Gauhati High Court
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GAHC010142082025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2139/2025
NAJIR AHMED AND ANR
S/O AHID MIAH
R/O KALAPANIA, SOBHAPUR
P.O. ROBINDRA NAGAR
P.S. SONAMURA
DIST. SEPAHIJALA, TRIPURA.
2: CHHADEK MIAH
S/O CHARU MIAH
R/O KALAPANIA
SOBHAPUR
P.O. ROBINDRA NAGAR
P.S. SONAMURA
DIST. SEPAHIJALA
TRIPURA
VERSUS
THE UNION OF INDIA
TO BE REP. BY THE NARCOTICS CONTROL BUREAU.
Advocate for the Petitioner : MR. M A CHOUDHURY, U U KHAN,MR. A AHMED
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 29.07.2025
1. Heard Mr. M. A. Choudhury, learned counsel for the petitioners. Also
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heard Ms. M. Deka, learned counsel for the NCB.
2. This application under Section 483 of BNSS, 1973 has been filed by the
petitioners, namely, 1. Najir Ahamed and 2.Chhadek Miah, who have been detained
behind the bars since 15.03.2022, (for more than 3 years and 4 months), in
connection with NDPS Case No. 202/2022 under Sections 21(c)/29 of the NDPS
Act, 1985 pending before the Court of learned Additional Sessions Judge, FTC, No.
3, Kamrup(M), Guwahati.
3. The gist of accusation in this case is that on 11.11.2022, the Narcotic
Control Bureau had filed a complaint before the learned Sessions Judge,
Kamrup(M), inter alia, alleging that on receipt of an information through reliable
sources on 13.03.2022 that a vehicle bearing Registration No. NL-02-N-6922 would
be carrying a huge quantity of codeine based Eskyf cough syrup from Uttar
Pradesh towards Tripura. Accordingly, a search team was constituted and a naka
checking was arranged in front of Health City Hospital Area, National Highway No.
37, Khanapara, Guwahati. During naka checking, the aforesaid truck was
intercepted. During search of the said truck, 29,900 bottles of codeine based Eskyf
cough syrup were recovered and both the petitioners were found in the said
vehicle.
4. The learned counsel for the petitioners has submitted that the petitioners
are prayed for bail mainly on the ground of prolonged incarceration. He submits
that both the petitioners are detained behind the bars for more than 3 years and 4
months. However, till date only four out of ten listed witnesses have been
examined. He also submits that further examination of PW-3 is reserved.
5. The learned counsel for the petitioners further submits that considering
the fact that six more witnesses are yet to be examined and there is unlikelihood of
the trial being concluded at the earliest. He submits that the prolonged
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incarceration of the petitioners have resulted in violation of the fundamental rights
of the petitioners guaranteed to them under Article 21 of the Constitution of India
and in such cases, the embargo of Section 37 of the NDPS Act, 1985 would be
overridden by the fundamental rights of the petitioners, hence, he prays for
allowing the petitioners to go on bail.
6. On the other hand, learned counsel for the NCB has vehemently opposed
the grant of bail to the petitioners on the ground that the quantity of contraband
seized in this case is of commercial quantity. She also submits that the embargo of
Section 37 of the NDPS Act, 1985 would be applicable to this case. She also
submits that the contraband in this case was recovered from conscious possession
from the both the petitioners.
7. The learned counsel for the NCB also submits that only six witnesses are
to be examined and it is likelihood the trial will culminate soon. Hence, she
opposes grant of bail to the petitioners.
8. I have considered the submissions made by the learned counsel for both
sides and have gone through the scanned copy of the case records of NDPS Case
No. 202/2022,
9. 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″.
10. 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
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the statutory embargo created under Section 37(1) (b)(ii) of the NDPS
Act.”
11. 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.”
12. 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 incarceration. 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.”
13. In the instant case also, the petitioners are languishing behind the bars for
more than 3 years and 4 months and only four out of ten prosecution witnesses
have been examined. It is unlikelihood that the trial would culminate soon in the
aforesaid case.
14. This Court is of considered opinion that in view of the observation made by
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the Apex Court in the cases cited here in above, for whatsoever reason if
inordinate delay is caused and if without any fault on the part of the petitioners,
they are kept under detention for a long period, it would certainly infringe their
fundamental rights guaranteed under Article 21 of the Constitution of India. Under
such circumstances, their 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 they would be
entitled to get bail on the ground of prolonged incarceration only.
15. 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 Act, 1985. Therefore, they are
entitled to get bail on the ground of the infringement of his fundamental right
guaranteed under Article 21 of the Constitution of India.
16. In view of the above, the above named petitioners are allowed to go on bail
of Rs.1,00,000/- (Rupees One Lakh only) each with two sureties of like amount
subject to the satisfaction of the learned Additional Sessions Judge, FTC, No. 3,
Kamrup(M), Guwahati with the following conditions:
i. That the petitioners shall co-operate in the trial of NDPS Case No. 202/2022,
which is pending in the Court of the learned Additional Sessions Judge, FTC,
No. 3, Kamrup(M), Guwahati;
ii. That the petitioners shall appear before the Trial Court as and when so
required by the Trial Court;
iii. That the petitioners 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;
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iv. That the petitioners 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 petitioners shall submit their leave address and contact details during
such leave before the Trial Court; and
17. This bail application is accordingly disposed of.
JUDGE
Comparing Assistant