Gauhati High Court

Page No.# 1/8 vs The Union Of India on 15 May, 2025

                                                                        Page No.# 1/8

GAHC010095742025




                                                                  2025:GAU-AS:6041

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

                               Case No. : Bail Appln./1521/2025

            MOHD AYYUB
            SON OF LATE MOHD YASEEN, RESIDENT OF VILLAGE ASIYA DHARAM
            KATA, SAIDABAD, P.S.DIDAULI, P.O. AMROHA, DIST. UTTAR PRADESH-
            244222



            VERSUS

            THE UNION OF INDIA
            REPRESENTED BY SC, NCB



Advocate for the Petitioner   : MR. R MAJUMDAR, MS N KHATUN,MR. M RAHMAN

Advocate for the Respondent : SC, NCB,




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                          ORDER

Date : 15-05-2025

Heard Mr. R. Majumdar, the learned counsel for the petitioner. Also head Ms. N. Deka, the learned counsel appearing on behalf of Mr. S.C. Keyal, the learned Standing Counsel, NCB.

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2. This is an application under Section 483 of BNSS praying for grant of bail to the accused/petitioner, who has been arrested in connection with N.D.P.S Case No. 324/2022, under Sections 8(C), 20(b)(ii)(C) and 29 of NDPS Act, arising out of NCB Guwahati Crime No. 18/2022, pending before the Court of learned Additional Session Judge No. 5, Kamrup (Metro), Guwahati.

3. Scanned copy of the case record has already been received and I have perused the same.

4. It is submitted by Mr. Majumdar, the learned counsel for the petitioner, that the present accused/petitioner is driver of the vehicle and not aware of the contraband. However, he got arrested in connection with this case on 22.06.2022 and for more than 2 (two) years, 10 (ten) months, he is in custody. The final complaint was filed on 16.12.2022. However, charge could be framed only on 03.09.2024 as there were some other formalities to be observed, which took a considerable time. But till date, the prosecution could examine only 2 (two) numbers of witnesses out of 10 (ten) numbers of listed witnesses and hence, 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. Therefore, he submitted that considering the period of long incarceration, the petitioner may be enlarged on bail. More so, he submitted that the co-accused have already been granted bail by this Court vide order dated 20.04.2024, passed in Bail Appln. No. 4526/2023, order dated 21.04.2024, passed in Bail Appln. No. 2147/2024 and order dated 05.05.2025, passed in Bail Appln. No. 170/2025 and hence, considering the case of the present petitioner on the same Page No.# 3/8

footing, he may also be enlarged on bail on the ground of parity.

5. Mr. Majumdar, the learned counsel for the petitioner, further relied on the following decisions in support of his case:

(i) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109]

(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order dated 01.08.2022 in SLP Crl. No. 4173/2022]

(iii) Anjan Nath. Vs. The State of Assam [Special Leave to Appeal (Crl.) No(s).

9860/2023]

(iv) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022 SCC OnLine SC 2068]

(v) Mohammad Salman Hanif Shaikh Vs. The State of Gujarat [Special Leave to Appeal (Crl.) No(s). 5530/2022]

6. Ms. Deka, the learned Additional Public Prosecutor, submitted in this regard that during investigation, the I.O. collected sufficient incriminating materials against the present accused/petitioner. The final complaint of the case was filed on 16.12.2022 finding prima facie case against the present petitioner and the charge was also framed on 03.09.2024 and the trial has already commenced and till date, the prosecution has already examined 2 (two) numbers of witnesses. She further submitted that contraband was recovered from the conscious possession of the petitioner and he was well aware about the contraband. She further submitted that the submission made by the learned counsel for the petitioner that 2 co-accused persons were already granted bail is not under the same footing of the present petitioner as in the other two matters Page No.# 4/8

there was no recovery from the conscious possession of the co-accused persons. But, here in this case the contraband was recovered from the conscious possession of the present petitioner. In this regard she also cited the decision of the Hon'ble Apex Court in the case of State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta & Anr., where in para 11 it has been held that:-

"11. However, the evidence brought before us against Mohammed Afzal [A-2], respondent in SLP (Crl.) No. 1569/2021, subject matter of the second case i.e. NCB Case FN No. 48/01/07/2019/BZU, who was granted bail vide order dated 08 th January, 2020, will have to be treated on an entirely different footing. There are specific allegations leveled against the said respondent regarding recovery of substantial commercial quantities of drugs from a rented accommodation occupied by him pursuant to which he was arrested on 16 th June, 2019. This aspect has been completely overlooked while passing the order dated 08 th January, 2020 wherein, the only reason that appears to have weighed with the High Court for releasing him on bail is that his case stands on the same footing as A-1, A-3 and A-4 who had been enlarged on bail vide orders dated 11th October, 2019, 16th September, 2019 and 09th September, 2019, in connection with the second case registered by the Department. We are of the firm view that A-2 cannot seek parity with the aforesaid co-accused and no such benefit could have been extended to him in view of Section 37 of the Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under the NDPS Act. That being the position, the petitioner-NCB succeeds in SLP (Crl.) No. 1569/2021. The bail granted to the respondent-Mohmmed Afzal [A-2] is cancelled forthwith at this stage and he is directed to surrender before the Sessions Court/Special Judge (NDPS) within a period of two weeks, for being taken into custody."

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. It is the case of the petitioner that he is in custody for more than 2 (two) years, 10 (ten) months and till date, the prosecution could examine only 2 (two) Page No.# 5/8

numbers of witnesses out of 10 (ten) numbers of listed witnesses and hence, considering the period of incarceration, the prayer for bail may be considered. Further it is the case of the petitioner that there is no probability of disposal of the case within a short or reasonable period as lots of witnesses are yet to be examined by the prosecution.

9. On the other hand, it is the case of the defence that the accused/petitioner is alleged to have committed the offence under the NDPS Act and hence, only on the ground of long incarceration, he cannot be enlarged on bail.

10. It is the admitted fact there some other materials have been collected by the I.O. during the investigation of this case and on the basis of which, the charge-sheet has been filed. However, it is a fact that till date, the prosecution could examine only 2 (two) numbers of witnesses out of 10 (ten) numbers of listed witnesses. But it also cannot be denied that the efforts have been made by the learned Special Judge to procure the attendance of the witnesses. In the same time, it also cannot be denied that the accused/petitioner is behind the bar for last more than 2 (two) years, 10 (ten) months from the date of his arrest and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial.

11. In the case of Rabi Prakash (supra), 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."

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12. In the case of Chitta Biswas @ Subhas Vs. the State of West Bengal [Criminal Appeal No(s). 245/2020 (@ SLP (Crl.) No. 8823/20190] 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.

13. Again, in the case of Nitish Adhikary @ Bapan (supra), 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.

14. Further, in the case of Shariful Islam @ Sarif (supra) also, the Apex Court had considered the period of incarceration, i.e. 1 year 6 months, and the bail was granted.

15. The Apex Court in the case of Mohammed Salman (supra) 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.

16. 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)] also, the Apex Court also expressed the same view and granted bail to the accused considering the period of incarceration.

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17. In the instant case, as stated above, there are some materials available in the case record and on the basis of which, the Investigating Officer has 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 final complaint in the year 2022, the prosecution could examine only 2 (two) numbers of witnesses out of 10 (ten) numbers of listed witnesses, though it is a fact that the accused/petitioner is behind the bar for more than 2 (two) years, 10 (ten) months.

18. In view of above and also considering the observations made by the Hon'ble 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, 10 (ten) months 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.

19. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty 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 (NDPS), Kamrup (Metro), Guwahati, the accused/petitioner, namely, Mohd. Ayyub, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Special Page No.# 8/8

Judge (NDPS), Kamrup (Metro), Guwahati, on each and every date to be fixed by the Court;

(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;