Page No.# 1/9 GAHC010006572025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./126/2025 AMARESH KR RAY S/O LATE YOGENDRA RAY ADDRESS- VILL- WARD NO. 8, BIJITPUR CHAKASTURI, VAISHALI, BIHAR- 844509. VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR SISHIR DUTTA, MS S MOCHAHARI,MR. S DUTTA,MS K BORAH Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 20.02.2025 1. Heard Mr. S. Dutta, the learned senior counsel assisted by Mr. S. Dutta, the learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, learned Page No.# 2/9 Additional Public Prosecutor, appearing for the State of Assam. 2. This is an application under Section 483 of BNSS, 2023 by the petitioner, namely, Amaresh Kumar Ray, who has been detained behind the bars since 28.03.2023 (for more than 1 years 10 months) in connection with Special (NDPS) Case No.26/2023 under Section 20(b)(ii) (C)/25/29 of the NDPS Act, 1985, pending before the Court of learned Sessions Judge, Sribhumi 3. The gist of accusation in this case is that, on 28.03.2023, one Niranjan Das, SI of Police, had lodged an FIR before the Officer-In-Charge of Bazarichera Police Station, inter-alia, alleging that during daily Naka checking duty at Naka checkpoint of Churaibari Watch Post at National Highway No. 8, one vehicle bearing Registration No. NL01AD4522, which was coming from Tripura side, was stopped and checked. The said vehicle was driven by the present petitioner, Amaresh Kumar Ray. 4. During search of the said vehicle, 1275 kgs of suspected Ganja was recovered from there. 5. On receipt of the said FIR, Bazarichera P. S. Case No. 72/2023 was registered and the investigation was initiated. 6. Ultimately, on completion of the investigation, the charge sheet was laid on 31.05.2023 against the present petitioner under Section 20(b)(ii) (C)/25/29 of the NDPS Act, 1985. 7. The learned senior counsel for the petitioner has submitted that the petitioner was only a driver of the logistic company and on the fateful day, he was assigned the duty as per the roster plan to drive the truck, which was seized in this case, with some consignment for delivery of the same at Page No.# 3/9 Guwahati. 8. It is submitted by the learned senior counsel for the petitioner that the petitioner was unaware about the goods which were there in the truck which was driven by him on the fateful day. 9. The learned senior counsel has further submitted that the petitioner has been languishing behind the bars for more than 1 year 10 months and even the charges are yet to be framed and there is an unlikelihood of early culmination of the trial. He submits that under the present facts and circumstances, the petitioner is entitled to get bail on the ground of prolonged incarceration only. 10. In support of his submission, the learned counsel for the petitioner has relied upon following rulings. In all these cases, the accused persons were charged of offenses relating to commercial quantity of contraband and they were granted bail mainly on the ground of prolonged incarceration: - i. Khurshid Ahamad @ Wasim Ahmad Vs the State of Bihar (SLP Criminal No. 16726/2023) (Incarceration for 1 year 10 months). ii. Kalpesh Gulab Bhai Khojaji Vs. the State of Gujarat (SLP Criminal No.2325/ 2023) (Incarceration for 1 year 5 months). iii. Jairam Vs. the State of Rajasthan (SLP Criminal No. 2479/2024) (Incarceration for 1 year 9 months). iv. Shariful Islam alias Sharif Vs. the State of West Bengal (Special Leave to Appeal (Criminal) No. 4173/2022) (Incarceration for 1 year 6 months). v. Anjan Nath Vs. for the State of Assam Special Leave to Appeal (Criminal No. 9860/2023) vi. Chitta Biswas alias Subhash Vs. the State of West Bengal Page No.# 4/9 (SLP Criminal No. 8823/2019 (Incarceration for 1 year 6 months). vii. Nitish Adhikari alias Bapan Vs. State of West Bengal SLP Criminal No. 5769/2022 (Incarceration for 1 year 7 months). viii. And a few other similar rulings. 11. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner on the ground that the contraband seized in this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 12. He also submits that there are implicating materials against the present petitioner which do not justify the grant of bail to the present petitioner at this stage. 13. The learned Additional Public Prosecutor has also submitted that the offence involved in this case affects a large section of society and entails harsh punishment and therefore, for such offence, grant of bail merely on the ground of long period of incarceration in itself is not justified. 14. He submits that considering the gravity of offence involved, the petitioner is not entitled to get bail on the ground of prolonged incarceration. 15. In support of his submission, the learned Additional Public Prosecutor tor has cited a ruling of the Apex Court in the case of “Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Another” reported in (2004) 7 SCC 528. 16. I have considered the submissions made by learned counsel for both the sides and have perused the materials available on record, including the Page No.# 5/9 scanned copy of the case records of Special (NDPS) Case No.26/2023, which was requisitioned in connection with this case. 17. 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”. 18. 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.” 19. 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.” 20. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation & Page No.# 6/9 Another” reported in AIR 2022 SC 3386 are relevant, same is quoted here in below: “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.” 21. As regards the submission of the learned Additional Public Prosecutor that the prolonged incarceration in itself cannot be a ground for releasing the petitioner on bail, considering the commercial quantity of contraband involved, as well as considering the observations made by the Apex Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav (supra), it appears that in said case the bail granted to the accused Rajesh Ranjan was cancelled on the grounds that after being Page No.# 7/9 enlarged on bail, there were complaints against him of misusing his liberty and threatening the witnesses. In that case, after enlargement of the accused on bail, the prosecution witnesses became hostile and that fact is taken into consideration while cancelling the bail granted to the accused of that case. However, in the instant case, no such circumstances exist. Rather, the petitioner is languishing behind the bars for more than 01 year, 10 months and trial is yet to commence. 22. There does not appear to be any accusation or any apprehension of the petitioner threatening the witnesses. There also appears to be no fault on his part for delay in commencement of trial. 23. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited here in above, for whatsoever reason if inordinate delay is caused and if without any fault on the part of the 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. 24. 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 NDPS 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. Page No.# 8/9 25. In view of the above, the petitioner, namely, Amaresh Kumar Ray, is allowed to go on bail of Rs. 1,00,000/- (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 learned Sessions Judge, Sribhumi with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No.26/2023, which is pending in the Court of learned Sessions Judge, Sribhumi; 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; and vi. That the petitioner shall not commit any offence while on bail. 26. Violation of any of the above condition would be a good ground for the Trial Court to exercise its powers under Section 483(3) of the BNSS, 2023. Page No.# 9/9 27. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant