Gauhati High Court
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GAHC010101522025
2025:GAU-AS:10493
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1589/2025
DALIM SHEIKH
S/O- IMAM HUSSAIN,
R/O. -VILLAGE- MATHA BHONGA,
P.S.- KALIACHAWK,
DIST- MALDA, WEST BENGAL,
PIN-736146
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP ASSAM
Advocate for the Petitioner : MR. M HUSSAIN, S.S. ALI.,S W HUSSAIN,MR. A Z AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 08-08-2025
1. Heard Mr. A.Z. Ahmed, learned counsel for the petitioner. Also heard Mr. B.
Sarma, learned Addl. Public Prosecutor, Assam.
2. This application under Section 483 of BNSS has been filed by the petitioner,
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namely Dalim Sheikh, who has been detained behind the bars since 06.12.2021
(for last more than 3 years 8 months) in connection with NDPS Case
No.95/2022, under Sections 21(c)/29 of the NDPS Act, 1985, which is presently
pending before the Court of learned Addl. Sessions Judge No.3, Kamrup (M) at
Guwahati.
3. The gist of accusation in this case, in brief, is that on 05.12.2021, one
Abhijit Gogoi, SI of Police had lodged an FIR before the Officer-in-Charge of
Garchuk P.S., inter-alia, alleging that an information was received through
reliable sources regarding a vehicle carrying huge quantity of prohibited drugs.
Accordingly, a police team was constituted and a naka checking was organized
at Raju Parking situated at Boragaon and a vehicle bearing Registration No. WB-
65C-2150 was intercepted. During search of the said vehicle, two persons
including the present petitioner were apprehended therefrom. During search of
the said vehicle 2.56 kgs of suspected heroin was recovered therefrom.
4. The learned counsel for the petitioner has submitted that the petitioner
has been facing trial in the aforesaid case before the Court of learned Addl.
Sessions Judge No.3, Kamrup (M) at Guwahati and all the prosecution witnesses
have already been examined and the prosecution evidence have been closed by
the learned Trial Court vide order dated 07.07.2023. He further submits that
though the NDPS Case No.95/2022 was fixed for examination of the accused
persons under Section 313 of the Code of Criminal Procedure, however, due to
the absence of co-accused, namely Dilwar @Md. Dilwar, the trial could not be
proceeded further. The learned counsel for the petitioner has also submitted
that on 17.07.2023, the co-accused Dilwar @Md. Dilwar was granted interim bail
with certain conditions for performing the last rites of his deceased brother.
However, the co-accused Dilwar @Md. Dilwar jumped bail and thereafter, never
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appeared before the learned Trial Court and the trial is not progressing since
then. He further submits that the petitioner had also filed application for
splitting up of his case from that of the absconding accused on two occasions,
however, the learned Trial Court has not yet decided the application filed by the
present petitioner in spite of an observation by this Court that the petitioner
may file such an application before the Trial Court. The learned counsel for the
petitioner has submitted that the prolonged incarceration of the petitioner for
more than 3 years 8 months have resulted in infringement of his fundamental
rights guaranteed under Article 21 of the Constitution of India. He therefore
submits that on the ground of prolonged incarceration and consequent violation
of his fundamental rights guaranteed under Article 21 of the Constitution of
India, he may be allowed to go on bail.
5. The learned Addl. Public Prosecutor, while pointing out that the contraband
seized in this case is of commercial quantity and therefore, the embargo of
Section 37 of the NDPS Act would be applicable, has submitted that in case this
Court grants bail to the petitioner, very strict conditions may be imposed, as the
petitioner hails from West Bengal and as the co-accused has already jumped
bail.
6. I have considered the submissions made by the learned counsels for both
sides. The Apex Court in several of its judgments has observed that prolonged
incarceration overrides the embargo of Section 37 of the NDPS Act. In a case
where the Court comes to a finding that the incarceration of a person is long
enough so as to infringe the fundamental rights guaranteed to him under Article
21 of the Constitution of India, it would override the embargo of Section 37 of
the NDPS Act, 1985. In the instant case also, though all the witnesses have
been examined way back in the year 2023 and since 21.07.2023 this case is
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pending for examination of accused under Section 313 Cr.P.C., this Court is of
the considered opinion that the right of the petitioner to get expeditious trial has
been violated in this case. The prolonged incarceration of the petitioner has
resulted in violation of his fundamental rights guaranteed to him under Article
21 of the Constitution of India and therefore, he is entitled to get bail.
7. For the aforesaid reasons, the petitioner, namely, Dalim Sheikh is hereby
directed to be released on bail of Rs. 2,00,000/- (Rupees Two Lakh only) with
two sureties of like amount (one of whom should be a resident of the State of
Assam) subject to the satisfaction of the learned Addl. Sessions Judge No.3,
Kamrup (M) at Guwahati with the following conditions:
i. That the petitioner shall cooperate in the trial of NDPS Case
No.95/2022, which is pending in the Court of learned Addl. Sessions
Judge No.3, Kamrup (M) at Guwahati;
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, 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
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leave address and contact details during such leave before the Trial
Court; andvi. That the petitioner shall not commit any similar offence while
on bail.
8. With the above observation, this bail application is accordingly, disposed of.
JUDGE
Comparing Assistant