Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 10 September, 2025

                                                                        Page No.# 1/9

GAHC010132472025




                                                                  2025:GAU-AS:12321

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

                               Case No. : Bail Appln./2235/2025

            SULEMAN UDDIN ALIAS CHULEMAN UDDIN
            SON OF ABDUL MOTIN
            RESIDENT OF VILL- SOUTH KEOTI, P.S. PATHARKANDI, DIST. SRIBHUMI,
            ASSAM.

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM

Advocate for the Petitioner   : MR. M AHMED, MD I H LASKAR

Advocate for the Respondent : PP, ASSAM,

                                      BEFORE
                       HON'BLE MRS. JUSTICE MITALI THAKURIA


                                           ORDER

Date : 10.09.2025.

Heard Mr. M. Ahmed, learned counsel for the petitioner. Also heard Mr. K.K. Das, learned Additional Public Prosecutor, Assam for the State respondent.

2. This is an application under Section 483 of BNSS, praying for grant of bail to the accused/petitioner, namely, Suleman Uddin @ Chuleman Uddin, who has been arrested in connection with Special NDPS Case No. 40/2022, arising out of Page No.# 2/9

Patharkandi P. S. Case No. 69/2022, under Sections 21(C)/25/29 of NDPS Act, which is pending before the Court of learned Sessions Judge, Sribhumi.

3. The scanned copy of the Trial Court Record along with the Case Diary has already been received and I have perused the same.

4. It is submitted by Mr. Ahmed, learned counsel for the petitioner, that the accused/petitioner is innocent and he is no way connected with the alleged offence. He got arrested in connection with the case on 12.12.2023 and since last one year nine months, he is in custody. There was no recovery from the conscious possession of the accused petitioner and subsequently charge sheeted on the basis of statement made by other co-accused persons.

5. Initially two accused persons were charge sheeted who were apprehended at the time of investigation along with the contraband and thereafter the present petitioner along with two other accused persons were also charge sheeted showing them as absconders. On the basis of the charge sheet filed against the accused persons, the learned Special Judge framed charge against the co-accused persons on 28.09.2022 and one prosecution witness is also examined by the learned Trial Court below but subsequently, coming to know about pendency of this case against the absconding accused persons, warrant of arrest has been issued and on the strength of the NBWA, the present petitioner got arrested on 12.12.2023.

6. Mr. Ahmed, learned counsel further submitted that though the case is charge sheeted against the present petitioner showing him absconder but there is no specific allegation brought against him nor there is any averment in the Page No.# 3/9

charge sheet on the basis of which the case was found to be established against the present petitioner. In that context, Mr. Ahmed, learned counsel for the petitioner also relied on a decision of the Hon'ble Supreme Court in the case of Sharif Ahmed and another vs. State of Uttar Pradesh and another, reported in 2024 LiveLaw (SC) 337, and emphasized in para 31 of the said judgment which reads as under:

"31. Therefore, the investigating officer must make clear and complete entries of all columns in the charge sheet so that the court can clearly understand which crime has been committed by which accused and what is the material evidence available on the file. Statements under Section 161 of the Code and related documents have to be enclosed with the list of witnesses. The role played by the accused in the crime should be separately and clearly mentioned in the charge sheet, for each of the accused persons.".

7. Mr. Ahmed further submitted that the accused petitioner is in the custody since last more than one year nine months and till date the charge is also not framed against the present accused petitioner due to absconding of one co- accused who was also shown as an absconder in the charge sheet. Thus he submitted that considering his prolonged incarceration, the prayer for bail for the present petitioner may be considered, as there is no chance for disposal of the case within a reasonable period, as the trial is not yet commenced in the present case. It is further submitted by Mr. Ahmed that out of nine numbers of cited prosecution witnesses, no witness could be examined till date by the prosecution. In that context also, he relied on a decision of the Hon'ble Supreme Court passed in Criminal Appeal No.3379/2024 (Dhirendra Kr. Choudhury vs. State of Assam), wherein the appellant was granted bail considering the period of incarceration of 17 months. Further, he relied on an order passed by this Court in Bail Application No.4312/2023 (Samrul Islam and another vs. State of Assam), wherein the observation made by the Hon'ble Supreme Court in the Page No.# 4/9

case of: (1) Rabi Prakash vs. State of Odissa reported in 2023 LiveLaw (SC) 533, (2) Nitish Adhikary @ Bapan (Supra), (3) Shariful Islam @ Sharif (Supra), etc. were considered, while passing the order of bail on the ground of long incarceration.

8. Mr. Ahmed, the learned counsel for the petitioner accordingly submitted that considering the long incarceration and other aspects of the case and also considering the fact that there is probability of disposal of the case within a reasonable period also cannot be expected at this stage, the petitioner may be released on bail. However, he is ready and willing to contest the case by appearing before the learned Trial Court below on each and every date, to be fixed by the Court.

9. Mr. Das, the learned Additional Public Prosecutor submitted in this regard that the FIR of this case was lodged on 06.03.2022 and within a reasonable period, the charge sheet was also filed on 31.07.2022 but the present petitioner was shown as an absconder and on the strength of the NBWA, he was arrested on 12.12.2023. He further submitted that though there was no recovery of contraband from the conscious possession of the petitioner but the case diary reveals that there were sufficient incriminating materials against the petitioner from whom the arrested accused Saibur purchased the brown sugar when he was arrested by the I.O. Mr. Das, the learned Addl. P.P., Assam raised vehement objection and submitted that this is a case of under commercial quantity where the rigor of Section 37 of the NDPS Act will follow and there are no such materials to consider that the accused petitioner is innocent or he will not commit the same kind of offence, if he is granted with bail. Rather, there is every chance of absconding, if the accused/petitioner is released on bail.

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10. Mr. Das, the learned Additional Public Prosecutor also submitted that the bail petition of the present petitioner was earlier rejected by this Court by directing the Special Judge to regularize the proceeding after framing charge against the absconding accused persons and there is no new ground brought in the present petition to consider the bail application by the present petitioner, which was earlier rejected by the order dated 22.04.2025. Mr. Das accordingly submitted that this is not at all a fit case to grant bail at this stage.

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

12. It is a fact that the accused petitioner got arrested in connection with this case on 12.12.2023, on the strength of the NBWA issued against him, for the allegation of recovery of contraband in commercial quantity from the co-accused person and it is also alleged that the alleged contraband substance was purchased by the co-accused from the present accused petitioner, when he got apprehended in this case.

13. It is an admitted fact that the case is of commercial quantity and hence the rigor of Section 37 of the NDPS Act will follow. For ready reference, Section 37 NDPS Act is extracted here-in-below:

"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--

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(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."

14. Thus, as per Section 37 (1) (b) of the 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/petitioners are not guilty of such offence or they are not likely to commit any offence while on bail.

15. But, in the same time, it also cannot be denied that the accused/petitioner is behind the bar since last more than one year nine months and the case is still at the stage of evidence, as one of the co-accused is still absconding who is yet to be apprehended. Further, it is seen that though the case was initially proceeded against two accused persons who were arrested in connection with this case but subsequently, finding irregularity in the proceeding, the NBWA was issued and the present accused petitioner got arrested. But due to absence of one of the co-accused person, the charge cannot be framed against the present accused petitioner and thus the trial not yet commenced, in spite of the fact that the accused petitioner is in custody for more than one year nine months. It is also seen that the prosecution had cited nine number of witnesses but till date no witness could be examined by the prosecution, as the case is still at the stage of appearance, the completion of trial within a short period also cannot be expected.

16. In the case of Rabi Prakash (supra), the Apex Court has granted bail to Page No.# 7/9

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."

17. In the case of Chitta Biswas @ Subash (supra) 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.

18. 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.

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

20. The Apex Court in the case of Mohammed Salman Hanif Shaikh (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.

21. 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.

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22. In the instant case, it is seen that there are some materials available in the Case Diary against the present accused petitioner and on the basis of which, the Investigating Officer has also filed the Charge Sheet against him showing him as absconder. Though it is a fact that there was no recovery of contraband from the conscious possession of the accused petitioner, however, there is an allegation that the contraband was purchased by the co-accused from the present petitioner. But in spite of filing the charge sheet against the present accused petitioner along with the co-accused persons in the year 2022, the prosecution could not examine any witnesses out of nine number of cited witnesses and in the same time, it is also seen that the case is still at the stage of appearance, as one of the co-accused is still absconding.

23. 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 one year nine 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.

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, one surety has to be a government servant, to the satisfaction of the learned Session Judge, Sribhumi, the accused petitioner, namely, Suleman Uddin @ Chuleman Uddin be enlarged on bail, subject to the following conditions:

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(i) 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;