Page No.# 1/8 GAHC010043462025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./571/2025 NITIAN SARKAR @ NATAI SARKAR S/O- LATE CHANDRADHAR SARKAR, R/O- CHAKMAGAHT, PS TELIAMURA, DIST- KHOWAI, TRIPURA 2: NITU SARKAR S/O TARA CHAND SARKAR R/O VILL- TELIA MURA CHAKMAGHAT P.S. TELIAMURA DIST. KHUWAI TRIPUR VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, U U KHAN Advocate for the Respondent : PP, ASSAM, Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 6.03.2025 1. Heard Mr. A. Choudhury, the learned counsel for the petitioners. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor, appearing for the State of Assam. 2. This application, under Section 483 of BNSS, 2023has been filed by the petitioners, namely, (1) Nitian Sarkar @ Natai Sarkar, and (2) Nitu Sarkar, who have been detained behind the bars since 23.06.2023 (for more than 1 years 8 months) in connection with Special (NDPS) Case No. 74/2023 arising out of Bazaricherra Police Station Case No. 130/2023 registered under Sections 21(c)/25/29 of the NDPS Act, 1985 the pending in the Court of Learned Sessions Judge, Karimganj 3. The gist of accusation in this case is that on 22.06.2023, one Jyoti Prasad Das, SI of Police, had lodged an FIR before the Officer-In-Charge of Bazarichetra Police Station, inter-alia, alleging that an information was received on 22.06.2023 regarding trafficking of huge quantity of prohibited drugs in a Maruti Alto vehicle from Mizoram towards Assam. 4. Accordingly, a naka checking was arranged at Nilantapur near Shiv Mandir. At about 1500 hours, one vehicle bearing registration No. AS10F1205 was intercepted and the driver of the said vehicle namely, Khalid Hussain was found inside the vehicle. During interrogation, Khalid Hussain informed the police team that he was escorting one vehicle bearing registration number AS-01-BW-8277, which was coming from Mizoram towards Assam with Page No.# 3/8 concealed drugs therein. After some time, the aforesaid vehicle was also intercepted. 5. In the said vehicle, four persons, namely, Nitian Sarkar, Talab Hussain, Nitu Sarkar and Tahir Amin were found. On search of the vehicles, 3024.67 grams of suspected heroin was recovered therefrom. After completion of the investigation, charge sheet was laid, on 15.12.2023, under Section 21(c)/25/29 of the NDPS Act, 1985 against the present petitioner and other accused persons. 6. The learned counsel for the petitioners has submitted that the petitioners have been detained behind the bars for more than 1 year and 8 months. However, even the charges are not yet framed and it is unlikely that the trial would culminate soon and therefore, he submits that the petitioners are entitled to get bail on the ground of prolonged incarceration. 7. In support of his submission, the learned counsel for the petitioners 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). 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). Page No.# 4/8 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). vii. And a few other similar rulings. 8. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioners 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 petitioners which do not justify the grant of bail to the present petitioner at this stage. 9. 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 Bazaricherra Police Station Case No. 130/2023 10. 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”. 11. 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 Page No.# 5/8 the statutory embargo created under Section 37(1) (b)(ii) of the NDPS Act.” 12. 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.” 13. 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.# 6/8 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.” 14. In the instant case also, the petitioners have been detained behind the bars for more than 1 years and 8 months and not even a single witness has been examined. Even the charges are yet to be framed. 15. 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 their 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 he would be entitled to get bail on the ground of prolonged incarceration only. 16. Under the facts and circumstances of this case, in the considered opinion of this Court, the long incarceration of the petitioner has, in the Page No.# 7/8 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. 17. In view of the above, the petitioners, namely, (1) Nitian Sarkar @ Natai Sarkar, and (2) Nitu Sarkar, 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 Sessions Judge, Karimganj with the following conditions: i. That the petitioners shall cooperate in the trial of Special (NDPS) Case No. 74/2023, which is pending in the Court of the learned Sessions Judge, Karimganj; 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 petitioner; iv. That the petitioners shall provide their 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 petitioners 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 petitioners shall not commit any offence while on bail; Page No.# 8/8 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. 74/2023; 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. 18. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant