Gauhati High Court
Sujit Nath vs The State Of Assam on 5 April, 2025
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GAHC010003012025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./115/2025
SUJIT NATH
S/O SATYENDRA CHANDRA NATH
R/O VILL- MADHYA KALIBARI
P.O. AND P.S. CHURAIBARI, DIST. NORTH TRIPURA, TRIPURA, PIN-799262.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR SISHIR DUTTA, MR S DUTTA,MS K BORAH,MR. S DUTTA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 05.04.2025
1. Heard Mr. S. Dutta, the learned senior counsel assisted by Mr. S. Dutta,
the learned counsel for the petitioner. Also heard Ms. N. Das, learned
Additional Public Prosecutor, appearing for the State of Assam.
2. This application, under Section 483 of BNSS, 2023 has been filed by the
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petitioner, namely, Sujit Nath, who has been detained behind the bars
since 09.09.2023 (for more than 1 year 7 months) in connection with
Special NDPS Case No. 119/2023 registered under Sections 20(b)(ii)
(C)/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(corresponding to Bazaricherra P. S. Case No. 182/2023), pending before
the Court of learned Special Judge, Sribhumi (Karimganj).
3. The gist of accusation in this case is that on 09.09.2023, one Shri
Pranab Milli, SI of Police had lodged an FIR before the Officer-In-Charge of
Bazaricherra Police Station, inter-alia, alleging that on that day during
conducting naka checking duty at naka checking point of Churaibari Watch
Post at National Highway No. 8, at about 6.30 AM, one 12 wheeler goods
carrier truck bearing Registration No. TR-01-AS-1811, coming from Tripura
Side was signalled to stop and thereafter, it was checked. During checking
of the said vehicle, 66 numbers of packets containing suspected ganja
were found concealed in secret chambers of the said vehicle. On weighing
the recovered ganja, the weight was found to be 400 kg and 200 grams.
From the said truck, the driver, Pradip Biswas, the co-driver, Mintu
Choudhury and the helper Sujit Nath (present petitioner) were
apprehended. It is also alleged that the present petitioner tried to escape
from the place of occurrence, however, he was apprehended with the help
of local people. During interrogation of apprehended persons, it came to
light that the recovered contraband was sent by one Giribhai @ Bibhash
and the present petitioner was in contact with the said person over his
mobile phone.
4. On receipt of the FIR, Bazaricherra P.S. Case No.182/2023 under
Sections 20(b)(ii)(C)/25/29 of the Narcotic Drugs and Psychotropic
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Substances Act, 1985 was registered.
5. The learned senior counsel for the petitioner has submitted that the
petitioner has been detained behind the bars for more than 1 year and 7
months and till date even the recording of the evidence of the prosecution
side has not yet been started and only the charges were framed against
the present petitioner.
6. The learned senior counsel for the petitioner has submitted that there
are ten (10) listed prosecution witnesses and the trial is unlikely to
culminate soon.
7. Additionally, he also submits that at the time of his arrest, the present
petitioner was not informed about the ground of arrest as mandated
under Article 22(1) of the Constitution of India as well as under Section 52
of the Narcotic Drugs and Psychotropic Substances Act, 1985 as well as
Section 50 of the Code of Criminal Procedure, 1973.
8. He submits that in view of the ruling of the Apex Court in case of
“Vihan Kumar Vs. State of Haryana and Another” reported in 2025
SCC Online SC 269, the violation of provision of Article 22 of the
Constitution of India, at the time of arrest would render the arrest illegal
and once the arrest is held to be vitiated, a person arrested may not allow
to be remain in custody even for a second.
9. On the other hand, Ms. N. Das, the learned Additional Public Prosecutor
has submitted that the charges against the petitioner are recently framed,
i.e., on 09.01.2025, and the prosecution side is not at fault. She submits
that as the quantity of contraband seized in this case is of commercial
quantity and, therefore, the embargo of Section 37 of the Narcotic Drugs
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and Psychotropic Substances Act, 1985 would be applicable in this case
and on that ground she opposes the grant of bail to the present petitioner.
10. 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″.
11. 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.”
12. 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.”
13. 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:
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“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.”
14. In the instant case also, the petitioner has been detained behind the
bars for more than 1 year and 7 months and not even a single witness has
been examined.
15. This Court is of considered opinion that in view of the observation made
by the Apex Court in the cases cited herein above, for whatsoever reason
if inordinate delay is caused and if without any fault on the part of the
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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.
16. In addition to that if the submissions of the learned senior counsel for
the petitioner has submitted regarding violation of the constitution
mandate of informing the ground of arrest to the petitioner at the time of
his arrest is violated, the petitioner is entitled to be released on that
ground only.
17. 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
Narcotic Drugs and Psychotropic Substances 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.
18. In view of the above, the petitioner, namely, Sujit Nath, is allowed to go
on bail of Rs. 2,00,000/- (Rupees Two 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 (Karimganj) with the following conditions:
i. That the petitioner shall cooperate in the trial of Special
NDPS Case No. 119/2023, which is pending in the Court of the
learned Special Judge, Sribhumi (Karimganj);
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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 Bazarichera Police Station once in every fortnight till the pendency
of the Special NDPS Case No. 119/2023;
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.
19. With the above observation, this bail application is accordingly, disposed
of.
JUDGE
Comparing Assistant
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