Gauhati High Court
Abrar @ Abram vs The State Of Assam on 11 March, 2025
Page No.# 1/9
GAHC010026062024
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./389/2024
ABRAR @ ABRAM
S/O ISTKAR
R/O BAHRODA, P.S. KITHOR
DIST. MEERUT, UTTARPRADESH.
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,MR. A AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 11.03.2025
1. Heard Mr. A. Ahmed, the learned counsel for the petitioner. Also heard
Mr. K. K. Das, the learned Additional Public Prosecutor, appearing for the
State of Assam.
2. This application under Section 483 of BNSS, 2023 has been filed by the
petitioner namely, Abrar @ Abram, who has been detained behind the
Page No.# 2/9
bars since 10.05.2023 (for more than 1 year 9 months) in connection with
Bazaricherra P. S. Case No. 106/2023 under Section 21(c)25/29 of the
NDPS Act, 1985.
3. The gist of accusation in this case is that on 10.5.2023, one Pranab
Mili, SI of police, had lodged an FIR before the officer in charge of
Bazaricherra police station, inter-alia, alleging that, during regular naka
checking duty at naka checkpoint of Churaibari watch post at National
Highway No. 8, one truck bearing Registration No. UP-21-CT-6858 was
intercepted. The said truck was driven by one Anas, and accompanied by
co-driver, Jilani, and the helper, Abrar, was also found in the said truck.
4. During checking of the said truck, 330 numbers of cartons containing
Phensedyl cough syrup was found therefrom. Total 33,000 bottles of
Phensedyl cough syrup with each bottle containing 100 milliliter quantity
of cough syrup were found in the said vehicle. The net weight of cough
syrup recovered was found to be 3,993 kgs.
5. On receipt of the said FIR, Bazaricherra P. S. Case No. 106/2023 under
Section 21(c)25/29 of the NDPS Act, 1985 and investigation was initiated.
6. After completion of the investigation, charge-sheet was laid against
three (03) numbers of accused persons, including the present petitioner
under Section 21(c)/25/29 of the NDPS Act, 1985 and total eight (08)
prosecution witnesses were listed in the charge-sheet.
7. Mr. A. Ahmed, the learned counsel for the petitioner has submitted that
the petitioner is the co-driver of the vehicle, which was seized in
connection with this case and from where the seized contrabands were
recovered. He has however, submitted that the petitioner was unaware
Page No.# 3/9
about the fact that the vehicle, of which he was the co-driver also
contained cough syrup bottles.
8. The learned counsel for the petitioner has submitted that as per the
challan of the consignment, the petitioner was carrying J.K. Dairy Paneer
in the vehicle, which is a food item. He submits that there were 1,318
cartons in the consignment, out of which 330 cartons were later found to
contain Phensedyl cough syrup, about which the petitioner was not aware.
He further submits that the consignment was claimed by the authorized
person of DHTC Logistics Limited.
9. The learned counsel for the petitioner has submitted that the petitioner
was not having conscious possession of contraband, which was recovered
from the vehicle.
10. He further submits that the petitioner has been languishing behind the
bars for more than one (1) year nine (9) months, however, till date out of
eight (8) listed prosecution witnesses, only three (3) have been examined
and there is no likelihood of culmination of the trial at the earliest. He
therefore, submits that on the ground of prolonged incarceration, the
petitioner is entitled to get bail.
11. In support of his submission, the learned counsel for the petitioner has
relied upon following rulings. In all these cases, the accused persons were
charged of offences relating to commercial quantity of contraband and
they were granted bail mainly on the ground of prolonged incarceration:
i. Khurshid Ahamad @ Wasim Ahmad Vs the State of Bihar
(SLP Criminal No. 16726/2023)
(Incarceration for 1 year 10 months).
Page No.# 4/9
ii. Kalpesh Gulab Bhai Khojaji Vs. the State of Gujarat (SLP
Criminal No.2325/ 2023)
(Incarceration for 1 year 5 months).
iii. Jairam Vs. the State of Rajasthan (SLP Criminal No.
2479/2024)
(Incarceration for 1 year 9 months).
iv. Shariful Islam alias Sharif Vs. the State of West Bengal
(Special Leave to Appeal (Criminal) No. 4173/2022)
(Incarceration for 1 year 6 months).
v. Anjan Nath Vs. for the State of Assam Special Leave to
Appeal (Criminal No. 9860/2023)
vi. Chitta Biswas alias Subhash Vs. the State of West Bengal
(SLP Criminal No. 8823/2019
(Incarceration for 1 year 6 months).
vii. Nitish Adhikari alias Bapan Vs. State of West Bengal SLP
Criminal No. 5769/2022
(Incarceration for 1 year 7 months).
viii. And a few other similar rulings.
12. On the other hand, Mr. K. K. Das, the learned Additional Public
Prosecutor has vehemently opposed the grant of bail to the present
petitioner on the ground that the contraband seized in this case is of
commercial quantity and therefore, the embargo of Section 37 of the
NDPS Act, 1985 is applicable to this case.
Page No.# 5/9
13. He also submits that all the three (3) witnesses, who have been
examined are independent witnesses and they have implicated the present
petitioner. He further submits that though, the scanned copy of the case
record which was called for does not contain the deposition of witnesses,
the copy of the same has been provided to him by the learned counsel for
the petitioner.
14. He further submits that three witnesses have already been examined,
and the remaining prosecution witnesses will be examined at the earliest.
Considering the quantity of contraband seized, he submits that this is not
a fit case for granting bail to the present petitioner.
15. I have considered the submissions made by learned counsel for both
sides and have perused the materials available on record including the
scanned copy of the records of Bazaricherra P. S. Case No. 106/2023.
16. 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″.
17. The Apex Court in “Rabi Prakash Vs. State of Orissa” reported in
“2023 SCC Online SC 1109,” has observed 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.”
Page No.# 6/9
18. In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh “
reported in “2024 LiveLaw (SC) 416”, the Supreme Court of India has
observed as follows: –
“………..it is to observe that failure to conclude the
trial within a reasonable time resulting in prolonged
incarceration militates against the precious
fundamental right guaranteed under Article 21 of the
Constitution of India, and as such, conditional liberty
overriding the statutory embargo created under
Section 37(1)(b) of the NDPS Act may, in such
circumstances, be considered.”
19. In this regard the observations made by the Apex Court in the case of
“Satender Kumar Antil Vs. Central Bureau of Investigation &
Another” reported in AIR 2022 SC 3386 are relevant, same are quoted
here in below:
“49. Sub-section (1) mandates courts to continue the
proceedings on a day-to-day basis till the completion
of the evidence. Therefore, once a trial starts, it
should reach the logical end. Various directions have
been issued by this Court not to give unnecessary
adjournments resulting in the witnesses being won
over. However, the noncompliance of Section 309
continues with gay abandon. Perhaps courts alone
cannot be faulted as there are multiple reasons that
lead to such adjournments. Though the section
makes adjournments and that too not for a longer
time period as an exception, they become the norm.
We are touching upon this provision only to show
that any delay on the part of the court or the
prosecution would certainly violate Article 21. This is
more so when the accused person is under
Page No.# 7/9incarceration. This provision must be applied inuring
to the benefit of the accused while considering the
application for bail. Whatever may be the nature of
the offence, a prolonged trial, appeal or a revision
against an accused or a convict under custody or
incarceration, would be violative of Article 21. While
the courts will have to endeavour to complete at least
the recording of the evidence of the private
witnesses, as indicated by this Court on quite a few
occasions, they shall make sure that the accused
does not suffer for the delay occasioned due to no
fault of his own.”
20. In the instant case also, the present petitioner has been detained
behind the bars for more than one (01) year and nine (09) months, and
only three (03) out of eight (08) listed prosecution witnesses have been
examined and there is unlikelihood that the trial would culminate soon.
21. This Court is of considered opinion that in view of the observation made
by the Apex Court in the cases cited hereinabove, for whatsoever reason,
if inordinate delay is caused and if without any fault on the part of the
petitioner, he is kept under detention for a long period, it would certainly
infringe his fundamental rights guaranteed under Article 21 of the
Constitution of India. Under such circumstances, his constitutional rights
guaranteed under Article 21 of the Constitution of India would outweigh
the fetters imposed under Section 37(1)(b)(ii) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 and he would be entitled to get bail on
the ground of prolonged incarceration only.
22. Under the facts and circumstances of this case, in the considered
opinion of this Court, the long incarceration of the petitioner has, in the
instant case as well, outweighed the embargo of Section 37 of the NDPS
Page No.# 8/9
Act, 1985. Therefore, he is entitled to get bail on the ground of the
infringement of his fundamental right guaranteed under Article 21 of the
Constitution of India.
23. In view of the above, the petitioner, namely, Abrar @ Abram, is allowed
to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties
of like amount (one of whom should be a government servant and
residing within the State of Assam) subject to the satisfaction of the
learned Special Judge, Sribhumi with the following conditions:
i. That the petitioner shall cooperate in the trial of Special
(NDPS) Case No.47/2023, which is pending in the Court of the
learned Special Judge, Sribhumi;
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 his contact details including
photocopies of his Aadhar Card or Driving License or 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 his
leave address and contact details during such leave before the Trial
Court;
vi. That the petitioner shall not commit any offence while on
bail;
vii. That the petitioner shall appear before the Officer-in-Charge
of Bazaricherra Police Station once in every fortnight till the
pendency of the Special (NDPS) Case No.47/2023;
Page No.# 9/9
viii. That any violation of the above conditions shall be a good
ground for the Trial Court to get the petitioner arrested and commit
him to custody.
24. With the above observation, this bail application is accordingly, disposed
of.
JUDGE
Comparing Assistant