Page No.# 1/7 GAHC010087282026 2026:GAU-AS:7983 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1177/2026 MD. RAFIKUL ISLAM @ RAFIKUL ISLAM @ ROFIKUL ISLAM S/O- MD. NIJAMUDDIN, R/O- OWANA, P.S.- RUPAHIHAT, DIST.- NAGAON, ASSAM, PIN- 782003 VERSUS THE STATE OF ASSAM REP. BY PP ASSAM Advocate for the Petitioner : MS. S G BARUAH, MR. B BORGOHAIN,MR B SAIKIA,MR. S NEOG Advocate for the Respondent : PP, ASSAM, Page No.# 2/7 BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA ORDER 08-06-20 26 Heard Ms. S. G. Baruah, leaned counsel for the petitioner and Mr. B. Sarma, learned Addl. PP, Assam. 2. This is an application filed under Section 483 of the BNSS, 2023, praying for grant of bail to the accused/petitioner, namely, Md. Rafikul Islam @ Rafikul Islam @ Rofikul Islam in connection with NDPS Case No. 67/2026 arising out of Rupahihat P.S. Case No. 378/2025 corresponding to G.R. Case No. 2552/2025 under Sections 123 of BNS, read with Sections 22(c)/25/29/8(c) of the NDPS Act. 3. Scanned copy of the TCR has already been received. Perused the same. 4. Further during the argument it is submitted by Ms. Baruah that till date, three witnesses have been examined and she produced the certified copies of PWs 1, 2, and 3. 5. Ms. Baruah further submitted that there are six listed witnesses by the prosecution, out of which two are independent witness, four others are official witnesses. Two independent witnesses along with the informant has already been examined by the prosecution and only official witnesses left to be examined and thus there cannot be any hampering or tempering with the other three witnesses, which are yet to be examined. 6. Ms. Baruah further submitted that the present petitioner is in custody since last 209 days and considering his period of incarceration also his bail prayer may be considered. Page No.# 3/7 7. Ms. Baruah, further submitted that as per evidences of PWs 1 and 2, the seizure witnesses of the prosecution, 151 bottles of Codeine Phosphate cough syrup were recovered in their presence, but from the evidence it reveals that there was no recovery from the body of the petitioner and they also do not know as to wherefrom one sack was recovered inside which the bottles of cough syrup were found and were recovered in their presence. 8. She further submitted that from the evidence of PW 3, the informant of this case that there was prior information and on the basis of which a Naka Checking was there and as per him he already requested two witnesses to be present at the time of recovery, but surprisingly both the PWs 1 and 2 are not in a position to say anything as to wherefrom 151 bottles of cough syrup were recovered. 9. She further submitted that as per PW3, the entire proceeding of search and seizure were video graphed through his mobile handset etc, but, the said mobile phone was never seized, nor there was any seizure of the document of the motor cycle to know the ownership of the same, without complying those provisions also the search and seizure was completed. Thus, she submitted that there is very less chance of conviction of the petitioner, as the vital witnesses have not supported the case of the prosecution including the two seizure witnesses, who are also the independent witness. 10. Ms. Baruah accordingly submitted that the prayer for bail of the petitioner may be considered and he being the permanent resident of the addressed locality, he will appear before the learned Trial Court on each and every date the case is fixed by the Court. 11. Mr. Sarma, learned APP raised objection and submitted that out of six Page No.# 4/7 prosecution witnesses, three witnesses have already been examined though the vital witnesses i.e., the I.O. is yet to be examined by the prosecution, who recorded the evidence of the other witnesses. Apart from that it is seen that huge quantity of contraband was recovered from the conscious possession of the petitioner and thus, the rigor of Section 37 will also attract in the present case. 12. He further submitted that charge in the case was framed on 06.05.2026 and within a reasonable period, three witnesses have also been examined by the prosecution. 13. Mr. Sarma accordingly raised objection and submitted that there cannot be any reason to believe that the present petitioner is innocent to consider his bail application at this stage. 14. Heard the submissions made by the learned counsel for the parties and I have also perused the scanned copy of the TCR. 15. It is the case of the prosecution that the entire contraband i.e., 151 bottles of cough syrup with Codeine Phosphate were recovered from the conscious possession of the petitioner and there was prior information and on the basis of which Naka checking was there on the spot and the accused was accordingly apprehended along with huge quantity of cough syrup having Codeine Phosphate. It is also the case of the prosecution that in presence of two independent witnesses the contraband was seized and seizure procedure was completed by observing all necessary formalities. 16. On the other hand, the case of the accused petitioner is that there is no material/evidence to prove that the contraband was recovered from the conscious possession of the accused petitioner. Page No.# 5/7 17. It is an admitted position that there was no recovery from the body of the petitioner and as per allegation, the contraband was recovered from his bike and it was wrapped in a sack. But as per both the independent witnesses, i.e., seizure witnesses, it is evident that they are not aware about the recovery of the contraband, though it was seized in their presence. Apart from that, as per the informant, i.e., Pw-3 there was prior information and accordingly they requested the seizure witness to remain present at the time of search and seizure. From the certified copy of the evidences of PWs 1, 2 and 3, it is seen that two independent witnesses claimed their presence at the time of search and seizure and accordingly they put their signatures on the seizure list. As per both the PWs, 151 bottles of cough syrup containing Codeine Phosphate were recovered, but they could not say as to wherefrom the contraband was recovered. But their presence at the time of search and seizure is not disputed at all. 18. Further from the evidence of Pw-3, it is also seen that entire search and seizure was completed in presence of the seizure witnesses, i.e., PWs 1 and 2 and the entire search and seizure procedure were also video-graphed. But it is a fact that the mobile phone through which the entire procedure was video- graphed was not seized during investigation, nor there is any seizure of the document of the seized motor cycle. But at this stage the appreciation of evidence of entire prosecution witnesses is not required as it is a stage of bail hearing and whether the evidence of PWs 1 and 2 is believe-able etc., are the issues to be decided at the time of final hearing of the prosecution. But their presence at the time of seizure is not a disputed fact and the Pw 3 also narrated the entire sequence under which the search and seizure proceeding was completed. Page No.# 6/7 19. At the same time, it is also seen that out of six numbers of prosecution witnesses, three witnesses including the two independent witnesses have already been examined by the prosecution and only three witnesses are to be examined which are stated to be official witnesses as well as the I.O. Though the other witnesses are the official witnesses, but their evidence is also equally important to that of the evidence of independent witnesses as it is claimed that they are present at the time of search and seizure as well as while observing other formalities. Apart from that it is also seen that charge in the present case was framed on 06.05.2026 against the present petitioner and within a very short period of time, the prosecution examined three numbers of witnesses and thus it cannot be said that there was inordinate delay in the trial of the case to violate the provisions of Article 21 of the Constitution. Further the period of incarceration also cannot be found to be long incarceration and the witnesses were also examined within a very reasonable period of time. 20. Coming to the rigor of Section 37 of the NDPS Act it is seen that quantity of the alleged contraband which was seized from the conscious possession of the petitioner is of commercial quantity and hence, the twin conditions are to be satisfied to grant bail to a person, who is accused of a case of commercial quantity under the NDPS Act. 21. From the materials available in the case record and the statements made by the other prosecution witnesses it cannot be held that the accused petitioner was not guilty of the offence or nor there is any reasonable ground to believe that he will not commit similar kind of offence after enlarging on bail, which are the requirement to grant bail under the NDPS Act as rigor of Section 37 will attract in a case of commercial quantity. 22. Thus, only considering the evidence of three witnesses there cannot be Page No.# 7/7 any reasonable ground to believe that the accused was innocent or he will not commit similar kind of offence, if he is granted bail. 23. So considering all these aspects of the case, this Court is of the opinion that on the basis of the evidence of two independent witnesses, the bail prayer of the petitioner cannot be considered and at the same time it is also seen that the learned Special Judge is proceeding with the trial in a very good pace and disposal of the case may be expected within a reasonable time. 24. In view of above and considering the gravity of the offence, this Court is of the opinion that it is not at all a fit case to enlarge the petitioner on bail. 25. Accordingly, this bail application of the petitioner stands rejected. JUDGE Comparing Assistant