Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 14 May, 2025

                                                                         Page No.# 1/9

GAHC010048702025




                                                                 2025:GAU-AS:5938

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

                               Case No. : Bail Appln./778/2025

            BIPLAB DAS
            S/O- LATE BIPUL DAS, R/O- VILL- SUKANTA NAGAR PART III, PS
            KUMARGHAT, DIST- UNOKOTI, TRIPURA



            VERSUS

            THE STATE OF ASSAM
            TO BE REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M A CHOUDHURY, MR A AHMED,MR. A AHMED

Advocate for the Respondent : PP, ASSAM,




                          BEFORE
           HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                           ORDER

Date : 14.05.2025

Heard Mr. M. A. Choudhury, learned counsel for the petitioner. Also head Mr. M. P. Goswami, learned Additional Public Prosecutor for the State respondent.

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2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special (NDPS) Case No. 14/2023, arising out of Bazaricherra P.S. Case No. 51/2023, under Sections 20(b)(ii)(C)/25/29 of NDPS Act, 1985, pending before the Court of learned Special Judge, Sribhumi.

3. Scanned copy of the case record has already been received. Perused the same.

4. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the present accused/petitioner is innocent and he is no way connected in the alleged offence, though it is alleged that 1020 Kgs of Ganja was recovered from his possession. It is a fact that on the day of incident, the petitioner was driving the vehicle to deliver a consignment from Unokoti market to Meghalaya as per the instruction of owner of the vehicle. However, he had no knowledge about the contraband and he got apprehended in connection with this case only on suspicion. Further he submitted that the accused/ petitioner was arrested in connection with this case on 19.02.2023 and for last 2 (two) years, 2 (two) months & 25 (twenty five) days, he has been in custody and till date, the prosecution could only examine 3 (three) witnesses out of 8 (eight) numbers of listed witnesses, though the charge-sheet of the case was filed on 31.07.2023. More so, he submitted that the case was last listed on 03.04.2025 and the next date for evidence is fixed on 30.06.2025. Therefore, he submitted that there is no probability of completion of trial within near future as lots of witnesses are yet to be examined by the prosecution and hence, considering the period of long incarceration, the petitioner may be enlarged on bail.

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5. In support of his submission, Mr. Choudhury, learned counsel for the petitioner, further relied on the following decisions:

(i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533

(ii) Kabirul Islam & Anr. Vs. The State of West Bengal [SLP(Crl) No. 12773/2023, decided on 28.02.2024]

(iii) Rased Mia Vs. The State of West Bengal [SLP (Crl) No. 14347/2023, decided on 24.01.2024]

(iv) Dhirendra Kr. Choudhury Vs. The State of Assam, decided on 14.08.2024]

(v) Zakirul Islam @ Md. Zakirul Islam @ Zakir Vs. The State of Assam, decided on 15.07.2024]

6. Mr. Goswami, learned Additional Public Prosecutor, submitted that the F.I.R. was lodged on 18.02.2023 and the charges were accordingly framed on 17.11.2023 and till date, already 3 (three) numbers of witnesses are being examined by the prosecution and thus, it cannot be said that there is an inordinate delay in the trial of the case. More so, he submitted that there are sufficient incriminating materials in the Case Record as well as the Case Diary against the present accused/ petitioner showing his direct involvement in the alleged offence. That apart, all the prosecution witnesses, who are already examined by the prosecution, has implicated the present petitioner in the alleged offence. He further submitted that as the case is of commercial quantity, rigor of Section 37 of NDPS Act will follow. He also submitted that in the case of Page No.# 4/9

Narcotics Control Bureau Vs. Mohit Agarwal [Criminal Appeal Nos. 1001-1002 of 2022, arising out of SLP (Crl.) No. 6128 of 2021], the Hon'ble Apex Court has held that long incarceration or delay in disposal only cannot be the sole ground for entertaining the bail application. Accordingly, he submitted that this is a case of commercial in nature wherein huge quantity of contraband is alleged to have been recovered from the possession of the present accused/ petitioner and hence, his prayer may not be considered only on the ground of period of incarceration.

7. After hearing the submissions made by the learned counsels for both sides, I have perused the scanned copy of the case record and the annexures filed along with the petition.

8. As per the allegation, it is seen that on the day of incident, while the informant along with other police personnel was conducting naka checking, they intercepted one six wheeler brick red color truck bearing Registration No. TR-01 AL-1809, which was being driven by the present petitioner. During search, they found suspected ganja weighing 1020 KGs, which were accordingly seized after observing all necessary formalities and the accused person was also arrested. However, it is the case of the petitioner that he is innocent and was not aware about the loading of the contraband in the vehicle.

9. It is a fact that the present accused/petitioner was arrested in connection with this case on 19.02.2023 with the allegation of recovery of commercial quantity of contraband from his possession and since then, the accused/petitioner is in custody. After his arrest and on completion of Page No.# 5/9

investigation, police find prima facie materials against him and accordingly filed the Charge-Sheet against him.

10. Thus, it is seen that the case is of commercial quantity and hence, the rigor of Section 37 NDPS Act will follow.

11. For ready reference, Section 37 NDPS Act is extracted hereinbelow:

"37. Offences to be cognizable and non-bailable.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973

(b) No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--

(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."

12. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if there is no reasonable ground for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, from the materials available in the case record, there cannot be any reasons to believe that the accused/petitioner is not guilty of such offence or he is not likely to commit any offence while on bail.

13. But, in the same time, it cannot be denied that the accused/petitioner is behind the bar for last 2 (two) years, 2 (two) months & 25 (twenty five) days, from the date of his arrest and and till date, the prosecution could only examine Page No.# 6/9

3 (three) witnesses out of 8 (eight) numbers of listed witnesses and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial.

14. In the case of Rabi Prakash (supra), as relied by the learned counsel for the petitioner, the Apex Court has granted bail to the accused with a view 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)9ii) of the NDPS Act."

15. In the case of Citta Biswas @ Subash Vs. The State of West Bengal [Criminal Appeal No (s) 245 of 2020 (Decided on 07.02.2022)]also, the bail was granted by the Apex Court considering the long period of incarceration and also considering the fact that out of 10 (ten) numbers of witnesses, only 4 (four) witnesses were examined by the prosecution.

16. Again, in the case of Nitish Adhikary @ Bapan Vs. The State of West Bengal [SLP (CRI) 5769/2022 (Decided on 01.08.2022)], considering the period of detention of 1 year 7 months, the bail was granted considering that the prosecution could examine only one witness and also considering that the case is at the preliminary stage of trial.

17. Further, in the case of Shariful Islam @ Sharif Vs. The State of West Bengal [SLP(Crl) 4173/2022 (Decided on 04.08.2022)]also, the Apex Court had considered the period of incarceration, i.e. 1 year 6 months, and the Page No.# 7/9

bail was granted.

18. The Apex Court in the case of Mohammed Salman Hanif Shaikh Vs. The State of Gujrat [SLP(Crl) No. 5530/2022 (Decided on 22.08.2022)] also granted bail to the accused without expressing any views on the merits of the case and only taking into consideration the period of custody.

19. In the case of Karnail Singh Vs. The State of Odisha [Criminal Appeal No. 2027/2022, arising out of SLP(Crl) No. 9067/2022 (Decided on 22.11.2022)]as well as in Dheeraj Kumar Shukla (supra) also, the Apex Court also expressed the same view and granted bail to the accused considering the period of incarceration.

20. Same view has been expressed by the Apex Court in the case of Anjan Nath Vs. the State of Assam [SLP (CRL) No. 9860/2023 (Decided on 17.10.2023)], as relied by the learned counsel for the petitioner.

21. In the instant case, it is seen that there are some materials available in the Case Diary and on the basis of which, the Investigating Officer has also filed the Charge-Sheet against the present accused/petitioner showing his involvement in the alleged offence. But it is also seen that in spite of filing of the Charge-Sheet in the year 2023, the prosecution could examine only 3 (three) witnesses out of 8 (eight) numbers of witnesses, though it a fact that the accused/petitioner is behind the bar for last 2 (two) years, 2 (two) months & 25 (twenty five) days.

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22. In view of above and also considering the observation made by the Apex Court in the various judgments, as discussed above, and further considering the other facts and circumstances of this case, this Court is of the opinion that the period of long incarceration undergone by the accused/petitioner for more than 2 (two) years, 2 (two) months & 25 (twenty five) days may be considered as a ground for bail with the conditional liberty considering the fundamental right guaranteed under Article 21 of the Constitution and, therefore, I am inclined to grant bail to the present accused/petitioner.

23. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees twenty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, Sribhumi, the accused/petitioner, namely, Biplab Das, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall regularly appear before the learned Trial Court on each and every date fixed;

(ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and