Page No.# 1/8 GAHC010121312026 2026:GAU-AS:10925 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1616/2026 JOHOROL HOQUE S/O FAKAR UDDIN, R/O VILLAGE SHERPUR I, P.S. PATHARKANDI, DISTRICT SRIBHUMI, ASSAM. VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR SISHIR DUTTA, MR. S SHOME,MS S MOCHAHARI,MR. S DUTTA Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE SHAMIMA JAHAN O R D E R 05.08.2026 Heard Mr. S. Dutta, learned counsel for the petitioner. Also heard Mr. R.R. Kaushik, learned Addl. P.P. appearing for the State. Page No.# 2/8 2. By this application, the petitioner has prayed for bail, in connection with Special NDPS Case No. 52/2025 under Sections 21(c)/25/29 of the NDPS Act, 1985, pending before the Special/Sessions Court, Sribhumi. 3. The FIR in connection with which, the petitioner was arrested was lodged on 25.05.2025 by the informant, i.e. the Sub-Inspector of Patharkandi P.S., stating inter-alia that on an information that a bike was coming towards a particular area, the police personnel conducted a search operation and the bike bearing registration no. AS-10-D-5548 was intercepted and the rider as well as the pillion rider was detained and on checking, the bag that the pillion rider was carrying the police found suspected contraband. 4. It is further stated that on spot verification, the pillion rider that is the petitioner admitted that there are drugs kept inside the bag and upon a search being made in presence of witnesses after complying with the provisions of law, contrabands were found and upon weighing the same, suspected heroin of 324 grams was recovered. Thereafter, the police seized the articles and arrested both the accused persons, one being the rider and the other the petitioner, who was the pillion rider. 5. The learned counsel for the petitioner submits that the petitioner was arrested on 25.05.2025 and till date, the petitioner has been inside the jail. He further submits that the police, upon completion of the investigation, had submitted charge-sheet on 24.09.2025 and that after completion of necessary procedures of law, the charges were framed against the petitioner on 12.11.2025 and the learned Sessions Judge took up the matter on 05.01.2026 and fixed for evidence. He thereafter submits that summons were issued by the trial Court and different dates were fixed for appearance of the prosecution witnesses, but none of the prosecution witnesses, which were eight in numbers, Page No.# 3/8 as arrayed in the charge-sheet, were examined till date. He had placed the order-sheet showing that the summons were issued, but the prosecution witnesses have not appeared. He as such submits that on the ground of prolonged incarceration and absence of any chance of completion of the trial within a reasonable period, the bail be granted to the petitioner. 6. To substantiate his argument, he has placed judgments delivered by the Honourable Apex Court as follows:- (i) Union of India versus K.A. Najeeb reported in (2021) 3 SSC 713, by which, the Apex Court had observed that the statutory restrictions, imposed by the statute per-se does not oust the power to be exercised under the Constitution of India. It is also held by the Apex Court that restrictions under a statute as well as power to be exercised under the Constitutional jurisdiction shall be at best harmonized. However, it has also been stated that if there is no likelihood of the trial being completed within a reasonable time and the period of incarceration undergone by the accused person exceeds the substantial part of the sentence bail should be granted to the accused person. (ii) The order delivered by the Supreme Court in Rajadurai Vs. The State of Tamil Nadu in Special Leave Petition (Crl.) No.4729/2026, by which, the Apex Court in the facts of the said case had ordered for bail of the petitioner on the ground that charges has been framed but not a single witness was examined by the prosecution. (iii) Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another, reported in 2024 INSC 645, by which, the Hon’ble Supreme Court had observed that there is no bar to protect the fundamental right of an accused person under Article 21 of the Constitution of India and that the Page No.# 4/8 prosecuting agency should not oppose the plea for bail only on the ground that the crime committed is serious. 7. On the other hand, Mr. R.R. Kaushik, learned Addl. P.P. for the State submits that rigors of Section 37 of the NDPS Act, 1985, cannot be done away with while granting bail to the accused person. He submits that the Court should take into account the twin conditions prescribed under Section 37 of the NDPS Act, before granting bail to the accused person. He submits that the petitioner has not been incarcerated for long since he was arrested only in the month of May, 2025 and it is not a case that he has been languishing in jail for a long time. 8. He also submits that it is not seen in the instant case, that there is no likelihood that the trial will not finish within a reasonable period of time. He submits that although five/six dates had gone by and the prosecution witnesses did not appear but on few dates some applications were filed by the co-accused and that has also resulted in delay in the trial. He further submits that in the instant case there are only 8(eight) witnesses to be examined and as such, the trial, according to the learned counsel, will not take beyond a reasonable period of time. He also submits that although Article 21 of the Constitution of India, has to be taken into account but the statutory provision under the NDPS Act, can also not be given a go by. 9. To substantiate his argument, he had referred to the following cases:- (i) Union of India versus Vigin K. Varghese reported in 2025 LiveLaw (SC) 1101, by which, the Apex Court had held that twin conditions should be fulfilled before granting bail to an accused person. (ii) State Of Punjab Versus Balraj Singh @ Billa, reported in 2026 Page No.# 5/8 INSC 618, a judgment delivered by the Honourable Apex Court by which, it was held that in the facts of the case, being in the jail for one year or so cannot be considered as long incarceration and that what would be the prolonged incarceration has not been settled by the Apex Court. It has also been observed that there should not be any conflict between the sovereignty of the country and personal liberty. (iii) State of Punjab versus Sukhwinder Singh @ Gora reported in 2026 INSC 411, by which, the Apex Court had observed that there has to be a satisfaction of the Court on the twin conditions provided under Section 37 NDPS before granting bail to the accused. (iv) Mohammad Raqibuddin Vs. Union of India, a judgment delivered by this Court in Bail Application No.07/2024, by which, this Court had held that although the under trial has a right to speedy trial but the provision contained under Section 436A Cr.P.C cannot be ignored. 10. Mr. Dutta, learned counsel for the petitioner in his reply had distinguished judgments placed by the learned Addl. PP with regard to Balraj Singh @ Billa (supra) and stated that in order to get a satisfaction for the second part of the twin tests prescribed under Section 37 of the NDPS Act, antecedents of the accused person has to be shown as has been stated in the said judgment in paragraph 18. He has also distinguished the judgment placed by the learned Addl. P.P, that is Sukhvinder Singh @ Gora (supra) and he stated that it is provided in the said judgment that antecedents of the accused person has to be seen in order to satisfy the second condition in the twin test. 11. I have heard the learned counsels and have gone through the records. 12. As far as the merit of the case is concerned, it is noticed that the police Page No.# 6/8 personnel had intercepted the bike, on which, the petitioner was riding as a pillion and from his backpack contrabands were recovered and the same was found to be heroin weighing 324 grams, which is a commercial quantity. However, it has been stated in the petition more specifically in paragraph-10 that the bag was handed over to the petitioner by one Abul Hussain and that the petitioner was instructed to deliver it to another person and while he was on his way to deliver the same to the other person he was caught. As such, the petitioner submits that he did not know what the bag contained and it was not in his conscious possession. However, the said fact is not discernible from any other records of the case. 13. It is a settled position of law that before granting bail to the accused person, the twin conditions provided under Section 37 NDPS Act has to be satisfied and they are:- (i) the Court has to be satisfied that there are reasonable grounds for believing that the accused person is not guilty of the offence. (ii) the Court has to be again satisfied that the accused person will not commit any offence while he is on bail. 14. As far as the first condition is concerned, it has been held by the Hon’ble Supreme Court that the reasonable grounds mentioned in the said section should be more than the prima facie ground and as it has been stated above, the contrabands were found from the possession of the petitioner but the petitioner has taken a ground that the bag was given to him by one Abul Hussain, which again is a matter of trial. 15. As far as the second, amongst the twin conditions laid down under Section 37 NDPS is concerned, it is seen that no antecedents of the petitioner Page No.# 7/8 was stated by the prosecution in the forwarding report or any other documents neither it could be placed by the learned Addl. P.P during hearing of this case. 16. This Court, however, cannot loose sight of the fact that Article 21 of the Constitution of India is available to the petitioner and it is also seen that the petitioner has been arrested more than a year back, that is on 25.05.2025 and although, the trial of the case started after framing of charge on 12.11.2025, the same had not proceeded much inasmuch as none of the prosecution witnesses, that is 8(eight) nos. of them, which can include more during the trial, were examined till date by the trial Court. It has been specifically held by the Honourable Supreme Court that presence of statutory restrictions cannot par se oust the ability of the Constitutional Courts to grant bail on violation of the provisions enshrined under the Constitution of India. 17. Admittedly, in this case, the petitioner has been inside the jail since 25.05.2025 and not a single witness has been examined since the trial started. This Court, therefore, finds it fit that the petitioner be released on bail on furnishing of a bail bond of Rs.30,000/- with one local surety of the like amount to the satisfaction of the Sessions Judge, Sribhumi, on the following conditions: (i) He will appear before the trial court as and when called for without fail. (ii) He will not influence the witnesses connected with the case. (iii) He will not tamper with the evidence at any point of time. (iv) He will not go and associate with other co-accused of this case or any other persons or do any illegal activities during the period of bail. 18. If he is found to have violated any of the conditions, the bail will be cancelled by the concerned Court. Page No.# 8/8 19. This bail application stands allowed and disposed of. JUDGE Comparing Assistant