Gauhati High Court
Smt Kimboi Kahmei vs The Union Of India on 24 November, 2025
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GAHC010210042025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3089/2025
SMT KIMBOI KAHMEI
D/O- CHINNEILAM RESIDENT OF 56, GADAILONG, WARD NO.-IV, P.O-
TAMENGLONG, P.STAMENGLONG, DISTRICT- TAMENGLONG, MANIPUR-
795141
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL OF DRI.
Advocate for the Petitioner : G UDDIN, P ADHIKARI,MR A K AZAD,MR A H SARKAR
Advocate for the Respondent : SC, DRI, MR. D BORA,SC, DRI,.
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 24.11.2025
1. Heard Mr. G. Uddin, the learned counsel for the petitioner. Also
heard Mr. D. Bora, the learned standing counsel appearing for the
Directorate of Revenue Intelligence (DRI).
2. This application under Section 483 of the BNSS, 2023 has been
filed by the petitioner, namely, Smt. Kimboi Kahmei, who is detained
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behind the bars since 25.01.2025 (for the last about 1 year and 10
months) in connection with NDPS Case No. 241/2024 under
Sections 21(c)/29 of the NDPS Act, 1985 pending before the Court
of learned Additional Sessions Judge No. 5, Kamrup (M), Guwahati.
3. The gist of the accusation in this case is that on receipt of
information through reliable sources to the effect that on
25.01.2024, two persons will be carrying huge quantity of
contraband in a vehicle bearing Registration No. AS-01-DL-3273, a
search team was constituted and it intercepted the said vehicle and
a search was made in the said vehicle. During search, the present
petitioner was found in the said vehicle along with the co-accused
and 150 numbers of soap cases were recovered therefrom
containing suspected heroin. On weighing of the heroin, the weight
of the same was found to be 1589.52 grams. After completion of
the investigation, the final complaint was lodged in this case on
12.07.2024.
4. The learned counsel for the petitioner has submitted that the
petitioner is seeking bail mainly on the ground of prolonged
incarceration. He submits that though the petitioner being a lady,
has been detained behind the bars for about 1 year and 10 months,
however, till date only three witnesses have been fully examined
out of total 12 listed prosecution witnesses. As such, there is
unlikelihood of early culmination of the trial.
5. He submits that the prolonged incarceration of the petitioner
has infringed the fundamental rights guaranteed to her under
Article 21 of the Constitution of India and it overrides the embargo
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of Section 37 of the NDPS, Act 1985.
6. The learned counsel for the petitioner has also cited the rulings
of the Apex Court in (i) " Shariful Islam @ Sarif Vs. State of
West Bengal" (order dated 04.08.2022 in SLP Criminal No.
4173/2022), (ii) "Dheeraj Kumar Shukla Vs. State of Uttar
Pradesh" [order dated 25.10.2023 passed in Special Leave to
Appeal (Criminal) No. 6690/2022], (iii) "Anjan Nath Vs. The
State of Assam [Order dated 17.10.2023 passed in Special Leave
to Appeal (Criminal) No. 9860/2023], (iv) "Nitesh Adhikari Vs.
State of West Bengal" (Order dated 04.05.2022 passed in SLP
Criminal No. 5769/2022) and (v) "Md. Salman Hanif Shaikh Vs.
State of Gujarat" (Order dated 22.08.2022 passed in SLA Criminal
No. 5530/2022), wherein the petitioners (who were facing trial for
possessing a commercial quantity of contraband) were granted bail
by the Apex Court. However, due to the prolonged incarceration in
all the above mentioned cases, the petitioners were allowed to go
on bail. Therefore, on the same principle, the learned counsel for
the petitioner has also submitted that in the instant case also the
petitioner, who has been languishing behind the bars for about 1
year 10 months, may be allowed to go on bail.
7. He submits that the Apex Court in several cases where the
offence involved is relating to commercial quantity of contraband
under NDPS Act, 1985 and where the petitioners were detained
behind the bars for more than one year six months have granted
bail to such petitioners merely on the ground of prolonged
incarceration. He, therefore, submits that the petitioner may also be
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granted bail on the ground that their fundamental rights guaranteed
to her under Article 21 of the Constitution of India has been
violated due to such prolonged incarceration.
8. The learned counsel for the petitioner has also submitted that in
the meanwhile two of the co-accused arrested along with the
petitioner in the above-mentioned case have already been released
by this Court by order dated 27.08.2025 passed in Bail Application
No. 2445/2025.
9. On the other hand, Mr. D. Bora, the learned standing counsel for
the DRI has submitted that the contraband seized in this case
involves commercial quantity, hence, the embargo of Section 37(1)
(b)(ii) of the NDPS Act, 1985 would be applicable in this case.
10. He has submitted that unless the petitioner is able to overcome
the twin conditions mentioned in the aforesaid provision, she may
not be granted bail in this case in spite of long incarceration as the
statutory embargo of Section 37 of the NDPS Act, 1985 would be
applicable in this case. In support of his submission, he has cited
the judgment of Apex court in the case of "Union of India Vs.
Vigin K. Varghese" (SLP Criminal No. 7768/2025).
11. He also submits that in view of the provisions of Section 479 of
the BNSS, 2023, the petitioner may not be released on bail unless
she has undergone detention for a period which may extend up to
one and half year of the imprisonment, specified for the offence for
which she has been charged in this case i.e., Section 21(c)/29 of
the NDPS Act, 1985, which is punishable for an imprisonment which
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may extend up to 20 years. In support of his submission, he has
cited the following rulings:
i. Satender Kumar Antil Vs. CBI & Another reported
in AIR 22 SC 336
ii. State Vs. Pallulabid Ahamad Arimutta and
others reported in 2022 1 SC J 454
iii. Sahil Sharma and Other Vs. Union of India
reported in 2024 4 GLT 766
iv. Saheb Sahani Vs. Union of India order dated
14.07.2025 in Bail Application No. 1918/2025
12. I have gone through the materials on record carefully and also
considered the submission made by the learned counsel for both
sides. I have also gone through the rulings cited by the learned
counsel for both sides very carefully.
13. Though, for an offence involving commercial quantity of
contraband under the NDPS Act, 1985, the embargo of Section 37
of the NDPS Act, 1985 is applicable and an accused has to
overcome the twin conditions mentioned in Section 37 (1)(b)(ii) of
the NDPS Act, 1985 to get bail in such cases, however, in a situation
where due to prolonged incarceration of such an accused his
fundamental rights guaranteed under Article 21 of the Constitution
of India are violated, the embargo of Section 37 of the NDPS Act,
1985 may not be applicable, as it has to give way to the
fundamental rights guaranteed to such an accused under Article 21
of the Constitution of India.
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14. The Supreme Court of India in "Mohd Muslim @ Hussain Vs.
State (NCT of Delhi)" reported in "2023 SCC Online SC 352"
has observed that "grant of bail on the ground of undue delay in
trial cannot be said to be fettered by Section 37 of the NDPS Act,
1985".
15. The Apex Court in "Rabi Prakesh Vs. State of Orissa"
reported in 2023 live law (SC) 533, wherein it has been
observed by the Apex Court 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)(ii) of the NDPS Act."
16. In view of the observation made by the Apex Court, this Court is
of the considered opinion that if, under the facts and circumstances
of a case, this Court comes to the finding that there is an undue
delay in the completion of the trial, and that the incarceration of the
petitioner is long enough, he would be entitled to get bail on the
ground of such prolonged incarceration, as in such a case of
prolonged incarceration, the right to life and personal liberty
guaranteed to the petitioner under Article 21 of the Constitution of
India would outweigh the fetter imposed under Section 37 of the
NDPS Act, 1985.
17. It is also pertinent to mention herein that the Supreme Court of
India had granted bail to an accused facing charges for possession
of a commercial quantity of contraband only on the ground of
prolonged incarceration in "Shariful Islam @ Sarif Vs. State of
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West Bengal" (Order dated 04.08.2022 passed in SLP Criminal No.
4173/2022), wherein the accused was detained behind bars for one
year and six months.
18. In "Nitesh Adhikari Vs. State of West Bengal" (Order dated
04.05.2022 passed in SLP Criminal No. 5769/2022), the Apex Court
granted bail to the accused facing accusation under Section 21(c) of
the NDPS Act, 1985 on the ground of incarceration of one year
seven months.
19. Similarly, in "Md. Salman Hanif Shaikh Vs. State of Gujarat"
(Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022),
the petitioner was granted bail by the Apex Court on the ground of
prolonged incarceration of two years.
20. In "Chitta Biswas Alias Subha Vs. The State Of West
Bengal"' (Order dated 07.02.2020 passed in SLP Criminal No.
8823/2019), the Apex Court granted bail to the petitioner, who was
facing a trial for possessing a commercial quantity of contraband on
the ground of prolonged incarceration of 1 year 6 month.
21. On the other hand, the provision of Section 479 of the BNSS,
2023 prescribes the maximum period beyond which the under trial
prisoner cannot be kept detained behind the bars during the
pendency of trial, the said provisions prescribes the maximum limit
of detention of an under trial prisoner only, however, it does not lay
down that before the expiry of the limit prescribed in Section 479 of
the BNSS, 2023, if the Court comes to a finding that under the facts
and circumstances of a particular case the fundamental rights
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guaranteed to a under trial prisoner has been violated due to his
prolong incarceration, he may not be released at an early period
then the maximum upper limit prescribed by the Section 479 of the
BNSS, 2023.
22. This court is of the considered opinion that the rulings of the
Apex court in the case of Satender Kumar Antil Vs. CBI &
Another (Supra) is in no way contrary to the observation made
by the Apex Court in the case of Shariful Islam @ Sarif Vs.
State of West Bengal (Supra), Rabi Prakesh Vs. State of
Orissa (Supra), Nitesh Adhikari Vs. State of West Bengal
(Supra), Md. Salman Hanif Shaikh Vs. State of Gujarat
(Supra) and Chitta Biswas Alias Subha Vs. The State Of West
Bengal (Supra), as in the later cases, the Apex Court has
specifically dealt with the issue of overriding impact of the embargo
of Section 37 of the NDPS Act, 1985 in view of violation of
fundamental rights of the detained person guaranteed to him under
Article 21 of the Constitution of India due to his prolong
incarceration.
23. In the instant case, this Court is of the considered opinion that
the incarceration undergone by the present petitioner, without
culmination of the trial, is long enough which has infringed the
fundamental rights guaranteed to her under Article 21 of the
Constitution of India and as such grant of bail to her cannot be
fettered by the embargo under Section 37 of the NDPS Act, 1985,
more so, as two of the co-accused have already been granted bail
on the ground of long incarceration in the above mentioned case.
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24. In view of the above, both the above named, petitioner, is
allowed to go on bail of Rs.2,00,000/- (Rupees Two Lakhs only)
with two sureties of like amount (one of whom should be a
government servant) subject to the satisfaction of the Trial Court
with the following conditions:
i. That the petitioner shall co-operate in the trial of
NDPS Case No. 241/2024, which is pending in the Court of
learned Additional Sessions Judge No. 5, Kamrup(M);
ii. That the petitioner shall appear before the Trial
Court as and when so required by the Trial Court;
iii. That the petitioner shall not directly or indirectly
make any inducement, threat, or promise to any person
who may be acquainted with the facts of the case, so as
to dissuade such person from disclosing such facts before
the Trial Court in the trial pending against the present
petitioner;
iv. That the petitioner shall provide her contact
details including photocopies of her Aadhar Card, Driving
License, PAN card, mobile number, and other contact
details before the Trial Court;
v. That the petitioner shall not leave the jurisdiction
of the Trial Court without prior permission of the Trial
Court and when such leave is granted by the Trial Court,
the petitioner shall submit her leave address and contact
details during such leave before the Trial Court; and
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vi. That the petitioner shall not commit any similar
offence while on bail.
25. This bail application is, accordingly, disposed of.
JUDGE
Comparing Assistant
