Page No.# 1/6 GAHC010025642025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./381/2025 SUKH DEV S/O LATE KARAM CHAND R/O VILL-USMANPUR P.S.NURPUR DIST.RUPNAGAR, PUNJAB, PIN-140001 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. A PAUL, MD. M. ALI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 24.04.2025 1. Heard Mr. A. Paul, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State of Assam. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Sukh Dev, who has been detained behind the bars since Page No.# 2/6 25.06.2023 (for more than 1 year 10 months) in connection with NDPS Case No. 42/2023 corresponding to Rangia P.S. Case No. 361/2023 under Sections 17(c)/29 of the NDPS Act, 1985 pending before the Court of the learned Special Judge, Kamrup, Rangia. 3. The gist of accusation in this case is that on 25.06.2023 an FIR was lodged before the Rangia Police Station, wherein it was alleged that 5.016 Kgs of opium was recovered from the truck bearing registration No.PB-65-BC-5967 and the above named petitioner was found in the said truck and was arrested. After receipt of the said FIR, Rangia P.S. Case No.361/2023 was registered and investigation was initiated and on completion of the investigation Charge-sheet was laid against both the above named accused petitioner under Sections 17(c)/29 of the NDPS Act, 1985. 4. Mr. A. Paul, learned counsel for the petitioner has submitted that on an earlier occasion, the prayer for bail of the present petitioner was rejected by this Court on 26.09.2024 and a direction was given to the Trial Court to expedite the trial. However, he submits that in spite of the same direction, since the date of rejection till date, no further witness has been examined. 5. The learned counsel for the petitioner submits that the petitioner is languishing behind the bars for more than 1 year 10 months and only 4 out of total 9 listed prosecution witnesses have been examined. Therefore, he submits that the petitioner is entitled to get bail on the ground of prolonged incarceration. 6. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner on the grounds that the contraband seized in this case is of commercial quantity, and, therefore, Page No.# 3/6 embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He further submits that already 4 out of total 9 listed prosecution witnesses have been examined. However, he fairly submits that in spite of direction given by this Court to expedite the trial, no further witness has been examined till date by the Trial Court. 7. 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”. 8. 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.” 9. 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.” Page No.# 4/6 10. 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: “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.” 11. In the instant case also, the petitioner has been detained behind the bars for more than 1 years and 10 months and in spite of a direction by this Page No.# 5/6 Court to expedite the trial, no further witness has been examined after 26.09.2024. 12. 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 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. 13. 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. 14. In view of the above, the above named petitioner is allowed to go on bail of Rs.50,000/- (Rupees Fifty Thousand only) with one surety of like amount subject to the satisfaction of the learned Special Judge, Kamrup, Rangia with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 42/2023, which is pending in the Court of the learned Special Judge, Kamrup, Rangia; 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, Page No.# 6/6 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 similar offence while on bail; vii. 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. 15. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant