Page No.# 1/7 GAHC010027112025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./401/2025 SHIFAR UDDIN @ SHIPAR UDDIN S/O LATE RAKIB ALI R/O VILL-LAKHIPUR P.S. PATHARKANDI DIST.KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM TO BE REPRESENTED BY THE PUBLIC PROSECUTOR , ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,U U KHAN,MR. A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 07.03.2025 1. Heard Mr. M. A. Choudhury, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Shifar Uddin @ Shipar Uddin, who has been detained behind the bars since 04.08.2023 (for more than 1 year and 7 months) in connection Page No.# 2/7 with Special (NDPS) Case No. 100/2023 corresponding to Nilambazar P.S. Case No. 140/2023 under Sections 21(C)/25/29 of the NDPS Act pending in the Court of learned Special Judge, Karimganj. 3. The gist of accusation in this case is that on 03.08.2023 Dipjyoti Malakar, SI of Police had lodged an FIR before the Officer-in-charge of Nilambazar Police Station, inter alia, alleging that on 03.08.2023 at about 12:00 noon, the informant received an information through BSF G Branch that a white colour Alto car bearing Registration No. AS-10-G-0213 carrying huge quantity of drugs from Barigram to Nilambazar via N.H. No. 8, a police team was constituted and a naka was organized at Kayasthagram Bazar at N.H. No. 8, at around 1:20 PM, a white colour Alto car bearing Registration No. AS-10-G-0213 coming from Barigram side to Nilambazar via N.H. No. 8 was intercepted. On seeing the police, two of the occupants of the said vehicle fled away. However, the petitioner Shifar Uddin was apprehended. 4. During search of the said vehicle, 768 grams of suspected heroin was recovered therefrom. On receipt of the said FIR, Nilambazar P.S. Case No. 140/2023 was registered and investigation was initiated. Ultimately, on completion of investigation, charge-sheet was laid on 31.12.2024 against the three accused persons including the present petitioner under Sections 21(C)/25/29 of the NDPS Act. 5. The learned counsel for the petitioner has submitted that the petitioner is a car mechanic by profession and he was requested by the owner of the car, namely, Dilwar Hussain to see as to whether there was any mechanical defect in the car and, therefore, he boarded on the car. However, when the said car was searched, the owner fled away. It is submitted by the learned counsel for the petitioner that the petitioner was not knowing as to Page No.# 3/7 what was being carried in the said car. 6. The learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars since more than one year, seven months. However, till date, even charges are not yet framed and, therefore, there is unlikelihood that the trial will culminate soon. He, therefore, submits that the petitioner is entitled to get bail on the ground of prolonged incarceration. 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 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. 8. I have considered the submissions made by learned counsel for both the sides and have perused the materials available on record including the scanned copy of the Nilambazar P.S. Case No. 140/2023. 9. 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”. 10. 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 Page No.# 4/7 override the statutory embargo created under Section 37(1) (b)(ii) of the NDPS Act.” 11. 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.” 12. 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 Page No.# 5/7 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.” 13. In the instant case also, the petitioner has been detained behind the bars for more than 1 year and 7 months and even the charges are yet to be framed. 14. 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. 15. 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. Page No.# 6/7 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. 16. In view of the above, the petitioner, namely, Shifar Uddin @ Shipar Uddin, 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, Karimganj with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 100/2023, which is pending in the Court of the learned Special Judge, Karimganj; 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; Page No.# 7/7 vii. That the petitioner shall appear before the Officer-in-Charge of Nilambazar Police Station once in every fortnight till the pendency of the Special (NDPS) Case No. 100/2023; 17. 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. 18. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant