Page No.# 1/5 GAHC010142792026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1942/2026 PRABHA SHANKAR TIWARI S/O. SWAMI DAYAL TIWARI R/0. 551K/252 BHILAWAN P.O. AND P.S. ALAMBAGH LUCKNOW UTTAR PRADESH PIN CODE 226005 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL NCB. ------------ Advocate for : MR. N J DUTTA Advocate for : SC NCB appearing for THE UNION OF INDIA BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 17.09.2026 Heard Mr. N.J. Dutta, learned counsel for the accused and Mr. R.K.D. Choudhury, learned Senior Counsel-cum-Dy.S.G.I., assisted by Mr. B. Mam, Page No.# 2/5 learned counsel for the respondent NCB. 2. This application, under Section 483, BNSS, 2023, is preferred by the accused Prabhu Shankar Tiwari, who has been languishing in jail hazot, in connection with NDPS Case No. 49/2022, pending before the Court of learned Special Judge, NDPS, Kamrup (M) at Guwahati, arising out of NCB Guwahati Crime No. 25/2021, registered under Sections 8(c)/21(c)/29 of the NDPS Act, 1985, for grant of bail. 3. It is to be noted here that the above noted case has been registered on the basis of one FIR, lodged by one Anil Kushwaha, Intelligence Officer, Narcotics Control Bureau, Guwahati Zonal Unit, Guwahati, on 05.09.2021. 4. The essence of allegation, made in the said complaint, is that on 05.09.2021, at about 03.00 am, near Madanpur Toll Plaza, Kamrup (R) the complainant and other staffs of NCB, acting on a tip off, intercepted one truck bearing registration No. UP 32 HN 9008, and recovered 18,989 bottles of Codeine based Phensedyl cough syrup, manufactured by Abbott Healthcare Pvt. Ltd, Village-Bhatauli, Solan, Himachal Pradesh, and apprehended accused Imran and Kamal Kumar. Thereafter, on 24.09.2021, while the present accused Shri Prabhu Shankar Tiwari came to Guwahati and was waiting at Railway Station, Guwahati in the evening, an NCB team apprehended him and arrested him on 25.09.2021, and forwarded him to jail hazot. Then after investigation, final complaint has been laid before the court of learned Sessions Judge, Kamrup (M), Guwahati against the present accused along with two others to stand trial in the Court under Sections 21(c) & 29 of NDPS Act. 5. Mr. Dutta, learned counsel for the accused, submits that the accused was arrested on 25.09.2021, and since then he has been languishing in jail hazot for Page No.# 3/5 last five years. Mr. Dutta also submits that the trial is going on and out of eleven witnesses cited in the charge-sheet, five witnesses have been examined till date, and the pace at which the trial is going on, it is unlikely that it would be completed very soon. Mr. Dutta further submits that the accused was earlier granted interim bail to solemnize the marriage of his son, and thereafter, he had surrendered and facing trial, and that he will appear before the trial Court on each and every date, and therefore, he has contended to allow the petition. 6. Per contra, Mr. Choudhury, learned Senior Counsel-cum-Dy.S.G.I. for the respondent NCB, has opposed the petition. He submits that the trial is going on and it will be completed very soon. However, he submits that for examination of five witnesses, almost five years have elapsed and that the offences are serious in nature and the accused has to satisfy the requirements of Section 37 of the NDPS Act, and therefore, he has contended to dismiss the petition. 7. Having heard the submissions of learned Advocates of both sides, this Court has carefully gone through the petition and the documents placed on record and has also perused the scanned copy of the record received from the learned trial Court. 8. It is to be noted here that in the case of Union of India vs. K.A. Najeeb, reported in (2021) 3 SCC 713, Hon’ble Supreme Court has held as under: "15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Under trial Prisoners v. Union of India, it was held that under trials cannot indefinitely be detained pending trial. Ideally, no Page No.# 4/5 person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail." 9. Again, in the case of Rabi Prakash vs. State of Odisha, reported in 2023 SCC OnLine SC 1109, Hon’ble Supreme Court granted bail to an accused under Section 20(b)(ii) (C) of the NDPS Act (involving commercial quantity of ganja) who had spent more than 3 and 1/2 years in custody, with the trial still pending. The Court held that while the twin conditions under Section 37(1)(b) of the NDPS Act apply, prolonged incarceration militates against the fundamental right to life and personal liberty under Article 21 of the Constitution. In such a situation, "the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act. 10. A related earlier ruling is Mohd. Muslim @ Hussain v. State (NCT of Delhi) (2023 SCC OnLine SC 352), which similarly held that grant of bail on the ground of undue delay in trial is not fettered by Section 37, given the applicability of Section 436A CrPC and Article 21 concerns about prolonged under trial detention. 11. Indisputably, the accused was arrested on 25.09.2021, and since then, he has been languishing in jail hazot for almost five years. It also appears that the learned trial Court has already framed charges and examined five witnesses out Page No.# 5/5 of eleven witnesses cited in the charge-sheet. Further, it appears that the pace, at which the trial is going on, and the time consumed for examination of witnesses, it is very unlikely that it would be completed very soon as six more witnesses are yet to be examined. 12. It is a fact that the contraband substances seized in connection with this case are of commercial quantity and as such, the accused has to satisfy the requirements of Section 37 of the NDPS Act. However, the fact remains that the accused has been languishing in jail hazot for last five years and there is no prospect of immediate conclusion of the trial as six witnesses are yet to be examined. 13. Under the given facts and circumstances, this Court is inclined to allow the petition. It is provided that on furnishing a bond of Rs. 1,00,000/- with two sureties of like amount to the satisfaction of the learned trial Court, the accused be enlarged on bail. 14. It is further provided that the learned trial Court will be at liberty to impose any other condition while accepting the bail bond to ensure presence of the accused on each and every date at the trial. 15. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant