Page No.# 1/6 GAHC010045692025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./603/2025 RAHUL PRASAD S/O- LATE SANJIT PRASAD, R/O- JHAGRARPAR, WARD NO-16 (RAIL GATE), P.S- DHUBRI, DIST- DHUBRI, ASSAM VERSUS THE STATE OF ASSAM REP BY PP ASSAM Advocate for the Petitioner : TAWHID LASKAR, MR. D K AGARWALA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 05.04.2025 1. Heard Mr. D.K.Agarwala, learned counsel for the petitioner Rahul Prasad who has filed this application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with prayer for bail since he is behind bars from 18.08.2023 in connection with Special Case No.335/2023 arising out of Gauripur Page No.# 2/6 PS Case No. 323/2023 under Sections 22(c)/29 of NDPS Act. 2. Heard learned Additional Public Prosecutor Mr. D.P.Goswami for the respondent State 3. It is submitted that the petitioner is behind bars for more than 1 year 7 months and considering the trend of decisions of co-ordinate Bench of this Court, the petitioner deserves bail. 4. It is submitted that the rigours of Section 37 of the NDPS Act does not fetter the bail prayer as one of the condition is fulfilled as there is no evidence against the petitioner despite recording of evidence of 7 witnesses. It is submitted that 13 witnesses are enlisted in the charge sheet and only 7 witnesses have been examined and the possibility of culmination of trial appears to be remote considering the slow pace of trial. It is further submitted that the petitioner was forwarded to custody only on the statement of co-accused which is contravention against the decision of the Hon’ble Supreme Court in the case of Tofan Singh –vs- State of Tamil Nadu reported in (2021) 4 SCC 1 wherein it has been observed that confessional statement regarding Section 67 of the NDPS Act shall remain inadmissible even at the stage of consideration of bail. 5. The petitioner has prayed for bail on the ground of parity as the co- accused has been enlarged on bail by the learned trial court. It is also submitted that the trial has been vitiated as Section 42 of the NDPS At has not been complied with. 6. On the other hand, learned Addl.Public Prosecutor has cited a decision of a co-ordinate Bench of this court in Bail Application No.2438/2024 wherein vide order dated 28.11.2024 passed in Daniel Kitharee -vs- State of Assam, it Page No.# 3/6 has been held that: “12) In the said context, reference may be made to the relevant observation of the Supreme Court of India in the case of Satender Kumar Antil v. Central Bureau of investigation, (2022) 0 Supreme(SC) 588: AIR 2022 SC 3386, which is quoted below: “Where undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under-trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.” 13) In light of the said judgment of the Supreme Court of India in the case of Satender Kumar Antil (supra), with all due respect to the decision in the case Shariful Islam @ Sharif (supra), Nitish Adhilkary @ Bapan (supra), Mohammad Salman Hanif Shaikh (supra) and Muskan (supra), cited by the learned counsel for the petitioner, the law, as laid down by the Supreme Court of India, in the case of Satender Kumar Antil (supra), is not seen to have been expressly or impliedly in any manner. Hence, as principles of law was not laid down in the cases cited by the learned counsel for the petitioner, the Court is of the considered view that in those cases bail was granted on the basis of the facts of those cases. * * * * * * * * * “15) The Court is inclined to take note of the observations of the Supreme Court of India in the case of Hira Singh & Anr. v. Union of India & Anr., (2020) 0 Supreme(SC) 320, decided by a 3-Judge Bench, which is extracted below:- 8.5. The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. As observed herein above, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvassed on behalf of the accused and the intervener that quantity of neutral Page No.# 4/6 substance(s) is not to be taken into consideration and it is only actual content of the weight of the offending drug, which is relevant for the purpose of determining whether it would constitute "small quantity or commercial quantity", cannot be accepted.” * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 22) Accordingly, in light of the discussions on the point no. (a), the Court is inclined to hold that despite being in custody for last 763 days [i.e. 2 (two) years 1 (one) month 1 (one) day], since the date of his arrest, and despite the fact that time estimated time by when the trial may be over cannot Page No.# 14/18 be said at this premature stage, the petitioner is not yet become entitled to be enlarged on bail. * * * * * * * * * 24) In the case of Narcotics Control Bureau v. Mohit Aggarwal, AIR 2022 SC 3444, a 3- Judge Bench of the Supreme Court of India had observed as follows:- 11. It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub- section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail. 12. The expression “reasonable grounds” has come up for discussion in several rulings of this Court. In Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549 a decision rendered by a Three Judges Bench of this Court, it has been held thus:- 7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Page No.# 5/6 [emphasis added] 13. The expression 'reasonable ground' came up for discussion in State of Kerala & Ors. v. Rajesh and others, (2020) 12 SCC 122 and this Court has observed as below: 13. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” [emphasis added] 14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. 15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. 17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage. 25) Thus, in light of the discussions above, the Court is inclined to hold that before the petitioner can be enlarged on bail, he will have to satisfy the twin requirement of section 37 of the NDPS Act, which he has not been able to.” 7. I have considered the submissions at the Bar. 8. I have also scrutinized the trial court records. Page No.# 6/6 9. At least at this stage, it cannot be considered that trial has been procrastinated by the State or by the Court. 7 witnesses have already been examined within a period of 1 year 7 months. 10. For an offence of serious nature, the length of detention and the ground of parity cannot be a ground for bail. 11. Argument of the learned counsel for the petitioner that the rigours of Section 37 of the NDPS Act does not act as an embargo cannot be accepted at this juncture. 12. In the wake of the foregoing discussions, petition is rejected at this stage. However, liberty is granted to the petitioner to file subsequent bail petition if the case is procrastinated by the State or by the Court. 13. The Bail Application stands disposed of. JUDGE Comparing Assistant