Page No.# 1/7 GAHC010003012025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./115/2025 SUJIT NATH S/O SATYENDRA CHANDRA NATH R/O VILL- MADHYA KALIBARI P.O. AND P.S. CHURAIBARI, DIST. NORTH TRIPURA, TRIPURA, PIN-799262. VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR SISHIR DUTTA, MR S DUTTA,MS K BORAH,MR. S DUTTA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 05.04.2025 1. Heard Mr. S. Dutta, the learned senior counsel assisted by Mr. S. Dutta, the learned counsel for the petitioner. Also heard Ms. N. Das, learned Additional Public Prosecutor, appearing for the State of Assam. 2. This application, under Section 483 of BNSS, 2023 has been filed by the Page No.# 2/7 petitioner, namely, Sujit Nath, who has been detained behind the bars since 09.09.2023 (for more than 1 year 7 months) in connection with Special NDPS Case No. 119/2023 registered under Sections 20(b)(ii) (C)/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (corresponding to Bazaricherra P. S. Case No. 182/2023), pending before the Court of learned Special Judge, Sribhumi (Karimganj). 3. The gist of accusation in this case is that on 09.09.2023, one Shri Pranab Milli, SI of Police had lodged an FIR before the Officer-In-Charge of Bazaricherra Police Station, inter-alia, alleging that on that day during conducting naka checking duty at naka checking point of Churaibari Watch Post at National Highway No. 8, at about 6.30 AM, one 12 wheeler goods carrier truck bearing Registration No. TR-01-AS-1811, coming from Tripura Side was signalled to stop and thereafter, it was checked. During checking of the said vehicle, 66 numbers of packets containing suspected ganja were found concealed in secret chambers of the said vehicle. On weighing the recovered ganja, the weight was found to be 400 kg and 200 grams. From the said truck, the driver, Pradip Biswas, the co-driver, Mintu Choudhury and the helper Sujit Nath (present petitioner) were apprehended. It is also alleged that the present petitioner tried to escape from the place of occurrence, however, he was apprehended with the help of local people. During interrogation of apprehended persons, it came to light that the recovered contraband was sent by one Giribhai @ Bibhash and the present petitioner was in contact with the said person over his mobile phone. 4. On receipt of the FIR, Bazaricherra P.S. Case No.182/2023 under Sections 20(b)(ii)(C)/25/29 of the Narcotic Drugs and Psychotropic Page No.# 3/7 Substances Act, 1985 was registered. 5. The learned senior counsel for the petitioner has submitted that the petitioner has been detained behind the bars for more than 1 year and 7 months and till date even the recording of the evidence of the prosecution side has not yet been started and only the charges were framed against the present petitioner. 6. The learned senior counsel for the petitioner has submitted that there are ten (10) listed prosecution witnesses and the trial is unlikely to culminate soon. 7. Additionally, he also submits that at the time of his arrest, the present petitioner was not informed about the ground of arrest as mandated under Article 22(1) of the Constitution of India as well as under Section 52 of the Narcotic Drugs and Psychotropic Substances Act, 1985 as well as Section 50 of the Code of Criminal Procedure, 1973. 8. He submits that in view of the ruling of the Apex Court in case of “Vihan Kumar Vs. State of Haryana and Another” reported in 2025 SCC Online SC 269, the violation of provision of Article 22 of the Constitution of India, at the time of arrest would render the arrest illegal and once the arrest is held to be vitiated, a person arrested may not allow to be remain in custody even for a second. 9. On the other hand, Ms. N. Das, the learned Additional Public Prosecutor has submitted that the charges against the petitioner are recently framed, i.e., on 09.01.2025, and the prosecution side is not at fault. She submits that as the quantity of contraband seized in this case is of commercial quantity and, therefore, the embargo of Section 37 of the Narcotic Drugs Page No.# 4/7 and Psychotropic Substances Act, 1985 would be applicable in this case and on that ground she opposes the grant of bail to the present petitioner. 10. The Supreme Court of India in “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352” has observed that “grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985”. 11. The Apex Court in “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” has observed that “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.” 12. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” reported in “2024 LiveLaw (SC) 416”, the Supreme Court of India has observed as follows: - “...........it is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.” 13. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation & Another” reported in AIR 2022 SC 3386 are relevant, same are quoted here in below: Page No.# 5/7 “49. Sub-section (1) mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the noncompliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own.” 14. In the instant case also, the petitioner has been detained behind the bars for more than 1 year and 7 months and not even a single witness has been examined. 15. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited herein above, for whatsoever reason if inordinate delay is caused and if without any fault on the part of the Page No.# 6/7 petitioner, he is kept under detention for a long period, it would certainly infringe his fundamental rights guaranteed under Article 21 of the Constitution of India. Under such circumstances, his constitutional rights guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37(1) (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he would be entitled to get bail on the ground of prolonged incarceration only. 16. In addition to that if the submissions of the learned senior counsel for the petitioner has submitted regarding violation of the constitution mandate of informing the ground of arrest to the petitioner at the time of his arrest is violated, the petitioner is entitled to be released on that ground only. 17. Under the facts and circumstances of this case, in the considered opinion of this Court, the long incarceration of the petitioner has, in the instant case as well, outweighed the embargo of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Therefore, he is entitled to get bail on the ground of the infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. 18. In view of the above, the petitioner, namely, Sujit Nath, is allowed to go on bail of Rs. 2,00,000/- (Rupees Two Lakh only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned Special Judge, Sribhumi (Karimganj) with the following conditions: i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 119/2023, which is pending in the Court of the learned Special Judge, Sribhumi (Karimganj); Page No.# 7/7 ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN Card, Mobile Number, and other contact details before the Trial Court; v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; vi. That the petitioner shall not commit any offence while on bail; vii. That the petitioner shall appear before the Officer-in-Charge of Bazarichera Police Station once in every fortnight till the pendency of the Special NDPS Case No. 119/2023; viii. That any violation of the above conditions shall be a good ground for the Trial Court to get the petitioner arrested and commit him to custody. 19. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant