Page No.# 1/10 GAHC010036152025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./478/2025 RUPAM DEY @ RAJU DEY AND ANR S/O LATE UTTAM KUMAR DEY RESIDENT OF 52 7 SHANTI NAGAR SARDA MAYEE VIDYAPITH TALIAMURA NAGAR PANCHAYAT PS AND PO TELIAMURA DISTRICT WEST TRIPURA TRIPURA 2: RUBEL PAL S/O SAJAL PAL HOUSE NO 4 129 WARD NO 04 NEAR BALARAM KOBRA HS SCHOOL VILLAGE AND PO MAHARANIPUR PS TELIAMURA DISTRICT WEST TRIPURA TRIPURA-79920 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL NARCOTIC CONTROL BUREAU (NCB). Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,J SINGPHO,S K DAS Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 10.03.2025 1. Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, the learned Standing Counsel for the NCB. 2. This application under section 483 of BNSS, 2023 has been filed by the Page No.# 2/10 petitioners, namely, Rupam Dey @ Raju Dey and 2. Rubel Pal who are detained behind the bars since 26.09.2022 (for more than two years, five months) in connection with NDPS Case No. 36/2023 corresponding to NCB Crime No.21/2022 under Section 20(b)(ii)(C)/28/29 of the NDPS Act, 1985 pending before the Court of learned Additional Sessions Judge No. 5, Kamrup (M) at Guwahati. 3. The gist of accusation in this case is that, on 25.09.2022, one Shri Nilotpal Kakati, Intelligence Officer, Narcotics Control Bureau, Guwahati Zonal Unit, Guwahati received an information from a reliable source that one person namely Alindra Ray would be carrying huge quantity of ganja from Tripura to Bihar, which are concealed inside special made cavity above cabin of the container truck bearing registration No. CG-08-AH-9555. 4. On receipt of the aforesaid information, a team of NCB personnel was constituted. On 26.09.2022 at about 11.00 am, the above container truck was seen coming from the side of Jorabat, which was signaled to be stopped. It was found that the said truck was being driven by one Alindra Ray. On stopping of the said truck, the same was searched. During search of the truck, 517 kg of suspected ganja was recovered there from. 5. It is also pertinent to mention that during interrogation, the driver of the truck namely Alindra Ray disclosed that there were other persons associated with the transportation of illegal ganja and they were following the truck in a Maruti Ertiga vehicle bearing registration No. TR-01-BR-0249. 6. It is further stated in the complaint filed by the NCB that after getting information from Alindra Ray, the Maruti car was stopped, in which five persons were found sitting inside the car including the present petitioners. Page No.# 3/10 7. Mr. M. Biswas, the learned counsel for the petitioners has submitted that there is no reasonable ground in this case to believe that the petitioners have committed offence under Section 20(b)(ii)(C)/29 of the NDPS Act, 1985 with which they have been charged with. He submits that only material which is relied upon by the prosecution side to implicate the petitioners are the statement recorded under Section 67 of the NDPS Act, 1985 as well as the call detail report (CDR) of the mobile conversation between the accused persons. 8. The learned counsel for the petitioners has further submitted that the petitioners has been languishing behind the bars for more than 2 (two) years 5 (five) months. He further submits that though the charges were framed in this case on 18.11.2023, however, till date, out of total 11 (eleven) listed prosecution witnesses, only 7 (seven) have been examined and none of them have made any incriminating statement against the petitioners. 9. The learned counsel for the petitioners has submitted that as there is no hope of culmination of the trial at the earliest and as the petitioners are languishing behind the bars for more than two years five months, they are entitled to get bail on the ground of prolonged incarceration only. 10. In support of his submission, the learned counsel for the petitioners 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). Page No.# 4/10 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. 11. On the other hand, Mr. S. C. Keyal, learned Standing Counsel, NCB has vehemently opposed the prayer for grant of bail to the petitioners on the ground that the contraband seized in this case is of commercial quantity and the embargo of Section 37 of the NDPS Act, 1985 would be applicable to this case. He submits that the statement of the petitioners recorded under Section 67 of the NDPS Act, 1985 as well as call detail report (CDR) of the telephonic conversation of the petitioners implicates them in the offence charged in this case. 12. He submits that the petitioners were having constructive possession of the seized contraband, though, nothing was recovered from the vehicle. 13. In support of his submission, Mr. S. C. Keyal, learned standing counsel, NCB has cited a ruling of the Apex Court in the case of “Rakesh Kumar Page No.# 5/10 Raghuvanshi Vs. State of Madhya Pradesh” (Criminal Appeal No. 1953/2014 decided on 16.01. 2025). 14. The learned Standing Counsel, NCB has also cited the ruling of the Apex Court in the case of “Narcotic Control Bureau -Vs- Kashif” reported in “2024 0 INSC 1045” where the Apex Court has observed that while considering an application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involving offences under NDPS Act, 1985. 15. The learned Standing Counsel for the NCB has also submitted that a provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act has also the impact on the society as a whole. It has to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act. He, therefore, submits that in the instant case as the contraband involved is of commercial quantity the embargo of Section 37 is applicable to this case and the petitioners may not be granted bail in this case. 16. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials available on record including the scanned copy of the NDPS Case No. 36/2023. 17. In the instant case the petitioners are languishing behind the bars for more than two years five months and out of 11 listed prosecution witnesses only seven have been examined till date and there appears to be no fault on the part of the petitioners for slow progress of the trial in which they are languishing behind the bars. Page No.# 6/10 18. 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”. 19. 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.” 20. 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.” 21. 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, Page No.# 7/10 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.” 22. The facts of the case cited by Mr. S.C. Keyal, learned standing counsel, NCB i.e., “Rakesh Kumar Bhagavanshi –Vs- state of Madhya Pradesh” (Criminal Appeal No. 1953/2014) are distinguishable from the facts of the instant case. In the case which has been cited, the appellant was found along with the other co- accused in a train along with the seized contraband, whereas in the instant case the seized contraband were recovered from a vehicle and the petitioner was Page No.# 8/10 driving another vehicle, which was only found following the vehicle from where the seized contraband was recovered. Moreover, in the said case the question of prolonged incarceration was not considered by the Apex Court. Every bail application has to be considered on the basis of the facts involved in that particular case. 23. It also appears that in the case of “Narcotic Control Bureau -Vs- Kashif” (supra) the main question before the Apex Court was regarding granting of bail solely on the ground of violation of the provision of Section 52A of the NDPS Act. In that case the prolonged incarceration of the petitioner was not in question. Moreover, in that case the accused was behind the bars for only one year three months whereas in the instant case the petitioners are languishing behind the bars for last more than two years five months. 24. 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 petitioners, they are 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, their 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 they will be entitled to get bail on the ground of prolonged incarceration only. 25. In the instant case the petitioners has been detained behind the bars for more than 2 years 5 months and the trial has not yet culminated and only 7 prosecution witnesses have been examined. Page No.# 9/10 26. 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, they are entitled to get bail on the ground of the infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. 27. In view of the above, the petitioners, namely, Rupam Dey @ Raju Dey and 2. Rubel Pal are allowed to go on bail of Rs.2,00,000/- (Rupees Two Lakh only) each 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 Additional Sessions Judge No. 5, Kamrup (M) at Guwahati with following conditions:- i. That the petitioners shall cooperate in the trial of NDPS Case No. 36/2023, which is pending in the Court of learned Additional Sessions Judge No. 5, Kamrup (M) at Guwahati; ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioners 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 petitioners; iv. That the petitioners shall provide their contact details including photocopies of their Aadhar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court; v. That the petitioners shall not leave the jurisdiction of the Trial Court Page No.# 10/10 without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioners shall submit their leave address and contact details during such leave before the Trial Court; and vi. That the petitioners shall not commit any offence while on bail. 28. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant