Page No.# 1/9 GAHC010023752025 2025:GAU-AS:2207 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./326/2025 SABIR AHMED @ MD SABBIR AHMAD SON OF- LT. JALAL AHMED RESIDENT OF- CHAPARMUKH TOWN POLICE STATION- RAHA, DISTRICT- NAGAON (ASSAM) TEMPORARY ADDRESS R/O- H. NO. 12LC, NEISATUO COLONY DIMAPUR, PS- WEST DIMAPUR, NAGALAND. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. Y S MANNAN, MR. S MUNIR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 03.03.2025 1. Heard Mr. Y.S. Mannan, the learned counsel for the petitioner. Also heard Mr. R.J. Baruah, the learned Additional Public Prosecutor, Assam. 2. This application under Section 483 of the Bharatiya Nagarik Suraksha Page No.# 2/9 Sanhita(BNSS), 2023 has been filed by the petitioner, namely, Sabir Ahmed @ Md. Sabbir Ahmad, who has been detained behind the bars since 10.01.2023(for the last 02 years 02 months), in connection with NDPS Case No. 41/2023, under Section 21(c)/29 of NDPS Act, 1985, pending before the Court of the learned Special Judge, NDPS, Karbi-Anglong, Diphu. 3. The gist of accusation in this case is that on 10.01.2023, one Rajib Bora, S.I. of Police of Khatkhati Police Station had lodged an FIR before the Officer-in-charge of Khatkhati Police Station, inter alia, alleging that on receipt of information through reliable sources that huge quantity of narcotic substances was being transported through Khatkhati, a naka checking was conducted near Khatkhati, Janak Phukuri Tiniali and at about 12.20 PM on 10.01.2023, one Chevrolet car bearing Registration No. AS-01-AA-3848 was intercepted. On checking, it was found that the said car was being driven by the present petitioner Sabbir Ahmed and on search of the said car some white carry bag inside a carton box in the dikki of the said car was recovered from where suspected heroin weighing about 363.17 grams were recovered. The said contraband was seized by the seizing officer, and Khatkhati P.S. Case No. 2/2023 under section 21(c) of the NDPS Act, 1985 was registered. Ultimately on completion of the investigation, charge-sheet was laid against the present petitioner under section 21(c)/29 of the NDPS Act, 1985. One co-accused Md. Salman Khan @ Sahil was also named in the charge-sheet as accused No. 2. 4. The learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars since more than 02 years 02 months and till date only, 3(three) out of 6 (six) listed prosecution witnesses have been examined. He submits that the third witness, i.e. the last witness to be examined on 08.08.2024 and thereafter, no witnesses have been examined. Page No.# 3/9 5. The learned counsel for the petitioner further submits that on an earlier occasion, the petitioner had approached this Court by filing an application for bail. However, his prayer for bail was rejected, by order dated 03.04.2024, in Bail Application No. 445/2024, wherein an observation was made that at that time, the incarceration undergone by the present petitioner was not long enough to grant him the benefit of long incarceration. He also points out to the fact that it was directed by the said order to the Trial Court to proceed as expeditiously as possible to culminate the trial preferably within 6(six) months. However, the learned cornel for the petitioner submits that more than 1(one) year has lapsed, since the passing of the said order and the trial has not yet progressed beyond recording of PW-3. He further submits that there is unlikelihood of culmination of trial at the earliest and therefore, the petitioner may be granted bail on the ground of prolonged incarceration. 6. In support of his submission, the learned counsel for the petitioner has relied upon following rulings. In all these cases, the accused person 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 Page No.# 4/9 (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 (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); and viii. A few other similar rulings. 7. 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. He further submits that the embargo of Section 37 of the NDPS Act, 1985 would also be applicable because of the fact that all the three witnesses, who have already been examined have implicated the present petitioner. He further submits that the Trial Court had granted bail to the co accused on the basis of the ruling of “Tofan Singh Vs. State of Tamil Nadu” reported in “[2020] 12 S.C.R. 583.” However, he submits that after getting bail, the co accused has defaulted and since 12.08.2024, the co accused, namely, Md. Salman Khan @ Sahil is not appearing before the Trial Court and the Trial Court has again issued non-bailable warrant of arrest against the said accused. 8. The learned Additional Public Prosecutor submits that the trial is delayed only because of the non cooperation of the co accused, who has been Page No.# 5/9 granted bail and there is no lapse on the part of the prosecution side in delaying the trial. He, therefore, submits that this is not a fit case, where bail may be granted on the ground of prolonged incarceration to the present petitioner. 9. I have considered the submissions made by the learned counsel for both the sides and have gone through the scanned copy of the case record of NDPS Case No. 41/2023. 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 Live Law(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 Page No.# 6/9 such circumstances, be considered.” 13. In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil” 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 Page No.# 7/9 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. The petitioner has been languishing behind the bars since for more than 02 years 02 months. Though, it is apparent from the record that the trial is getting delayed due to the default of the co accused, who has been granted bail by the Trial Court, however, no fault for the delay in trial may be attributed to the present petitioner, as he is detained behind the bars since the date of his arrest. 15. This Court is of the considered opinion that in view of the observations made by the Apex Court in the cases cited hereinabove, if for whatsoever reasons if inordinate delay is caused and if it is without any fault on the part of the petitioner, and he has been detained behind the bars for a long period, it would certainly infringe his Fundamental Rights guaranteed under Article 21 of the Constitution of India. 16. 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 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 Page No.# 8/9 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, Sabir Ahmed @ Md. Sabbir Ahmad, is allowed to go on bail of Rs. 2,00,000/- (Rupees Two Lakhs 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, NDPS, Karbi-Anglong, Diphu, with the following conditions:- i. That the petitioner shall cooperate in the trial of NDPS Case No. 41/2023, which is pending in the Court of learned Special Judge, NDPS, Karbi-Anglong, Diphu; 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 as well as 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; Page No.# 9/9 vi. That the petitioner shall not commit any offence while on bail; and vii. One additional condition is that the petitioner shall appear before the Officer-in-charge of Khatkhati Police Station every 15(fifteen) days till the pendency of the trial. 19. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant