Gauhati High Court
Md Ziaul Hassan @ Tumun vs The State Of Assam on 5 February, 2025
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GAHC010018142025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./258/2025
MD ZIAUL HASSAN @ TUMUN
S/O SOFIQUL ISLAM
R/OVILL-BALURCHAR
P.O.KAKRIPARA
P.S. MANKACHAR,
DIST. SOUTH SALMARA MANKACHAR, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. B CHOWDHURY, MR M HOQUE
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 05.02.2025
1. Heard Mr. B. Chowdhury, learned counsel for the petitioner. Also heard
Mr. K. K. Das, learned Additional Public Prosecutor for the State respondent.
2. This application under Section 483 of BNSS, 2023 has been filed by the
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petitioner, Md. Ziaul Hassan @ Tumun, who has been detained behind the bars
since last 03.03.2024 (for the last 11 months) in connection with Special NDPS
Case No. 72/2024 under Section 21(c)/29 of the NDPS Act, 1985.
3. The learned counsel for the petitioner has submitted that in the Special
NDPS Case No. 72/2024, charge sheet was laid against 3 numbers of accused
persons, out of whom 2 are already enlarged on bail, namely, Md. Shoyjuddin
Ahmed @ Sallu, who was allowed to go on bail by order dated 10.04.2024, as
well as Md. Arsad Ali, who was allowed to go on bail on 21.06.2024.
4. The learned counsel for the petitioner has submitted that although,
the co-accused are already enlarged on bail, however, the petitioner has been
languishing behind the jail (for the last 11 months), and trial is yet to
commence. He submits that, his detention during the trial period would
jeopardize his preparation for trial, as the other co-accused are enlarged on bail.
5. The learned counsel for the petitioner submits that the petitioner is
ready to cooperate in trial and therefore, prays for allowing him to go on bail.
6. On the other hand, Mr. K. K. Das, learned Additional Public Prosecutor
has vehemently opposed the grant of bail to the present petitioner on the
ground that commercial quantity of heroin was recovered from the possession
of the present petitioner. Hence, the embargo of Section 37 of the NDPS Act,
1985 is applicable to this case.
7. The learned Additional Public Prosecutor also submits that the present
petitioner does not stand in the same footing as that of the other two accused
persons, as they were granted bail on different grounds.
8. I have considered the submissions made by the learned counsel for the
petitioner and have gone through the materials available on the ground.
9. It appears from records that the petitioner, who is the co-accused, Md.
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Shoyjuddin Ahmed @ Sallu was granted bail on 10.04.2024, as the quantity of
codeine cough syrup recovered from his possession was found to be less than
commercial quantity. It was also found that apart from the statement of co-
accused, there was nothing at that point of time against the said co-accused.
Hence, relying on the judgment of " Toofan Singh Vs. State of Tamil Nadu"
reported in (2021) 4 SCC 1, he was allowed to go on bail, whereas the co-
accused Md. Arsad Ali was also allowed to go on bail as nothing was recovered
from conscious possession of the said accused.
10. In case of the present petitioner, however, there is material on record
suggesting recovery of 262 grams of heroin from his possession. Hence, in case
of the present petitioner, the embargo of Section 37 of the NDPS Act, 1985 is
applicable.
11. Moreover, as regards the submissions made by the learned counsel for
the petitioner regarding the prolonged incarceration of Md. Ziaul Hassan @
Tumun, this Court is of considered opinion that considering the nature of
offence involved in this case as well as the embargo of Section 37 of the NDPS
Act, 1985 the incarceration of 11 months may not be considered as long enough
to override the embargo of Section 37 of the NDPS Act, 1985. Hence, the prayer
for bail is rejected at this stage.
JUDGE
Comparing Assistant
