Page No.# 1/9 GAHC010026062024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./389/2024 ABRAR @ ABRAM S/O ISTKAR R/O BAHRODA, P.S. KITHOR DIST. MEERUT, UTTARPRADESH. VERSUS THE STATE OF ASSAM TO BE REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,MR. A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 11.03.2025 1. Heard Mr. A. Ahmed, the learned counsel for the petitioner. Also heard Mr. K. K. Das, the learned Additional Public Prosecutor, appearing for the State of Assam. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner namely, Abrar @ Abram, who has been detained behind the Page No.# 2/9 bars since 10.05.2023 (for more than 1 year 9 months) in connection with Bazaricherra P. S. Case No. 106/2023 under Section 21(c)25/29 of the NDPS Act, 1985. 3. The gist of accusation in this case is that on 10.5.2023, one Pranab Mili, SI of police, had lodged an FIR before the officer in charge of Bazaricherra police station, inter-alia, alleging that, during regular naka checking duty at naka checkpoint of Churaibari watch post at National Highway No. 8, one truck bearing Registration No. UP-21-CT-6858 was intercepted. The said truck was driven by one Anas, and accompanied by co-driver, Jilani, and the helper, Abrar, was also found in the said truck. 4. During checking of the said truck, 330 numbers of cartons containing Phensedyl cough syrup was found therefrom. Total 33,000 bottles of Phensedyl cough syrup with each bottle containing 100 milliliter quantity of cough syrup were found in the said vehicle. The net weight of cough syrup recovered was found to be 3,993 kgs. 5. On receipt of the said FIR, Bazaricherra P. S. Case No. 106/2023 under Section 21(c)25/29 of the NDPS Act, 1985 and investigation was initiated. 6. After completion of the investigation, charge-sheet was laid against three (03) numbers of accused persons, including the present petitioner under Section 21(c)/25/29 of the NDPS Act, 1985 and total eight (08) prosecution witnesses were listed in the charge-sheet. 7. Mr. A. Ahmed, the learned counsel for the petitioner has submitted that the petitioner is the co-driver of the vehicle, which was seized in connection with this case and from where the seized contrabands were recovered. He has however, submitted that the petitioner was unaware Page No.# 3/9 about the fact that the vehicle, of which he was the co-driver also contained cough syrup bottles. 8. The learned counsel for the petitioner has submitted that as per the challan of the consignment, the petitioner was carrying J.K. Dairy Paneer in the vehicle, which is a food item. He submits that there were 1,318 cartons in the consignment, out of which 330 cartons were later found to contain Phensedyl cough syrup, about which the petitioner was not aware. He further submits that the consignment was claimed by the authorized person of DHTC Logistics Limited. 9. The learned counsel for the petitioner has submitted that the petitioner was not having conscious possession of contraband, which was recovered from the vehicle. 10. He further submits that the petitioner has been languishing behind the bars for more than one (1) year nine (9) months, however, till date out of eight (8) listed prosecution witnesses, only three (3) have been examined and there is no likelihood of culmination of the trial at the earliest. He therefore, submits that on the ground of prolonged incarceration, the petitioner is entitled to get bail. 11. 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 offences 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). Page No.# 4/9 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 (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. 12. On the other hand, Mr. K. K. Das, 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. Page No.# 5/9 13. He also submits that all the three (3) witnesses, who have been examined are independent witnesses and they have implicated the present petitioner. He further submits that though, the scanned copy of the case record which was called for does not contain the deposition of witnesses, the copy of the same has been provided to him by the learned counsel for the petitioner. 14. He further submits that three witnesses have already been examined, and the remaining prosecution witnesses will be examined at the earliest. Considering the quantity of contraband seized, he submits that this is not a fit case for granting bail to the present petitioner. 15. I have considered the submissions made by learned counsel for both sides and have perused the materials available on record including the scanned copy of the records of Bazaricherra P. S. Case No. 106/2023. 16. 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”. 17. 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.” Page No.# 6/9 18. 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.” 19. 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 Page No.# 7/9 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.” 20. In the instant case also, the present petitioner has been detained behind the bars for more than one (01) year and nine (09) months, and only three (03) out of eight (08) listed prosecution witnesses have been examined and there is unlikelihood that the trial would culminate soon. 21. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited hereinabove, 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. 22. 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 Page No.# 8/9 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. 23. In view of the above, the petitioner, namely, Abrar @ Abram, is allowed to go on bail of Rs. 1,00,000/- (Rupees One 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 with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No.47/2023, which is pending in the Court of the learned Special 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; vi. That the petitioner shall not commit any offence while on bail; vii. That the petitioner shall appear before the Officer-in-Charge of Bazaricherra Police Station once in every fortnight till the pendency of the Special (NDPS) Case No.47/2023; Page No.# 9/9 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. 24. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant