Gauhati High Court
Page No.# 1/4 vs The Union Of India on 3 June, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010110532025
2025:GAU-AS:7170
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1716/2025
SWARN SINGH
S/O LATE HARBHAJAN SINGH
R/O HOUSE NO. 45A, SECTOR-1, MODEL TOWN, JAMMU CITY, P.O. AND P.S.
GANGYAL
DIST. JAMMU, JAMMU AND KASHMIR-180010.
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL, NCB
Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,J SINGPHO
Advocate for the Respondent : SC, NCB,
:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
03.06.2025
This application has been taken up for consideration in view of the directions
contained in Paragraph 2 of the Notification No.27 of this Court dated 3 rd May, 2025.
2. Heard Mr. M. Biswas, the learned counsel appearing for the petitioner. Also heard
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Ms. N. Deka, the learned counsel appearing on behalf of NCB.
3. This is an application under Section 483 of the BNSS, 2023 praying for releasing
the petitioner Swarn Singh on bail, who is now facing trial in NDPS Case No.208/2021
corresponding to NCB Crime No.11/2021 pending in the court of the learned Addl.
Sessions Judge No.5, Kamrup(M), Guwahati.
4. 224.150 kg. of ganja was recovered from the petitioner. He was arrested on
12.06.2021. The Offence Report was filed on 10.12.2021. The charges were framed
on 03.03.2023. Total number of prosecution witnesses shown in the charge sheet are
10. Out of them, 5 witnesses have been examined so far. The next date for recording
evidence is on 25.07.2025. The petitioner has been in custody for the last 3 years 11
months and 15 days.
5. Mr. Biswas relied upon a decision of the Hon'ble Supreme Court that was
delivered in Rabi Prakash vs. State of Orissa, reported in (2023) SCC OnLine SC 1109 .
The factual matrix of this case is like this - the police party while on patrolling duty on
02.10.2019 at about 12.30 p.m. on Nandapur-Semiliguda road MDR-55, spotted one
full body twelve wheeler Truck (Eicher) bearing No. EB-13-BD-5753 coming from
Nandapur side at a high speed and accordingly they chased and detained the truck at
Bodenga Chhak and found three persons boarded in the said truck including the driver.
Eventually, 247 kg. Ganja was recovered from the truck. The petitioner was one of the
occupants of the truck and was arrested at the spot. He has been in custody for more
than three and a half years. There are no criminal antecedents against the petitioner.
6. Paragraph 4 of the said judgment is quoted as under:
"4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned
counsel for the respondent - State has been duly heard. Thus, the 1 st condition stands
complied with. So far as the 2 nd condition re: formation of opinion as to whether there
are reasonable grounds to believe that the petitioner is not guilty, the same may not
be formed at this stage when he has already spent more than three and a half years in
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custody. 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."
7. In order to buttress his point, Mr. Biswas has further relied upon another
judgment of the Hon'ble Supreme Court that was delivered in Dheeraj Kumar Shukla
vs. State of Uttrakhand, [Special Leave to Appeal (Crl.) No.(s) 6690/2022 . In the
judgment the Supreme Court has held as under:
"It is true that the quantity recovered from the petitioner is commercial in nature
and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the
absence of criminal antecedents and the fact that the petitioner is in custody for the
last two and a half years, we are satisfied that the condition of Section 37 of the Act
can be dispensed with at this stage."
8. Ms. Deka submits that the trial court should be given some opportunity to
examine more witnesses. She also pointed out that a large quantity of ganja was
recovered from the possession of the petitioner.
9. I have given my anxious considerations to the submissions made by the learned
counsel of both sides.
10. It is now a settled law that because of long incarceration the conditions of
Section 37 of the NDPS Act can be dispensed with at this stage. In Rabi Prakash
(supra), it has been held that the prolonged incarceration, generally militates against
the most 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. Already the petitioner has spent more than
3 years 11 months and 15 days in judicial custody.
11. This Court is of the opinion that under the given circumstances, the prolonged
incarceration deserves to be taken as aground for releasing the petitioner on bail.
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Therefore, the bail application is allowed. The petitioner Swarn Singh who is now
facing trial in NDPS Case No.208/2021 corresponding to NCB Crime No.11/2021
pending in the court of the learned Addl. Sessions Judge No.5, Kamrup(M), Guwahati,
shall be released on bail of ₹50,000/- with a surety of like amount to the satisfaction
of the learned Addl. Sessions Judge No.5, Kamrup(M), Guwahati.
12. The petitioner shall regularly appear before the trial court on each and every
fixed date. It is hereby directed that if the petitioner fails to appear before the trial
court without showing any satisfactory reason, the trial court shall have the liberty to
procure his attendance according to the procedure as laid down by law.
With the aforesaid direction, the present bail application stands disposed.
JUDGE
Comparing Assistant
