Page No.# 1/7 vs The Union Of India
2025 Latest Caselaw 6353 Gua

Gauhati High Court

Page No.# 1/7 vs The Union Of India on 27 August, 2025

                                                                         Page No.# 1/7

GAHC010166902025




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./2445/2025

            JANGKHOLUN BAITE AND ANR
            S/O- NGAMJANG BAITHE.
            R/O- NG. MOULNOM VILLAGE, P.O.- MOREH, P.S.- MOREH. DIST.-
            TENGNOUPAL, MANIPUR - 795131.

            2: JAANGMINCHON TOUTHANG
             S/O- LETMANG TOUTHANG
             R/O- NEW LAMBULANE RIVER SIDE
             IMPHOL MUNICIPAL COUNCIL
             P.O.- POROMPAT
             P.S.- POROMPAT
             DIST.- IMPHAL EAST
             MANIPUR - 795005

            VERSUS

            THE UNION OF INDIA
            REPRESENTED BY THE STANDING COUNSEL DRI.


Advocate for the Petitioner   : MR. M BISWAS, MS. A K CHOPHI,A GHOSAL,J SINGPHO

Advocate for the Respondent : SC, DRI,

                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                          ORDER

Date : 27.08.2025

1. Heard Mr. M. Biswas, learned counsel for the petitioners. Also heard Ms. M. Deka, learned counsel appearing for the DRI.

Page No.# 2/7

2. This application under Section 483 of BNSS, 2023 has been filed by the petitioners, namely, Jangkholun Baite and Jaangminchon Touthang , who are detained behind the bars since 25.01.2025 (for more than 1 year and 7 months) in connection with NDPS Case No. 241/2024 under Sections 21(c)/29 of the NDPS Act, 1985 pending before the Court of learned Additional Sessions Judge No. 5, Kamrup(M).

3. The gist of the accusation in this case is that on receipt of information through reliable sources to the effect that on 25.01.2024, two persons will be carrying huge quantity of contraband in a vehicle bearing Registration No. AS-01- DL-3273, a search was constituted and intercepted the said vehicle and a search was made in the said vehicle. During search, the present petitioners were found in the said vehicle and 150 numbers of soap cases were recovered therefrom containing suspected heroin. On weighing of the heroin, the weight of the same was found to be 1589.52 grams. After completion of the investigation, the final complaint was lodged in this case on 12.07.2024.

4. The learned counsel for the petitioners has submitted that the petitioners are seeking bail in this case mainly on the ground of prolonged incarceration. He submits that the Apex Court in several of its judgments has observed that prolonged incarceration overrides the embargo of Section 37 of the NDPS Act, 1985. He submits that though the petitioners are languishing behind the bars for more than one year and seven months, however, till date only two witnesses have been fully examined and the third witness has been examined in-chief.

5. The learned counsel for the petitioner has also cited the rulings of the Apex Court in (i) "Shariful Islam @ Sarif Vs. State of West Bengal " (order dated 04.08.2022 in SLP Criminal No. 4173/2022), (ii) " Dheeraj Kumar Shukla Vs. State of Uttar Pradesh" [order dated 25.10.2023 passed in Special Leave to Appeal Page No.# 3/7

(Criminal) No. 6690/2022], (iii) "Anjan Nath V. The State Of Assam [Order dated 17.10.2023 passed in Special Leave to Appeal (Criminal) No. 9860/2023], (iv) "Nitesh Adhikari Vs. State of West Bengal" (Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022) and (v) " Md. Salman Hanif Shaikh Vs. State of Gujarat "

(Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), wherein the petitioners (who were facing trial for possessing a commercial quantity of contraband) were granted bail by the Apex Court. However, due to the prolonged incarceration in all the above mentioned cases, the petitioners were allowed to go on bail. Therefore, on the same principle, the learned counsel for the petitioners has also submitted that in the instant case also the petitioners, who have been languishing behind the bars for more than 1 year 7 months, may be allowed to go on bail.

6. He submits that the Apex Court in several cases where the offence involved is relating to commercial quantity of contraband under NDPS Act, 1985 and where the petitioners were detained behind the bars for more than one year six months have granted bail to such petitioners merely on the ground of prolonged incarceration. He, therefore, submits that the petitioners may also be granted bail on the ground that their fundamental right guaranteed to them under Article 21 of the Constitution of India has been violated due to such prolonged incarceration.

7. On the other hand, Ms. M. Deka, learned counsel for the DRI has vehemently opposed the grant of bail to the present petitioners on the ground that the quantity of contraband seized in this case is a huge quantity of heroin and is a commercial quantity, and therefore the embargo of Section 37 of the NDPS Act is applicable in this case. She has submitted that a Co-ordinate Bench of this Court has not allowed the prayer for bail under such circumstances even though the petitioner in that case was detained behind the bars for more than four years. She Page No.# 4/7

has produced a copy of the order dated 14.07.2025 passed by the Co-ordinate Bench of this Court in Bail Application No. 1918/2025 in support of her submission. She also submits that in this case the charges were framed on 02.09.2024 and already two witnesses have been examined and third witness has also been examined-in-chief and only nine witnesses are remaining, which would not take much time.

8. I have considered the submissions made by the learned counsel for both sides and have gone through the records available before the Court.

9. The Hon'ble Supreme Court of India in "Mohd Muslim @ Hussain Vs. State (NCT of Delhi)" reported in "2023 SCC Online SC 352" has observed that "grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985".

10. The Hon'ble Apex Court in "Rabi Prakesh Vs. State of Orissa" reported in 2023 live law (SC) 533, wherein it has been observed by the Hon'ble Apex Court that "The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

11. It appears on perusal of the rulings cited by learned counsel for the petitioner that in all the cases cited by the petitioner, though commercial quantity of contraband was involved and apparently the embargo of Section 37 would have been applicable in those cases, however, only because of the fact of the prolonged incarceration of the petitioners, the Apex Court allowed the petitioners to go on bail.

12. In view of the observation made by the Apex Court, this Court is of the considered opinion that if, under the facts and circumstances of a case, this Court Page No.# 5/7

comes to the finding that there is an undue delay in the completion of the trial, and that the incarceration of the petitioner is long enough, he would be entitled to get bail on the ground of such prolonged incarceration, as in such a case of prolonged incarceration, the right to life and personal liberty guaranteed to the petitioner under Article 21 of the Constitution of India would outweigh the fetter imposed under Section 37 of the NDPS Act, 1985.

13. It is also pertinent to mention herein that the Hon'ble Supreme Court of India had granted bail to an accused facing charges for possession of a commercial quantity of contraband only on the ground of prolonged incarceration in " Shariful Islam @ Sarif Vs. State of West Bengal" (Order dated 04.08.2022 passed in SLP Criminal No. 4173/2022), wherein the accused was detained behind bars for one year and six months.

14. In "Nitesh Adhikari Vs. State of West Bengal" (Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022), Hon'ble Apex Court granted bail to the accused facing accusation under Section 21(c) of the NDPS Act, 1985 on the ground of incarceration of one year seven months.

15. Similarly in "Md. Salman Hanif Shaikh Vs. State of Gujarat" (Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), the petitioner was granted bail by the Apex Court on the ground of prolonged incarceration of two years.

16. In "Chitta Biswas Alias Subha Vs. The State Of West Bengal " (Order dated 07.02.2020 passed in SLP Criminal No. 8823/2019), the Apex Court granted bail to the petitioner, who was facing a trial for possessing a commercial quantity of contraband on the ground of prolonged incarceration of 1 year 6 month.

17. Though, in the case cited by the learned counsel for the DRI, the Co- ordinate Bench of this Court has rejected the prayer for bail even though the petitioner in that case was detained behind the bars for more than four years.

Page No.# 6/7

However, the said Court has done so after coming into a finding that the delay occasioned in that case cannot be termed as inordinate so as to violate the fundamental rights of the petitioner in that case. Every bail application has to be dealt with in accordance with the facts of that case and if the facts are not similar, the order of the Co-ordinate Bench, ipso facto would not be applicable to this case.

18. This Court, in view of the ruling cited in the foregoing paragraphs, is of the considered opinion that in the instant case also, the facts and circumstances are such that the period of detention of one year and seven months undergone by the petitioners may be regarded as long enough to ought weigh the embargo of Section 37 of the NDPS Act, 1985.

19. This Court is, therefore, of the considered opinion that the petitioners are entitled to get bail in this case on the ground of prolonged incarceration.

20. In view of the above, both the above named petitioners are allowed to go on bail of Rs.2,00,000/- (Rupees Two Lakhs only) each with two sureties of like amount (one of whom should be a government servant) subject to the satisfaction of the Trial Court with the following conditions:

i. That the petitioner shall co-operate in the trial of NDPS Case No. 241/2024, which is pending in the Court of learned Additional Sessions Judge No. 5, Kamrup(M);

ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court;

iii. That the petitioners shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioners;

Page No.# 7/7

iv. That the petitioners shall provide their contact details including photocopies of their Aadhar Card, Driving License, PAN card, mobile number, and other contact details before the Trial Court;

v. That the petitioners shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioners shall submit their leave address and contact details during such leave before the Trial Court; and

vi. That the petitioners shall not commit any similar offence while on bail.

21. This bail application is accordingly disposed of.

JUDGE

Comparing Assistant