Gauhati High Court
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GAHC010147202024
2025:GAU-AS:4770
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2147/2024
JAVED AHMED LONE
S/O WAZIR LONE,
RESIDENT OF KALAROOSE, PS KALAROOSE, DIST KUPWARA, JAMMU
AND KASHMIR, 193222
VERSUS
THE UNION OF INDIA
REP. BY SC, NCB, GAUHATI HIGH COURT
Advocate for the Petitioner : MD A ISLAM, MS N KHATUN,MRS J DUTTA,MR. A K AHMED
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 21.04.2025
1. Heard learned Counsel Mr. R.Mazumdar assisted by Ms.N.Khatun, learned
counsel for the petitioner Javed Ahmed Lone who has filed this application
under Section 483 of the BNSS, 2023 with a prayer for bail as he is behind bars
since 09.04.2021 in connection with NCB Crime No. 09/2021 under Sections
20(b)(ii)(C)/29 of the NDPS Act.
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2. Mr.S.C.Keyal, learned Standing Counsel assisted by Ms.M.Deka, learned
counsel are present for the respondent NCB.
3. The allegation against the petitioner is that he was found in a truck
containing 411.039 kgs of ganja along with co-accused named in the FIR.
4. It is submitted on behalf of the petitioner that the petitioner is not involved
with this case and he was not in conscious possession of the aforementioned
ganja. It is further submitted that the petitioner has been behind the bars for 4
years and 11 days and out of 9 enlisted witnesses only two witnesses have been
examined so far and there is no possibility of culmination of trial early and as
such, petitioner’s personal right to liberty has been curtailed. It is also submitted
that no earlier antecedents could also be brought up against the petitioner.
5. It is submitted on behalf of the NCB that this Court has rejected earlier the
bail prayer of co-accused vide order dated 21.02.2025 passed in Bail Application
No.2916/2024. It is also submitted on behalf of the NCB that the Hon’ble
Supreme Court in the case of Narcotics Control Bureau-vs- Kashif
reported in 2024 SCC Online 3848, wherein it has been held that:
“39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind
the scheme, object and purpose of the Act; as also the impact on the society as
a whole. It has to be interpreted literally and not liberally, which may ultimately
frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the
provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under the NDPS Act.
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(iii) The purpose of insertion of Section 52A laying down the procedure for
disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure
the early disposal of the seized contraband drugs and substances. It was
inserted in 1989 as one of the measures to implement and to give effect to the
International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in
sub-section (1) thereof, and any lapse or delayed compliance thereof would be
merely a procedural irregularity which would neither entitle the accused to be
released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in
conducting the search and seizure during the course of investigation or
thereafter, would by itself not make the entire evidence collected during the
course of investigation, inadmissible. The Court would have to consider all the
circumstances and find out whether any serious prejudice has been caused to
the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither
vitiate the trial nor would entitle primary evidence collected during the course
of investigation, as also the statutory presumption permissible under Section 54
of the NDPS Act.”
6. Objection has been filed on behalf of the NCB that contraband was
recovered from the conscious possession of the petitioner. It is further
submitted that the ratio of the decision of the Hon’ble Supreme Court in the
Case of Rabi Prakash -vs- State of Odisha reported in 2023 SCC Online SC
1109 is not relevant to the case as nothing was recovered from the possession
of the appellant Rabi Prakash.
7. The petitioner has admitted of transporting drugs for consumption. It is
further submitted that the petitioner and the co-accused have engaged their
Advocate only on 16.08.2022 and charges were recently framed on 11.01.2024 .
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It is submitted that trial is progressing at a regular pace and there is no
infringement of right to personal liberty. On 29.03.2025, the third witness has
appeared but he was partly examined and the remaining part of his evidence is
deferred to be recorded on a later date.
8. I have considered the submissions at the Bar with circumspection.
9. It is true that the petitioner has been behind the bars from 09.04.2021.
10. I have also relied on the decision of the Hon’ble Supreme Court in the
case of Rabi Prakash (supra) wherein the appellant Rabi Prakash was
granted bail as he was behind the Bars for more than 3 ½ years and one out of
19 witnesses have been examined. This case is similar to the case of Rabi
Prakash. As the petitioner is behind the bars for 4 years and only three out of
nine witnesses have been examined, there is indeed procrastination of the trial
by the State as well as by the Court. The petitioner has also not taken the plea
that the trial is vitiated under Section 52 A of the NDPS Act. On the double
pronged conditions of Section 37 of NDPS Act, the NCB has placed objection.
The petitioner has prayed for bail on the ground of length of detention. It
appears that bail may be granted to the petitioner, considering the
procrastination of trial.
11. Considering all aspects, the prayer for bail is allowed .
12. The petitioner named above shall be released on bail on furnishing bail
bond of Rs.1,00,000/- ( Rupees One lac) with two suitable sureties of like
amount to the satisfaction of the learned trial court subject to the following
conditions:
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i) The petitioner shall co-operate with the remaining
part of the trial,
ii) The petitioner shall not leave the jurisdiction of the
Court till completion of the trial.
13. On breach of any of the above conditions, learned trial court is at liberty
to immediately cancel bail granted to the petitioner.
14. In terms of the above observations, the bail application stands disposed
of.
JUDGE
Comparing Assistant
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