Page No.# 1/4 vs Union Of India
2025 Latest Caselaw 224 Gua

Gauhati High Court

Page No.# 1/4 vs Union Of India on 6 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                           Page No.# 1/4

GAHC010088652025




                                                                   2025:GAU-AS:5608

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

                               Case No. : Bail Appln./1345/2025

             RAKESH KUMAR
             S/O BASANT RAM
             R/O VILLAGE JINWALIA, PO AND PS SIRSIA, BETTIAH, DISTRICT WEST
             CHAMPARAN, BIHAR



             VERSUS

             UNION OF INDIA
             REPRESENTED BY THE STANDING COUNSEL, NCB



Advocate for the Petitioner   : MR. M BISWAS, S K DAS,A GHOSAL,J SINGPHO

Advocate for the Respondent : SC, NCB,




                                         :: BEFORE ::
                   HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                         O R D E R

06.05.2025

Heard Mr. M. Biswas, the learned counsel appearing for the petitioner. Also heard Ms. M. Deka, the learned counsel appearing on behalf of NCB.

Page No.# 2/4

2. This is an application under Section 483 of the BNSS, 2023 praying for releasing the petitioner Rakesh Kumar on bail, who is now facing trial in NDPS Case No.146/2022 corresponding to NCB Crime No.30/2021 pending in the court of the learned Addl. Sessions Judge No.2, Kamrup (M), Guwahati.

3. On 27.12.2021, the NCB, Guwahati got the information that two persons, namely- the present petitioner and Shambhu Debbarma would be coming from Jorabat, Meghalaya in a Truck bearing Registration No.BR 06 GD 7105 carrying a consignment of 200 kgs. of ganja and would proceed towards Jalukbari by the National Highway No.37. An NCB team recovered 221.750 kgs. of ganja from the driver's cabin of the said Truck. The charge sheet was filed on 22.06.2022.

4. The Trial court framed the charges. Three witnesses are already examined and the fourth witness is partly examined. By this time, the petitioner Rakesh Kumar has already spent 3 years 4 months and 8 days in custody.

5. The present bail application has been filed on the ground of inordinate delay in trial.

6. Mr. Biswas relied upon a decision of the Hon'ble Supreme Court that was delivered in Rabi Prakash vs. State of Odisha , 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.

7. 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 Page No.# 3/4

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 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."

8. 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 Uttar Pradesh, [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."

9. Ms. Deka has objected to this bail application only on the ground that commercial quantity of contraband goods was recovered from the possession of the present petitioner.

10. I have given my anxious considerations to the submissions made by the learned counsel of both sides.

11. In the case in hand, apart from the present petitioner, there are some other accused also. Some of them are already released on bail. There are altogether 11 witnesses and out of them, only 3 are already examined and the fourth witness is yet to be completely examined and cross-examined.

12. In Rabi Prakash (supra), it has been held that the prolonged incarceration, Page No.# 4/4

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 ½ years in judicial custody.

13. This Court is of the opinion that under the given circumstances, the prolonged incarceration deserves to be taken as a ground for releasing the petitioner on bail. Therefore, the bail application is allowed. The petitioner Rakesh Kumar who is facing trial before the court of learned Addl. Sessions Judge No.2, Kamrup (M), Guwahati in NDPS Case No.146/2022 shall be released on bail of ₹25,000/- with a surety of like amount to the satisfaction of the said court [Addl. Sessions Judge No.2, Kamrup (M), Guwahati].

14. 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 bail application is disposed of.

JUDGE

Comparing Assistant