Page No.# 1/7 GAHC010050142025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./715/2025 GOLAP KHANDAKAR AND ANR SN OF SHAJAHAN KHANDAKAR, R/O VILL- FULBARI, P.O. GOMA FULBARI, P.S. TARABARI,DIST. BARPETA, ASSAM 2: SHAHANUR MIR S/OSHAHJAHAN MIR R/O VILL-FULBARI P.O. GOMA FULBARI P.S. TARABARI DIST. BARPETA ASSA VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. N J DUTTA, IMDADUL ISLAM,M RAHMAN,MR N AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 04.04.2025 1. Heard Mr. N. J. Dutta, learned counsel for the petitioners. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor for the State. 2. This is an application under Section 483 of BNSS, 2023 by the Page No.# 2/7 petitioners namely, 1. Golap Khandakar and 2. Shahanur Mir, who has been detained behind the bars since 08.01.2023 (for more than 2 years 4 months) in connection with Special NDPS Case No. 30/2023, arising out of Dillai P.S. Case No. 02/2023, under Section 21(c)/29 of the NDPS Act, 1985 pending in the Court of learned Special Judge, Karbi Anglong. 3. The gist of accusation in this case is that on 08.01.2023, one Deepak Lahon, SI of Police, had lodged an FIR before the Officer-In-Charge of Dillai Police Station, inter-alia, alleging that on receipt of an information through reliable sources regarding transportation of huge quantity of banned narcotic substance from Manipur in a vehicle, a search team was constituted, and during naka checking, a Bolero vehicle bearing registration number AS-01-MC-4996, which was coming from Dimapur side, was intercepted and the driver of the said vehicle was apprehended. 4. During search of the said vehicle, 3,358.11 grams of suspected heroin was recovered from the said vehicle, which were kept in 286 numbers of separate soap boxes. 5. On receipt of the said FIR, Dillai P.S. Case No. 02/2023 was registered and investigation was initiated. 6. On completion of the investigation, charge-sheet was laid against the present petitioner under Section 21(c)/29 of the NDPS Act, 1985. 7. The learned counsel for the petitioners has submitted that the petitioner has been detained behind the bars for more than 2 years 4 months and till date only 4 out of 8 prosecution witnesses have been examined and there is no likelihood of culmination of the trial at the earliest. 8. The learned counsel for the petitioners therefore, submits that the Page No.# 3/7 petitioners are entitled to get bail on the ground of prolonged incarceration only. 9. 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 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). 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. 10. On the other hand, Mr. R. R. Kaushik, 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 Page No.# 4/7 and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 11. He also submits that there are implicating materials against the present petitioners which do not justify the grant of bail to the present petitioners at this stage. 12. I have considered the submissions made by the learned counsel for both the sides and have produced the materials available on record including the scanned copy of the NDPS Case No. 30/2020. 13. 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”. 14. 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.” 15. 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 Page No.# 5/7 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.” 16. 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 is 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 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 Page No.# 6/7 occasioned due to no fault of his own.” 17. In the instant case also, the petitioners has been detained behind the bars for more than 2 years 4 months and only 4 out of 8 listed prosecution witnesses have been examined till date. 18. 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. 19. Under the facts and circumstances of this case, in the considered opinion of this Court, the long incarceration of the petitioners have, 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. 20. In view of the above, the petitioners, namely, 1. Golap Khandakar and 2. Shahanur Mir, 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 learned Special Judge, Karbi Anglong with the following conditions: Page No.# 7/7 i. That the petitioners shall cooperate in the trial of Special NDPS Case No. 30/2023, which is pending in the Court of learned Special Judge, Karbi Anglong; 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 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 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 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. 21. Violation of any of the above condition would be a good ground for the Trial Court to exercise its powers under Section 483(3) of the BNSS, 2023. 22. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant