Gauhati High Court
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GAHC010225112025
2025:GAU-AS:14070
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3268/2025
MD MANAOBI
SON OF MD. AJAMAN RESIDENT OF VILLAGE-THOUBAL MOIJING. P.S.
THOUBAL, PIN-795138 DISTRICT- THOUBAL, MANIPUR,
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR G JALAN, S FAZIL,M ROJINA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MRS. JUSTICE MITALI THAKURIA
ORDER
23-10-2025
Heard Mr. G. Jalan, learned counsel for the petitioner and Mr. K. Baishya,
learned Additional Public Prosecutor, for the State respondent.
2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail
to the accused/petitioner, namely, Md. Manaobi, who has been arrested in
connection with NDPS Case No.20/2023, arising out of Khatkhati P.S. Case No.
105/2022 under Sections 21(c)/22(c)/29 of the NDPS Act, pending in the Court of
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learned Special Judge, Karbi Anglong, Diphu.
3. Scanned copy of the TCR has already been received and I have perused the
same.
4. It is submitted by Mr. Jalan, learned counsel for the petitioner that he is custody
since last 2 years, 9 months, 55 days since the date of his arrest. Mr. Jalan, learned
counsel further submitted that the accused petitioner was only an occupant of the
vehicle, wherefrom the contraband was recovered, but he is no way connected with
the alleged offence. The driver of the vehicle already fled away from the place of
interception of the vehicle and being the occupant, he got arrested in connection with
this case.
5. Though 6 (six) numbers of witnesses were cited by the prosecution, out of
which 4 (four) numbers of witness have already been examined, but the last witness
was examined on 11.02.2025 and since then, no witness has turned up before the
Court and thus, the completion of the trial will also take a considerable period.
6. Mr. Jalan, learned counsel further submitted that one of the co-accused has
already been granted bail by this Court considering the prolonged incarceration.
Considering the case of the present petitioner on the same footing and on the ground
of parity, he may be released on bail and he will appear before the learned Trial Court
and will contest the case as and when the date is fixed by the learned Trial Court.
7. Mr. Jalan, learned counsel also cited a decision of the Hon'ble Supreme Court in
the case of Rabi Prakash Vs. State of Odisha reported in 2023 LiveLaw (SC)
533 and emphasized on paragraph 4, which reads 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 custody. The prolonged incarceration, generally militates against the most
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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. Mr. Baishya, learned Additional PP submitted in this regard that the contraband
was recovered from the possession of the accused petitioner and he was the occupant
of the vehicle wherefrom the contraband was recovered. Thus, the recovery was from
the conscious possession of the accused petitioner.
9. Mr. Baishya, learned Additional Public Prosecutor, submitted in this regard that
during investigation, the I.O. collected sufficient incriminating materials against the
present accused/petitioner. The charge-sheet of the case was filed on 23.03.2023
finding prima facie case against the present petitioners and the charge has already
been framed and the trial has already commenced and till date, the prosecution has
already examined 4 (four) numbers of witnesses and the last witness was examined
on 11.02.2025. He further submitted that the case is of commercial in nature and
hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be
satisfied that the accused are not guilty of the offence and there has to be a belief
that the accused will not repeat or commit the same offence while on bail. But, from
the materials available in the Case Record and Case Diary, it cannot be said that the
present petitioners are innocent, they have not committed such offence nor there is
any probability of committing similar kind of offence if they are released on bail. More
so, he submitted that the present accused/petitioner belongs to the State of Manipur
and there is every possibility of absconding if he is released on bail and therefore, he
submitted that this is not at all a fit case to grant bail to the accused/petitioner only
considering the length of detention of the present accused/petitioner.
10. Mr. Baishya, learned Addl. PP further submitted that admittedly two of the co-
accused persons have already been released on bail considering their prolonged
incarceration, but at this stage the prosecution could examined 4 (four) witnesses out
of 6 (six) numbers of cited witnesses and hence, it can be expected that the trial of
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the case could be completed within a reasonable period of time.
11. 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.
12. It is the case of the petitioner that he is in custody for more than 2 years, 9
months, 55 days and till date, the prosecution could examine only 4(four) numbers of
witnesses out of 6 (six) numbers of listed witnesses and hence, considering the period
of incarceration, the prayer for bail may be considered.
13. On the other hand, it is the case of the defence that the accused/petitioner is
alleged to have committed the offence under the commercial quantity of the NDPS Act
and hence, only on the ground of long incarceration, he cannot be enlarged on bail.
14. It is the admitted fact that there are some incriminating materials in the Case
Diary which reveals from the statement made by the witnesses under Section 161
Cr.P.C. and apart from that, some other materials are also been collected by the I.O.
during the investigation of this case and on the basis of which, the charge-sheet has
been filed. It is also an admitted fact that the charge-sheet was filed within the
statutory period and accordingly the charges were framed by the learned Trial Court
below. However, it is a fact that till date, the prosecution could examine only 4 (four)
numbers of witnesses out of 6 (six) 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 2 years, 9 months, 55 days from the date
of his arrest.
15. 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
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conditional liberty must override the statutory embargo created under Section 37(1)
(b)9(ii) of the NDPS Act."
16. 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.
17. Again, in the case of Nitish Adhikary @ Bapan Vs. State of West Bengal
[2022 SCC OnLine SC 2068], 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.
18. Further, in the case of Shariful Islam @ Sarif 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 bail was granted.
19. The Apex Court in the case of Mohammad Salman Hanif Shaikh Vs. The
State of Gujarat [Special Leave to Appeal (Crl.) No(s). 5530/2022] 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.
20. 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.
21. 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)].
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22. In the instant case, as stated above, there are some materials available in the
Case Diary 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 charge-sheet in the year 2023,
the prosecution could examine only 4 (four) witnesses out of 6 (six) numbers of listed
witnesses, though it is a fact that the accused/petitioner is behind the bar for more
than 2 years, 9 months, 55 days.
23. 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 years, 9
months, 55 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
also on the ground of parity and, therefore, I am inclined to grant bail to the present
accused/petitioner.
24. 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, Karbi
Anglong, Diphu, the accused/petitioner, namely, Md. Manaobi, be enlarged on bail,
subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Special
Judge, Karbi Anglong, Diphu, 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;
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(iii) that the petitioner shall submit his Aadhar Card and PAN Card
before the learned Special Judge, Karbi Anglong, Diphu; and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, Karbi Anglong, Diphu, without prior permission.
25. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
