Page No.# 1/6 GAHC010001172025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./46/2025 TAJNUR ALI S/O KHALEK R/O YASHIHATIPARA P.S. HOWLY DIST. BARPETA, ASSAM VERSUS THE UNION OF INDIA REP BY NARCOTICS CONTROL BUREAU (NCB), GUWAHATI Advocate for the Petitioner : MR. U K BARMAN, MR. R KONWAR,MR D PEGU,MR H ALI Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 04.04.2025 Heard Mr. H. Ali, learned counsel appearing for the accused petitioner as well as Ms. M. Deka, learned counsel representing the NCB. 2. By filing this second bail application under Section 483 of the BNSS, 2023 the accused-petitioner, namely, Tajnur Ali, has prayed for grant of bail in connection with NDPS Case No.107/2020 under Sections 22(C)/27-A/29 of NDPS Act pending in the court of learned Additional District & Sessions Judge, No.3, Page No.# 2/6 Kamrup(M). 3. The prosecution case in brief is that acting upon the specific information from reliable source that a person Bogimayum Samiur Rahman by name was carrying huge quantity of methamphetamine tablets which was going to deliver to another person namely Tajnur Ali near Indian Oil petrol pump Beharbari. Accordingly, the officials of the NCB intercepted the said vehicle in the said area and seized the suspected methamphetamine tablets weighing 1.090 kg and accordingly the petitioner along with two other co-accused were arrested. 4. The learned counsel for the petitioner has submitted that the accused petitioner has been languishing in judicial custody for four years ten months since his arrested on 10.06.2020. Till date, only four prosecution witnesses have been examined out of ten listed witnesses in the offence report and there is no likelihood that the trial of the case would be concluded in a short span of time. As such the rigors of Section 37 of the NDPS Act will not come into play in course of prolonged incarceration. 5. It is also the submission of learned counsel for the petitioner that the two other co-accused of the case who are on the same footing have been granted bail by this Court considering the prolonged incarceration. It is further submitted that no any contraband items were recovered from the possession of the petitioner. The petitioner was supposed to receive the contraband items from another co accused. Under such backdrop, the learned counsel for the petitioner prays that the petitioner may be enlarged on bail. In support of his submission, the learned counsel has relied on the following cases: (a) 2023 STPL 9178 SC (Rabi Prakash vs State of Odisha). (1) BA No. 1564/2024 (Chandra Vir and another vs NCB, Guwahati). Page No.# 3/6 6. Per contra, Ms. M. Deka, learned counsel representing the NCB has submitted that this is the second bail application and the first bail application preferred by this petitioner was rejected by this Court and this successive application for bail though accused had a right to make, Court has duty to consider reasons and ground on which earlier bail application was rejected and the Court has also a duty to record fresh grounds which persuaded it to take a view different from one taken earlier. 7. It is further submitted that while considering the application of bail, the Court must bear in mind Section 37 of NDPS Act which is mandatory in nature. The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act and as also the impact of the society as a whole. It has to be interpreted literally and not liberally which may ultimately frustrated the object and purpose of the Act. Learned counsel representing the NCB has referred the following case laws: (1) (2005) O Supreme (SC)104 (Kalyan Chandra Sarkar vs Rajesh Ranjan @ Papu Yadav and another). (2) (2024) O Supreme (SC) (NCB vs Kashif). 8. Having heard the learned counsel for the parties, it reveals that the learned counsel for the petitioner has prayed for bail on two grounds i.e. prolonged incarceration and for releasing the co-accused on bail. 9. Coming to the question of prolonged incarceration, it reveals that the accused petitioner was arrested on 10.06.2020 and out of ten witnesses, four witnesses have been examined in the first part of 2024 i.e. on 28.02.2024 and after ten months PW-5 was partly examined on 17.12.2024. Since then cross of PW-5 was reserved. Page No.# 4/6 10. The first bail application of the present petitioner was rejected by this Court on 03.09.2024 on the ground that only four witnesses were examined and it could not be said at this stage that the prosecution has failed to prove that the accused petitioner is not guilty of the offence alleged. However, the trial court was directed to expedite the trial of the case. 11. From the trial court record it reveals that after passing of the order i.e. since 03.09.2024, seven months have been elapsed but the trial court as well as the NCB has failed to complete the examination of PW-5 and recording the evidence of other witnesses during such period. 12. In the case of Md. Salman Hanif Sk vs State of Gujarat vide Special Leave to Appeal (CRL) No. 5530/2022 dated 27.04.2022 it was held as follows: “ We are inclined to release the petitioner on bail only on the ground that he has spent about two years in custody and conclusion of trial will take some time…….”. 13. In the case of Ravi Prakash (supra) it was held by the Apex Court that: “ As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent shall has been duly heard. Thus, the first condition stands complied with. So far as the second condition i.e. formation of opinion as to whether there are reasonable ground to believe that the petitioner is not guilty, the same may not be found at this stage when he has already spent more than three and half years in custody. The prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37 (1)(b)(ii) of the NDPS Act……” 14 In another case, Union of India vs K.A. Najeeb (2021) 3 SCC 701 it has been observed that “even in the case of special legislation like the terrorist and disruptive activities (prevention) Act, 1987 or the NDPS Act, 1985 which have rigorous conditions for grant of bail, the Court in Paramjeet Singh vs State (NCT of Delhi) (1999) 9 SCC 252; Babba @ Sankar Ragjuman Rohiba vs State of Page No.# 5/6 Maharashtra (2005) 11 SCC 569; Umar Miah @ Mamu Miah vs State of Gujarat (2017) 2 SCC 731, had enlarged the accused on bail when they have been in jail for an extended period of time with little possibility of early completion of trial. It has also been observed there that the constitutionality of harsh conditions for bail in such special enactments has thus been primarily justified on the touchstone of speedy trial to ensure the protection of innocent civilians” 15. Reverting to the case in hand, admittedly the accused petitioner is about to complete five years in judicial custody. Out of ten witnesses only four witnesses have been examined and PW-5 is partly examined. The trial court has failed to complete the trial within such period of five years. In spite of repeated direction to the trial court to take initiative to dispose of the case being the accused in judicial custody for a long time, however, the trial court is not responsive to take up the matter seriously. 16. Consequently, without expressing any views on the merits of the case and taking into consideration the custody period of the petitioner, this Court is inclined to grant bail to the accused petitioner. 17. Accordingly, the petitioner, named above, shall be released on bail, on furnishing bail bond of Rs.1,00,000/- with two suitable sureties of the like amount, to the satisfaction of learned Additional District and Sessions Judge No.3, Kamrup (Metro). The direction for bail is further subject to the following conditions that the accused-petitioner: (a) shall not leave the territorial jurisdiction of the learned trial court without prior written permission from him/her till disposal of the case. (b) Shall regularly attend the court as and when fixed for hearing by the trial court and shall cooperate with the court for early disposal of the case. Page No.# 6/6 18. The learned Additional District and Sessions Judge No.3, Kamrup (Metro), is at liberty to impose any other condition(s) as it deems fit and proper at the time of releasing the accused/petitioner on bail to procure his attendance during trial. 19. In terms of the above, this bail application stands disposed of. JUDGE Comparing Assistant