Page No.# 1/9 GAHC010036372025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./540/2025 AMINUR ISLAM @ SUKUR @ SHAKUR MIYAN S/O. JHARU MIAH, RESIDENT OF- 296 SOUTH CHANDRAPUR, TOWN/VILLAGE- AGARTALA, P/S. EAST AGARTALA, SUB DIVISION- SADAR, DISTRICT- WEST TRIPURA, TRIPURA-799004. VERSUS THE UNION OF INDIA REPRESENTED BY NARCOTICS CONTROL BUREAU THROUGH INTELLIGENCE OFFICER, GUWAHATI ZONAL UNIT, GUWAHATI, ASSAM Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,J SINGPHO Advocate for the Respondent : PP, ASSAM, MS. N KAKATI, STANDING COUNSEL, NCB BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER 29.04.2025 Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel, NCB. 2. This is an application under Section 483 of the Bharatiya Nagarik Suraksha Page No.# 2/9 Sanhita, 2023 (hereinafter referred to as the ‘BNSS, 2023’) seeking grant of bail to the accused petitioner, i.e. Aminur Islam @ Sukur @ Shakur Miyan, who has been arrested on 16.06.2021 in connection with NDPS Case No. 108/2020 corresponding to NCB Crime No. 10/2020 registered under Section 20(b)(ii)(c) & 29 of the NDPS Act, 1985 pending before the learned Additional Sessions Judge No. 2, Kamrup (M). 3. The facts of the prosecution case is that on 15.06.2020 at about 04:00 p.m, the concerned Junior Intelligence Officer of NCB, Guwahati, upon receiving an information from a reliable source that three persons namely Md. Kari, Ghutun Day and Ravindra Ray will be carrying a huge quantity of Ganja by concealing the same inside the cabin of a container truck bearing registration No. CG08L-3066, the NCB team after reaching the said location, apprehended the said truck and while searching the said vehicle, found 36 packets of Ganja was kept concealed in the cavity made behind the driving seat of the said vehicle, weighing approximately 484.300 kg. Accordingly, a case was registered and the three persons named above were arrested and thereafter, the petitioner was also arrested on 16.03.2021. Accordingly, the instant bail application has been filed. 4. Mr. M. Biswas, learned counsel for the petitioner submits that the petitioner has been languishing in custody since last 4 years 1 month and 14 days (approximately 1506 days). He further submits that charge was famed on 31.07.2023 against the petitioner and the other co-accused and out of 10 Prosecution Witnesses, only 5 Prosecution Witnesses have been examined till date by the Trial Court. Page No.# 3/9 5. He further submits that the materials available on record would indicate that no contraband articles have been recovered from the possession of the petitioner but merely on the statement of the co-accused, the petitioner has been arrested in connection with the instant case. 6. He further submits that the grounds of arrest, which is the Constitutional and Fundamental Rights of the petitioner to be informed under the Constitution of India has not been informed to the petitioner by the arresting authority at the time of his arrest. He accordingly submits that the petitioner is liable to be released forthwith. 7. He further submits that the petitioner being in custody for almost 4 years 1 month and 14 days, the Fundamental and Constitutional Rights under Article 21 of the Constitution of India is also infringed and accordingly, on that account alone, he is liable to be released on bail. In support of the aforesaid submission, he relies upon the following decisions of the Apex Court in the cases of:- a) Rabi Prakash Vs. State of Odisha, reported in 2023 SCC OnLine SC 1109. b) Dheeraj Kumar Shukla Vs. State of Uttar Pradesh in SLP (Crl.) No. (s) 6690/2022. 8. He further submits that by applying the aforesaid principles enumerated by the Apex Court to the effect that in the event there is prolonged incarceration which militates against the most precious Fundamental Rights guaranteed under Article 21 of the Constitution of India, the conditional liberty must override the Page No.# 4/9 statutory embargo created under Section 37 of the NDPS Act, different Co- ordinate Bench of this Court has granted bail to the accused, who have been languishing in jail for a long period of time, few of which are as follows:- a) Anil Yadav Vs. Union of India & Anr. in B.A. No. 434/2024. b) Ranjeet Mandal @ Ranjit Mandal Vs. Union of India in B.A. 3855/2024. c) Pramod Kumar Vs. Union of India in B.A. No. 434/2025. 9. Per contra, Mr. S.C. Keyal, learned Standing Counsel, NCB vehemently opposing the prayer of bail submits that the large quantity of Ganja which was recovered from the other co-accused persons was supplied by the petitioner. 10. He further submits that the daily reports available in the case records clearly reveals that the petitioner was in constant touch with the co-accused persons. He further submits that as of now, 10 out of 5 Prosecution Witnesses have been examined during trial and so far as the trial of the case is concerned, it is at the evidence stage and the next date of evidence is fixed on 08.05.2025. 11. He further submits that all the material witnesses in the instant case have been examined and the remaining witnesses consists of 2 Independent Witnesses and 3 Eye Witnesses and 2 Additional Witnesses as Nodal Officer. He further submits that so far as the Independent Witnesses is concerned, steps were regularly taken but the witnesses are not turning and regarding the Nodal Officer of Airtel and Vodafone Company is concerned, steps have been taken in Page No.# 5/9 respect of the witnesses and the next date of evidence is 08.05.2025. He further submits that as regards the 3 witnesses cited as Eye Witnesses is not essential in the case. In view of the aforesaid, he further submits that the trial of the case is at the end stage and only the evidence of the Nodal Officer is remaining. Hence, the prayer of bail is liable to be rejected. 12. He further submits that the decision of the Apex Court as relied upon by the learned counsel appearing for the petitioner are in the context of those cases and cannot be applied in the facts of the instant case, inasmuch as, the trial is likely to be concluded within a short period of time. In support of the aforesaid submission, he relies upon the decision of the Apex Court in the case of Narcotics Control Bureau Vs. Kashif, reported in 2024 SCC OnLine SC 3848. He further submits that various Co-ordinate Benches of this Court has also rejected bail application of accused persons, who have been languishing in jail for more than 5 years. In support of the aforesaid submission, he relies upon the decision of a Co-ordinate Bench of this Court in the case of Mahendra Singh Vs. Union of India in Bail Appln. No. 3130/2024. 13. I have given my prudent consideration to the arguments advanced by the learned counsels for the contending parties and have perused the materials available on record and the citations cited at the bar. 14. It appears that the petitioner has been arrested on the basis of a statement made by the co-accused. It further appears that the trial has commenced and out of 10 Prosecution Witnesses, only 5 Prosecution Witnesses have been examined. It further appears that the petitioner has been in custody for more than 4 years 1 month and 14 days. Page No.# 6/9 15. Apt to refer to the decisions of the Apex Court in the case of Rabi Prakash (supra), wherein the Apex Court in the context of Section 37 of NDPS Act has held that in a given situation where there is prolonged incarceration, the conditional liberty must override the statutory embargo created under Section 37 of the NDPS Act. Paragraph No. 4 of the aforesaid Judgment is reproduced hereunder for ready reference:- “4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. 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.” 16. Apt also to refer to the decision of the Apex Court in the case of Dheeraj Kumar Shukla (supra), wherein the Apex Court has held that even if the recovered quantity of contraband article is commercial in nature and the provisions of Section 37 of the NDPS Act may ordinarily be attracted, in a given situation when the petitioner is in custody for the last 2 ½ years, the conditions of Section 37 of the Act can be dispensed with. Paragraph 3 of the aforesaid Judgment is reproduced hereunder for ready reference:- “3. It appears that some of the occupants of the Honda City' Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that Page No.# 7/9 the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.” 17. It is apparent from the materials available in the record that it is only 5 witnesses who have been examined out of the 10 witnesses so far. It is further apparent that there is nothing available on record to indicate criminal antecedent against the petitioner. 18. Though Mr. S.C. Keyal, learned Standing Counsel, NCB has try to convince this Court that the trial is likely to conclude soon, however, considering the snail speed of the trial in which it has been going on, this Court is afraid that the said contention of the learned Standing Counsel, NCB cannot be accepted. 19. The decision of the Apex Court as referred above squarely covers the case of the petitioner, inasmuch as, the petitioner has been languishing for more than 4 years 1 month and 14 days in jail and the trial is unlikely to conclude soon and there is nothing adverse as regards the criminal antecedent of the petitioner available on record. Therefore, I have no hesitation to hold that the conditional liberty, which is provided to the petitioner under the Constitution of India must override the statutory embargo created under Section 37 of the NDPS Act. That apart, the materials available on record does not indicate that the grounds of arrest has been informed to the petitioner at the time of his arrest. It is a settled principle of law that when the basic Constitutional and Fundamental Right of the arrestee of being informed the grounds of arrest by the arresting authority is not complied, the Court has no option but to release such arrested person despite statutory restrictions, if any. Page No.# 8/9 20. In the present case as stated above, the grounds of arrest having not been intimated to the petitioner at the time of his arrest, Article 22(1) of the Constitution of India is totally infringed. Hence, the arrest is vitiated and on this count also, the petitioner is entitled to be released forthwith. 21. For the reasons stated above, but without expressing any views on the merits of the case, the petitioner is directed to be released on bail on furnishing of a bail bond of Rs. 1,00,000/- (Rupees One Lakh) only with one local surety of like amount to the satisfaction of the learned Additional Sessions Judge No. 2, Kamrup (M), subject to the following conditions:- (a) The petitioner shall not leave the territorial jurisdiction of jurisdictional learned Additional Sessions Judge No. 2, Kamrup (M), under the NDPS Act, without prior written permission from him; (b) The petitioner shall deposit his Passport/visa, etc if any, in the Court of the learned jurisdictional Additional Sessions Judge No. 2, Kamrup (M); (c) The petitioner shall not hamper with the investigation, or tamper with the evidence of the case; (d) The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and (e) The petitioner shall appear before the Investigating Police Officer once in a week until the entire investigation of the case is completed and Page No.# 9/9 as and when called by the Investigating Police Officer for the purpose of investigation of the case. 22. In view of the above, the bail application stands disposed of. JUDGE Comparing Assistant