Page No.# 1/6 GAHC010061782025 2025:GAU-AS:6313 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./897/2025 FAZAR ALI AND ANR S/O- LATE MAJID MIA, VILL- THAKURMURA, PS SUNAMURA, DIST- SEPAHIJALA, TRIPURA, PIN- 799102 2: RAKESH GAJI S/O ABDUL MUTALAB VILL- TAMSABARI UTTARPARA P.S. SUNAMURA DIST.SEPAHIJALA DIST.SEPAHIJALA TRIPURA PIN-79910 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR SISHIR DUTTA, MR S DUTTA,MS K BORAH,MS S MOCHAHARI Advocate for the Respondent : PP, ASSAM, Page No.# 2/6 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 20-05-2025 Heard Mr. S. Dutta, learned counsel for the petitioners and Mr. B. Sharma, learned Additional Public Prosecutor, Assam for the State. 2. The petitioners, namely, (i) Fazar Ali, son of late Majid Mia, resident of Village- Thakurmura, P.S.-Sunamura, District-Sepahijala, Tripura, Pin No.799102 and (ii) Rakesh Gaji, son of Abdul Mutalab, resident of Village-Tamsabari, Uttarpara, Police Station-Sunamura, District-Sepahijala, Tripura, Pin No.799102, have filed this application under Section 483 BNSS, 2023 on 20.03.2025 praying for their bail in Special (NDPS) Case No. 79/2023, arising out of Bazarichera Police Station Case No. 138/2023, registered under Sections 20(b)(ii)(C)/25/29 of the NDPS Act, 1985, corresponding to GR No. 1449/2023, in which, they were arrested on 08.07.2023 and are in custody since then. 3. The petitioners contended that as on April-2025, only one prosecution witness have been examined, out of 10 prosecution witnesses, named in the charge-sheet. 4. As such, considering their length of detention in custody and their prolonged detention, the petitioners should be considered for their bail in said Special (NDPS) Case No. 79/2023, arising out of Bazarichera P.S. Case No. 138/2023. 5. By order dated 26.03.2025, the Court called for the records of said Special (NDPS) Case No. 79/2023 as well as the records of said Bazarichera P.S. Case No. 138/2023 from the Court of learned Special Judge (NDPS)-cum-Sessions Judge, Sribhumi (Karimganj). 6. Perused the records of said Special (NDPS) Case No. 79/2023. 7. Matter relates to recovery of 82 numbers of packets, each containing 20 kgs of Page No.# 3/6 Cannabis from the secret chamber of 14 Wheeler Dumper Truck bearing Registration No.TR-01-AU-1701, that was driven by the petitioner No.1 with co driver, petitioner No.2 during Naka Checking on 08.07.2023 around 10:15 AM at Churaibari under Bazarichera Police Station, while the said Dumper Truck was coming from Tripura side. 8. The petitioners were accordingly arrested on 09.07.2023 in said Bazarichera P.S. Case No. 138/2023, registered under Sections 20(b)(ii)(C)/25/29 of the NDPS Act, 1985, corresponding to GR No. 1449/2023 and was produced before the Court of learned Chief Judicial Magistrate, Karimganj on 09.07.2023 itself. 9. The FSL report dated 07.09.2023 pertaining to the seized substances recovered from the said 14 Wheeler Dumper Truck bearing Registration No.TR-01-AU-1701, driven by the petitioners gave positive test for Cannabis. 10. After completion of the investigation of the case, Charge Sheet in said Bazarichera P.S. Case No. 138/2023 was filed on 31.10.2023 vide Charge Sheet No. 159/2023 under Sections 20(b)(ii)(C) of the NDPS Act, 1985 against the petitioners. 11. After filing of the charge sheet in said Bazarichera P.S. Case No. 138/2023 on 31.10.2023 corresponding to GR No. 1449/2023, the said case was re-registered and re-numbered as Special (NDPS) Case No. 79/2023 before the Court of learned Special Judge (NDPS)-cum-Sessions Judge, Sribhumi (Karimganj). Thereafter, the Court of learned Special Judge (NDPS)-cum-Sessions Judge, Sribhumi (Karimganj) by order dated 02.01.2024 framed charge under Sections 20(b)(ii)(C)/25/29 of the NDPS Act against both the petitioners and fixed the matter for evidence on 01.04.2024. 12. From the records of the case, it is seen that on 01.04.2024 the prosecution witnesses were absent and accordingly summons were issued, fixing the matter on 14.05.2024. 13. It is seen that on 14.05.2024, one prosecution witness was present, but his evidence could not be recorded as the concerned Presiding Officer was on training. As such, the matter was fixed on 09.07.2024. Page No.# 4/6 14. On 09.07.2024, 3 (three) prosecution witnesses were present for their evidences, but their evidences could not be recorded on the said date and the matter was fixed on 07.09.2024. 15. On 07.09.2024, one of the prosecution witnesses was present and he was examined as PW-1 and was thoroughly cross-examined by the defence (on behalf of the petitioners). Thereafter, the matter was fixed on 29.11.2024 for evidence of the remaining witnesses. 16. On 29.11.2024 the matter was taken up for consideration of the bail of the petitioners filed by them. After hearing the learned counsels for the parties, the bail prayer of the petitioners was rejected by the learned Special Judge (NDPS)-cum- Sessions Judge, Sribhumi (Karimganj) and as such, 07.02.2025 was the date fixed for evidence. 17. On 07.02.2025, one prosecution witness was present, but his evidence could not be recorded as the concerned Presiding Officer was on training and thereafter, the matter was fixed on 02.05.2025 for recording of evidences of prosecution witnesses. 18. On being enquired, the learned counsel for the petitioners could not state anything as to whether any evidence was recorded on 02.05.2025 or not. 19. On being enquired, the Registry of this Court informed that on 02.05.2025, no witnesses were examined and the next date is fixed on 27.05.2025. 20. It is already noted above that the case in hand relates to recovery of 82 numbers of packets, each containing 20 kgs of Cannabis from the secret chamber of 14 Wheeler Dumper Truck bearing Registration No.TR-01-AU-1701, that was driven by the petitioners. 21. Moreover, from the records of the case it is seen that the PW-1, one of the seizing independent witness indicated the recovery of such Cannabis from the secret chamber of the said Dumper Truck bearing Registration No.TR-01-AU-1701, in which Page No.# 5/6 both the petitioners were found present inside the said Dumper Truck and he indicated the recovery of such Cannabis from the said Dumper in his presence and in presence of other witnesses. 22. The Hon’ble Apex Court in the case of X Vs. State of Rajasthan, reported in (2024) INSC 909 = 2024 STPL 12498 SC have held that— “In serious offences once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court should be loath in entertaining the bail application of an accused of the case.” 23. Their Lordships in said X Vs. State of Rajasthan further held that— “15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. 16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed.” 24. In the case in hand it is already noticed that after filing the FIR on 08.07.2023, the petitioners were arrested on 08.07.20223 and the charge-sheet in the case was submitted on 31.10.2023. Thereafter, charge under Section 20(b)(ii)(C)/25/29 of the NDPS Act was framed against the accused petitioners on 02.01.2024. 25. For the reasons above and considering the decision of the Hon’ble Apex Court in the Case of X Vs. State of Rajasthan (supra), the Court is of the opinion that considering the date of detention of the petitioners in custody since 08.07.2023, it Page No.# 6/6 cannot be said that the right of the accused petitioners to have a speedy trial of the case has been infringed. 26. For the reasons above this Court of the view that considering their detention in custody since 08.07.2023, the petitioners, named above, are not entitled for their bail in said Special (NDPS) Case No. 79/2023, arising out of Bazarichera Police Station Case No. 138/2023, corresponding to GR No. 1449/2023 presently pending before the Court of learned Special Judge (NDPS)-cum-Sessions Judge, Sribhumi (Karimganj). 27. Accordingly, this bail application of the petitioners, (i) Fazar Ali, son of late Majid Mia and (ii) Rakesh Gaji, son of Abdul Mutalab in said Special (NDPS) Case No. 79/2023, arising out of Bazarichera Police Station Case No. 138/2023, corresponding to GR No. 1449/2023 stands rejected. JUDGE Comparing Assistant