Page No.# 1/4 GAHC010247752025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3633/2025 VICTOR EKKA AND 2 ORS. S/O VALERIUS EKKA, R/O RATIA GAON, PS DOKMOKA, DIST KARBI ANGLONG, ASSAM 2: MANOB SWARGIARY ALIAS MANOS SWARGARY SON OF KUSHAL SWARGIARY R/O HAMUK JAN PS DOKMOKA DIST KARBI ANGLONG ASSAM 3: AMIR TIRKI ALIAS AMIT TIRKEY S/O BIMOL TIRKEY R/O RATIA GAON PS DOKMOKA DIST KARBI ANGLONG ASSA VERSUS THE STATE OF ASSAM TO BE REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : TAWHID LASKAR, A S CHOUDHURY,MR. D K AGARWALA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER Page No.# 2/4 27.11.2025 Heard Mr. T. Laskar, learned counsel appearing for the accused petitioners as well as Mr. P. Borthakur, learned Addl. P.P., Assam appearing for the State respondent and Mr. M. Rahman, learned counsel appearing for respondent No.2. 2. This petition under Section 483 of the BNSS, 2023 has been filed by the accused- petitioners, namely, (1) Victor Ekka (2) Manob Swargiary @ Manos Swargary and (3) Amir Tirki @ Amit Tirkey, arrested on 15.10.2025 in connection with Doboka PS Case No.202/2025 under Sections 21(b)/27A/29 of NDPS Act. 3. Case diary as called for is received. 4. The gist of the allegations in the FIR dated 14.10.2025 is that upon an information, search operation was conducted at the place of occurrence and apprehended three accused persons herein and from the vehicle AS 01 FB 5261 suspected contraband in the nature of heroin along with some other materials were seized. 5. The quantity of heroin was stated to be 8.99 grams. However, after the sampling procedure, the said quantity is stated to be 4.91 grams. With regard to heroin, quantity below 5 grams would be small quantity. 6. In terms of Section 37 NDPS Act, the rigors thereof would be applicable with regard to the penal provision of Section 27A of the Act as well. The said penal provision criminalizes the act of financing drug traffic. 7. Upon perusing the case diary, learned Additional Public Prosecutor submitted that he has not yet noticed any materials directly with regards to the said offence. However, there are incriminating materials against the petitioners and indicative of their being indulging in peddling as well and the investigation is still in progress. In this context the prosecution opposes the bail petition. 8. Though section 27-A of the NDPS Act, attracts the rigors of section 37, but the quantity of contraband in the instant case (small quantity) would make the offence bailable as per the Page No.# 3/4 law laid down by this court in the case of Bilal Hussain vs State of Assam in AB No. 3029/2024. It appears that there is no authoritative pronouncement of the Hon’ble Apex as yet, on the question as to whether offences pertaining to small quantity under the NDPS Act are bailable or non bailable. 9. In terms of the settled law with regard to Section 37 of the NDPS Act, if the Court is unable to hold on the basis of the materials that the accused is not guilty prima facie - then the statutory bar would be applicable on granting of bail. Such a bar would be applicable even to a constitutional court like a High Court and perhaps might give way at a subsequent stage to the principles of Article 21 of the Constitution of India; especially, if there is undue delay in completion of the trial. Thus, severally speaking, where the rigors of section 37 NDPS Act are applicable to the person, the Court is statutorily prohibited from granting bail. 10. However, even where the test of section 37 of the NDPS Act is passed in favour of the accused, the general restrictions or parameters governing adjudication of bail would still be applicable and in a particular situation, the court will still have the discretion to refuse bail. 11. In the instant case, if there are no materials at this stage with regard to Section 27A - though the remaining penal provision is section 2(b), but in view of the determination by the Magistrate finding the quantity to be (small quantity)- the petitioners would be entitled to be given bail as offenses pertaining to small quantity are bailable within the jurisdiction of this court. 12. Accordingly in the given facts and circumstances, it is provided that the accused petitioners, named above, shall be released on bail of Rs.25,000/- each with one suitable surety of like amount each to the satisfaction of learned concerned court subject to the following conditions that the petitioners: (a) shall co-operate with the remaining trial. (b) Shall not hamper or tamper with the evidence. (c) shall not indulge in any illegal activities including any activity of NDPS Act . 13. Violation of any of the bail conditions shall entail cancellation of bail. Page No.# 4/4 14. Accordingly, this bail application stands allowed and disposed of. JUDGE Comparing Assistant