is a prohibited narcotic substance under NDPS Act, 1985. 4. The learned counsel for the petitioner has submitted that the petitioners are innocent and have been wrongly implicated in the case. He submits that nothing was found from the house of the petitioner Nos. 1 and 2 and the suspected narcotic substance was recovered only near the boundary of the house of the petitioner Nos. 1 and 2. He submits that the circumstances under which the narcotic substance was recovered cannot rule out a third person or somebody else keeping the narcotic substance there in the boundary of the house complex of the petitioner to implicate the petitioners falsely. 5. He further submits that the petitioner No. 3 is not even named in the FIR and he has been implicated merely on the basis of the statement of the co- accused. He further submits that, in the meanwhile, five out of ten prosecution witnesses have been examined and there are material contradictions in the testimony of the witnesses which would give benefit to the petitioners. He further submits that the petitioners were languishing behind the bars for more than eight months and five more witnesses are there to be examined and it is unlikely that the same would be done very soon and, therefore, he submits that petitioners are entitled to get bail. 6. He also submits that since a reasonable suspicion arise regarding involvement of petitioners in the alleged offence on the basis of the witnesses which are already examined, an opinion may be formed that there are reasonable grounds to believe that the petitioners are not guilty of the offence Page No.# 4/6 alleged against them. He further submits that the petitioners are also entitled to get benefit of bail on the ground of prolonged incarceration since they are detained behind the bars for more than eight months and trial has not yet been culminated. In support of his submission, he has cited the ruling of the Apex Court in the case of “Rabi Prakash Vs. The State of Odisha” reported in “2023 0 Supreme (SC) 707”. 7. On the other hand, Mr. B Sarma, learned Additional Public Prosecutor has vehemently opposed the grant of bail to the petitioners on the ground that the quantity of contraband recovered in this case is of commercial quantity and, therefore, embargo of Section 37 of the NDPS Act is applicable to this case. 8. He submits that the materials on record clearly shows that the contraband was recovered within the boundary of the residential complex of the petitioner Nos. 1 and 2 and the manner in which it was kept concealed leaves no doubt regarding their involvement. He further submits that though nothing was recovered from the possession of petitioner No. 3 during investigation, his involvement under Sections 29/22(c) of the NDPS Act has also been established on the basis of CDR report and statement of other independent witnesses. He further submits that wife of the petitioner No. 1 who has implicated all the petitioners in her statement which was recorded under Section 180 of the BNSS is yet to be examined and, therefore, on the basis of only five witnesses recorded by the prosecution side at this stage he submits that an opinion regarding innocence of the petitioner may not be formed. He, therefore, prays for rejecting the bail application. 9. I have considered the submissions made by the learned counsel for both sides. Page No.# 5/6 10. Undisputedly, the quantity of contraband recovered in this case is of commercial quantity and, therefore, to get the benefit of bail, the petitioners have to overcome the twin embargo contained in Section 37 of the NDPS Act. This Court has to arrive at an opinion that there are reasonable grounds to believe that the petitioners are not guilty of the offence alleged against them and only in such an event they may be granted bail in this case as it involves recovery of commercial quantity of contraband. However, from the materials on record, it appears that there is evidence to indicate that the contraband involved in this case was recovered within the boundary of the residential complex on the petitioner Nos. 1 and 2 and, therefore, at this stage it may not be possible to form an opinion regarding existence of reasonable grounds to believe that they are not guilty. 11. As regards petitioner No. 3 is concerned, one of the five remaining witnesses who are yet to be examined, have implicated him in connection with the alleged offence. The CDR reports as well as other materials also points towards his involvement under Sections 29/22(c) of the NDPS Act in this case. Further, though, this Court does not dispute the proposition of law that prolonged incarceration overrides the embargo of Section 37 of the NDPS Act. However, for that the incarceration undergone by the petitioners have to be considered to be long enough by the Court. Since, huge quantity of prohibited drugs were recovered from the possession of the petitioners, the incarceration presently undergone by the petitioners i.e., about eight months, in view of the fact that the trial is proceeding smoothly and already five witnesses have been examined, it does not seem to be long enough to give benefit of bail to the petitioners on the ground of prolonged incarceration. 12. For the reasons stated hereinabove, this Court is reluctant to grant bail Page No.# 6/6 to the petitioners at this stage. 13. The bail application is accordingly dismissed. JUDGE Comparing Assistant