Page No.# 1/5 GAHC010047752026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./839/2026 NAZIR KAZI ALIAS BOGA ALIAS SYED NAZIR KAZI SON OF AFTAZ ALI RESIDENT OF VILLAGE - GOG P.S. BAIHATA CHARIALI, PIN - 781381 DISTRICT - KAMRUP, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE P.P., ASSAM Advocate for the Petitioner : MR. A PAUL, MD. M. ALI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date - 03.06.2026 1. Heard Mr. A. Paul, the learned counsel appearing for the petitioner. Also heard Mr. K. Baishya, the learned Additional Public Prosecutor appearing for the State of Assam. 2. This application under Section 483 of the BNSS, 2023 has been filed by the petitioner, namely, Nazir Kazi @ Boga @ Syed Nazir Kazi, praying for bail in connection with NDPS Case No. 30/2025, pending Page No.# 2/5 before the Court of the learned Special Judge, Kamrup, Rangia under Section 22(c) of the NDPS Act, 1985. 3. The gist of accusation in this case is that on 06.03.2025, one Daisy Nath, SI of Police, had lodged an FIR before the Officer-in-Charge of Baihata Chariali Police Station, inter-alia, alleging that an information has been received from reliable sources that the present petitioner has kept huge quantity of cough syrups in his residence and also selling the same by using his alto car and scooty. Accordingly, a search operation was made by the police of Baihata Chariali Police Station and 240 numbers of 100ml bottles of Broncof C Syrup containing codine phosphate were recovered therefrom. 4. On receipt of the said FIR, the Baihata Chariali Police Station Case No.61/2025 was registered under Section 22 (c) of the NDPS Act, 1985 and investigation was initiated. Ultimately, on completion of investigation, charge sheet was laid against the present petitioner and the trial has commenced after framing of charges against the present petitioner to which he has pleaded not guilty. 5. Mr. A Paul, the learned counsel for the petitioner has submitted that the petitioner is innocent and nothing was found from his conscious possession as he was not in the place from where the recovery was made. 6. He submits that he has himself surrendered before the Trial Court on 11.11.2025, which indicates his innocence in the instant case. He further submits that the Trial Court on the same day of his surrender before it, had remanded the petitioner to police custody for three days and after production of the petitioner before the Trial Court from Page No.# 3/5 the police custody, he was remanded to judicial custody. However, no grounds of his detention were communicated to him. 7. He, therefore, submits that in this case, the provisions of Section 36, 47 and 48 of the BNSS, 2023 have been violated. He submits that he is entitled to get bail for violation of mandatory statutory provisions. He also submits that since nothing was found from the conscious possession of the petitioner, the embargo contained in Section 37 of the NDPS Act, 1985 is also not applicable in his case. 8. He also submits that the petitioner has been detained behind the bars for more than last six months and the trial is not progressing, hence, he submits that on the grounds of prolonged incarceration also, the petitioner is entitled to get bail. 9. On the other hand, Mr. K. Baishya, the learned Additional Public Prosecutor, has vehemently opposed the grant of bail to the present petitioner on the ground that the contraband seized in this case is of commercial quantity, therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He submits that the petitioner has failed to overcome the said embargo. 10. He also submits that since in this case, the petitioner himself surrendered before the Trial Court and he was not arrested by police at the first instance, hence, the question of preparing an arrest memo under Section 36 of the BNSS, 2023 and requirement of complying with the mandate of Section 47 and 48 of the BNSS, 2023 does not arise. 11. He also submits that since this is a case involving commercial quantity of contraband, a period of six months may not be regarded Page No.# 4/5 as long enough incarceration to give him benefit of bail on the grounds of prolonged incarceration. 12. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. 13. On perusal of the records, it appears that though, the petitioner was not present at the time when the seized contraband were recovered, however, it is clear from records that said contrabands were recovered from the house of the present petitioner. 14. Merely, because of the fact that the petitioner was not present at the time when the recovery of contraband was made from his house, it may not be said that the petitioner may be regarded as innocent at this stage. The said aspect is required to be considered during trial. However, prima facie, it appears that the seized contraband were recovered from the constructive possession of the present petitioner. 15. As regards the non-compliance of Section 36, 47 and 48 of the BNSS, 2023 are concerned, the said provisions are applicable only when a person is arrested by any such Officer or person as provided under the said provisions of BNSS, 2023. However, in the instant case, the petitioner was not arrested at the initial stage, rather, he himself surrendered before the Trial Court and he was remanded to police custody as well as judicial custody by a Judicial Order, which was never put to a challenge by the petitioner. This Court is, therefore, of the considered opinion that the provisions contained under Sections 36/47/48 of the BNSS, 2023 are not applicable to the facts and circumstances of the present case. 16. As regards grant of bail on the ground of prolonged incarceration is concerned, this Court is in agreement with the legal proposition that Page No.# 5/5 prolonged incarceration overrides the embargo of Section 37 of the NDPS Act, 1985. However, as to how much incarceration may be regarded as long enough to be considered as prolong incarceration to get give the benefit of bail. It depends upon the facts and circumstances of individual case. 17. In the instant case, since the contraband seized in this case is of huge quantity of 240 numbers of cough syrup bottles containing codine phosphate. The incarceration of less than 7 month cannot, in the considered opinion of this court, be regarded as long enough to give the benefit of bail to the petitioner on that ground. 18. In view of the discussions made and reasons stated in the foregoing paragraphs, the prayer for bail is rejected. 19. However, the Trial Court is, hereby, directed to make all endeavours to dispose of the NDPS Case No. 30/2025 as expeditiously as possible. JUDGE Comparing Assistant