Gauhati High Court
Bail Appln./1868/2024 on 9 January, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/21
GAHC010107302024
2025:GAU-AS:440
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Application No. 1564/2024
Chandra Vir [Age - 37 years], Son of Uday Singh, Resident of
54 Chandpur, Khurd, Bajna Dehat, Mathura, District -
Mathura, Uttar Pradesh. PIN - 281201.
......Accused/Petitioner
-VERSUS-
Narcotics Control Bureau, Guwahati Zonal Unit, Guwahati,
Assam.
....Respondent
With Bail Application No. 1868/2024 Rajeev Upadhay @ Rajeev Upadhayay [Age - 29 years], Son of Jitendra Upadhayay, Resident of Paschim Mohalla, Lohvan, P.S. - Jamuna Pallipar, District - Mathura, Uttar Pradesh, PIN - 281204.
......Accused/Petitioner
-VERSUS-
Narcotics Control Bureau, Guwahati Zonal Unit, Guwahati, Assam.
....Respondent Page No.# 2/21 Advocates :
Accused/Petitioner : Mr. N. Anand, Advocate.
Respondent : Mr. S.C. Keyal, Special Public Prosecutor,
Narcotics Control Bureau.
Date of Judgment & Order : 09.01.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
1. These two applications are preferred by the accused-petitioners viz. [i] Chandra Vir [the petitioner in B.A. no. 1564/2024]; and [ii] Rajeev Upadhay @ Rajeev Upadhayay [the petitioner in B.A. no. 1868/2024]; under Section 439, Code of Criminal Procedure, 1973 ['CrPC' and/or 'the Code', for short], seeking their release on bail in connection with NDPS Case no. 89 of 2020, arising out of NCB Crime Case no. 08 of 2020, registered for offences under Section 8[c] read with Section 20[b][ii][C] and Section 29 of the Narcotic Drugs and Psychotropic Substances [NDPS] Act, 1985, the trial of which is presently pending before the Court of learned Additional Sessions Judge No. 3 [FTC], Kamrup [Metro] at Guwahati ['the Special Court', for short] in the form of NDPS Case no. 89 of 2020.
2. As both the applications have arisen out of the same case, NDPS Case no. 89 of 2020 read with NCB Crime Case no. 08 of 2020 and the learned counsel for the parties have submitted that the two petitioners are similarly Page No.# 3/21 situated, both the bail applications are taken up together for consideration, as agreed to by the learned counsel for the parties.
3. The petitioner, Rajeev Upadhay @ Rajeev Upadhayay had earlier approached this Court by preferring a bail application under Section 439, CrPC and the same was registered and numbered as B.A. no. 553/2021. The said bail application was rejected by an Order dated 27.04.2021 after considering the materials on record qua the provisions contained in Section 37 of the NDPS Act. The events leading to the arrest and custody of the petitioners, as already culled out in the earlier Order dated 27.04.2021 [supra] as well as from the documents and materials placed before this Court, can be mentioned as follows :-
3.1. At about 12-15 hours on 22.05.2020, the Intelligence Officer, NCB, Guwahati received an information from a reliable source to the effect that two persons viz. [1] Rajeev Upadhay @ Rajeev Upadhayay [the petitioner in B.A. no.
1868/2024]; and [2] Sri Chandra Vir [the petitioner in B.A. No. 1564/2024]; would be carrying a huge quantity of Ganja in a truck bearing registration no. JK-02/AG-8645 ['the subject-vehicle', for short]. The subject-vehicle would be coming from Agartala and would arrive near a health institution named 'Health City Hospital', located at Khanapara, Guwahati on National Highway 37 at about 16-00 hours on 22.05.2020.
3.2. The said information was reduced into writing and submitted before the Superintendent, NCB, Guwahati on 22.05.2020 and on being directed, a team was constituted with one of them was authorized to search, seize and arrest as Page No.# 4/21 Investigating Officer [I.O.]. It is stated that at around 15-40 hours, the team by sharing information, called for the assistance of two independent witnesses in order to carry out the process of search and seizure in their presence. The subject-vehicle, as per information above, arrived near the Health City Hospital, Khanapara, Guwahati at about 17-10 hours on 22.05.2020.
3.3. Having seen the arrival of the subject-vehicle with two occupants inside it, the NCB team along with the two independent witnesses requested the two occupants to get down from the subject-vehicle. When asked, they introduced themselves as [1] Rajeev Upadhay @ Rajeev Upadhayay [the petitioner in B.A. no. 1868/2024]; and [2] Sri Chandra Vir [the petitioner in B.A. no. 1564/2024].
3.4. Thereafter, search was carried out inside the subject-vehicle. During the search, five nos. of jute sacks containing dried flowering tops, believed to be Ganja, were recovered from the carrier part of the subject-vehicle just behind the cabin, concealed among bundles of empty jute sacks. A small quantity of homogenous mixture of said flowering tops was taken out from each of the five jute sacks. When tested with the help of the drug detection kit carried by the team, it gave positive result for Cannabis [Ganja].
3.5. Apart from the above seizure, certain other articles were seized from the possession of the two accused persons. When weighed with the help of digital weighing machine in presence of the independent witnesses and the two accused persons, the total weight of the suspected Ganja was found to be 101 kgs. On reasonable belief that an offence had been committed under Section 8[c] read with Section 20[b][ii][C]/29 of the NDPS Act, all the recovered items Page No.# 5/21 including the suspected Cannabis [Ganja] and the subject-vehicle were seized. The search-cum-seizure process was completed at about 23-30 hours on 22.05.2020.
3.6. Thereafter, notices under Section 67 of the NDPS Act were stated to have been served on the accused persons to record their voluntary statements and they having agreed to do so, were brought to the NCB Office, Guwahati for recording their statements. The voluntary statements, purportedly under Section 67 of the NDPS Act, were recorded.
3.7. Both the arrested accused persons were produced before the Court of learned Chief Judicial Magistrate, Kamrup [Metro], Guwahati on 24.05.2020. During the course of investigation, another accused viz. Ramu Ghosh was arrested based on information provided by these two arrested accused persons. The accused, Ramu Ghosh was arrested from West Bengal and after transit remand, he was produced before the Court of learned Sessions Judge, Kamrup, Guwahati. Upon such production, he was remanded initially to Police/NCB custody and thereafter, to judicial custody. Another accused person, Murshid Alam was found to be absconding.
3.8. The samples taken out from the total quantity were sent to the Forensic Science Laboratory [FSL], Guwahati for chemical examination. The chemical examination report was forwarded by the FSL vide its Report dated 15.06.2020. As per the Report of the FSL, the samples gave positive result for Cannabis [Ganja].
Page No.# 6/21 3.9. Upon completion of investigation, the NCB submitted the complaint under Section 36[1][d], NDPS Act in NCB Crime Case no. 08 of 2020 before the jurisdictional Special Court against four persons viz. [1] Rajeev Upadhay @ Rajeev Upadhayay; [2] Sri Chandra Vir; 3] Sri Ramu Ghosh; and [4] Md. Mursid Alam. While the first three accused persons were shown to be in custody, the accused no. 4 was shown as an absconder in the Offence Report.
3.10. In the complaint so filed under Section 36[1][d] of the NDPS Act in NCB Crime Case no. 08 of 2020, the roles of the four charge-sheeted accused were described as under :-
[i] Chandra Vir - He was the trafficker of drugs and was a driver of seized truck bearing registration No-JK-02/AG-8645 and as per his statement he was in conscious possession of seized 101 Kgs. Ganja which was supplied from Agartala by later arrested Ramu Ghosh and was to deliver the contraband item to Murshid Alam at Dalkhola, Uttar Dinajpur, West Bengal and he was in a constant contact with Ramu Ghosh and Murshid Alam.
[i] Rajeev Upadhyay - He was the trafficker of drugs and a second driver of the seized truck bearing registration no.-JK-02/AG-8645 and as per his statement he was in conscious possession of seized 101 Kgs. Ganja and was to deliver the contraband item to Murshid Alam at Dalkhola, Uttar Dinajpur, West Bengal with Chadra Vir and he was in constant contact with Ramu Ghosh and Murshid Alam.
[iii] Ramu Ghosh - He was main supplier of the seized 101 Kgs. Ganja and as per his statement under his direction the seized Ganja was loaded into Page No.# 7/21 truck bearing registration no. JK-02/AG-8645 from Agartala, Tripura by both Chadra Vir and Rajeev Upadhyay was conscious of and illegal trafficking of Ganja was to deliver the contraband item to Murshid Alam at Uttar Dinajpur, West Bengal and he was constant contacted with Chadra Vir, Rajeev Upadhyay and Murshid Alam.
[iv] Md. Murshid Alam - He was the main receiver of the seized 101 Kgs Ganja which was Chandra Vir and Rajeev Upadhyay was loaded under direction of arrested Ramu Ghosh [Supplier] into the seized truck bearing registration no. JK-02/AG-8645 was to take deliver at Dalkhola, Uttar Dinajpur, West Bengal as they revealed on their statements and he was in constant contact with Chandra Vir, Rajeev Upadhyay and Ramu Ghosh as per voluntary statement of Ramu Ghosh, Murshid Alam financed also the whole drugs.
4. On submission of the complaint under Section 36[1][d], NDPS Act by the Investigating Agency, NCB on 17.11.2020 before the Court of learned Sessions Judge, In-Charge, Kamrup [Metro], Guwahati, the case has been registered and numbered as NDPS Case no. 89 of 2020. By an Order dated 17.11.2020, the learned Sessions Judge, In-Charge, Kamrup [Metro] Guwahati transferred the case records of NDPS Case no. 89 of 2020 to the Court of learned Additional Sessions Judge [FTC] No. 3, Kamrup [Metro] at Guwahati ['the Special Court'] for disposal.
5. I have heard Mr. N. Anand, learned counsel for the accused-petitioners and Mr. S.C. Keyal, learned Special Public Prosecutor for the respondent Narcotics Control Bureau [NCB].
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6. On institution of the two bail applications, the scanned copies of the case records of NDPS Case no. 89 of 2020, arising out of NCB Crime Case no. 08 of 2020, were requisitioned. The scanned copies of the case records were accordingly received and the same have been perused. The respondent NCB have also filed status-cum-objection reports in both the applications. The learned counsel for the parties, during the course of their submissions, have referred to a nos. of decisions of the Hon'ble Supreme Court of India and of this Court in support of their respective submissions and reference of some of these decisions would be made in the later part of this order at appropriate places. The learned Special Public Prosecutor for the respondent NCB has also submitted written submissions.
7. The learned counsel appearing for the petitioners has submitted on the provisions contained in Section 37 of the NDPS Act as well as on the fundamental right guaranteed under Article 21 of the Constitution of India in support of the prayer of the petitioners' release on bail. Similarly, the learned Special Public Prosecutor appearing for the respondent NCB has also made submissions on the rigours contained in Section 37 of the NDPS Act and the restrictions placed on the Court by Section 37 of the NDPS Act in the matter of granting bail to an accused person who is found to be involved in an offence pertaining to contraband like Ganja of commercial quantity.
8. It is settled law that in respect of an offence under the NDPS Act involving commercial quantity, the powers of this Court to grant bail under Section 439, CrPC are subject to the limitations contained in Section 37 of the Page No.# 9/21 NDPS Act and the restrictions placed on the powers of the Court under Section 37, NDPS Act are applicable to this Court also in the matter of granting bail.
9. Section 37 of the NDPS Act starts with a non-obstante clause. Keeping the non-obstante clause in mind, a reading of sub-section [2] of Section 37 of the NDPS Act makes it clear that the power to grant bail to a person accused of having committed an offence either under Section 19 or Section 24 or Section 27A and also offences involving commercial quantity under the NDPS Act is not only subject to the limitations imposed under Section 439, CrPC, it is also subject to the restrictions placed by sub-clause [b] of sub-section [1] of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other two conditions viz. [i] the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and [ii] that he is not likely to commit any offence while on bail, have to be satisfied. In other words, these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail. The operative part of Section 37, NDPS Act is in the negative form. Such stringent restrictions have been put on the discretion of the Court for considering application for release of a person accused of offences prescribed therein by the Legislature consciously in view of the seriousness of the offences. The conditions mentioned in Section 37 of the NDPS Act are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on 'reasonable grounds'.
10. The issue as regards prolonged incarceration of the accused implicated or charged with an offence under NDPS Act has come under consideration of Page No.# 10/21 the Hon'ble Supreme Court of India and of this Court in a number of cases including the cases cited by the learned counsel for the parties.
11. The learned Special Public Prosecutor for the respondent NCB has referred to a three-Judge decision in Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and another, [2005] 2 SCC 42, to submit that in the said decision, it has been observed as a trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. It has been observed therein that under the criminal laws of the country, a person accused of offences which are non- bailable, is liable to be detained in custody during the pendency of bail unless he is enlarged on bail in accordance with law. It has been held that such detention cannot be questioned as being violative of Article 21 since the same is authorized by law. In Kalyan Chandra Sarkar [supra], the respondent sought grant of bail in a Sessions triable case wherein he was charged for offences punishable under Section 302 read with Sections 307/34/120B, IPC read with Section 27 of the Arms Act.
11.1. Per contra, the learned counsel for the petitioners has referred to a three-Judge decision in Union of India vs. K.A. Najeeb, [2021] 3 SCC 701, to point out that in the said decision, it has been observed that even in the case of special legislations like the Terrorist and Disruptive Activities [Prevention] Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 which have rigorous conditions for grant of bail, the Court in Paramjit Singh vs. State [NCB of Delhi], [1999] 9 SCC 252; Babba alias Shankar Raghuman Rohida vs. State Page No.# 11/21 of Maharashtra, [2005] 11 SCC 569; Umarmia alias Mamumia vs. State of Gujarat, [2017] 2 SCC 731, had enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. It has also been observed there that the constitutionality of harsh conditions for bail in such special enactments, has thus, been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.
11.2. A reference has been made to the decision in Narcotics Control Bureau vs. Kashif, 2024 INSC 1045, by the learned Special Public Prosecutor for the respondent NCB, more particularly, paragraph 39 thereof wherein the Hon'ble Court has summarized its observations. In Kashif, the Hon'ble Supreme Court has held that 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 and recording of findings, as mandated in Section 37, is sine qua non for granting bail to the accused involved in the offences under the NDPS Act.
11.3. Another decision wherein the learned Special Public Prosecutor for the respondent NCB has placed reliance is Jayshree Kanabar vs. State of Maharashtra and others, 2025 INSC 13. The crime case involved was registered for offences punishable under Sections 320/120B/201/212 of the IPC, Sections 3/25 of the Arms Act, Section 37[1][3] read with Section 135 of the Maharashtra Police Act, 1951 and Sections 3[1][ii]/3[2]/3[4] of the Maharashtra Control of Organised Crime Act, 1999 ['the MCOCA', for short]. Two of the accused were granted bail by the High Court and the said order of bail was challenged before Hon'ble Supreme Court. Like Section 37[1][b] of the NDPS Page No.# 12/21 Act, there are similar twin conditions in Section 21[4] of the MCOCA. The Hon'ble Supreme Court has found that when the High Court considered and granted bail to the two accused, observations, partaking the character of findings on the merits of the case, were made bypassing the rigours in and the twin conditions incorporated in Section 21[4] of the MCOCA.
11.4. In Special Leave to Appeal [Crl.] no. 4169/2023 [Rabi Prakash vs. The State of Odisha], decided on 13.07.2023, the Hon'ble Supreme Court of India, with regard to the twin conditions contained in Section 37 of the NDPS Act, has observed that the first condition stands complied with when the Public Prosecutor is heard. It has further observed that so far as the second condition i.e. formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at beyond a stage when the accused person had already spent more than three and a half years in custody. Observing so, it has been held 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.
11.5. In Petition for Special leave to Appeal [Crl.] no. 3961/2022 [Abdul Majeed Lone vs. Union Territory of Jammu and Kashmir], decided on 01.08.2022, the Hon'ble Supreme Court of India finding the period of incarceration of the accused person therein for a period of over two years and five months since 01.03.2020, directed the release of the accused person on bail, subject to such terms and conditions which the concerned trial Court shall Page No.# 13/21 deem fit and find appropriate to impose upon him.
11.6. In Criminal Appeal no. 1169/2022 [Gopal Krishna Patra @ Golaprusma vs. Union of India], decided on 25.01.2022, the accused person was in custody since 18.06.2020 and was facing charges for the offences punishable under Sections 8/20/27-AA/28 read with Section 29 of the NDPS Act. Observing that a case for bail is made out due to the length of custody undergone by the accused therein, the accused was allowed to be released on bail, subject to imposition of such conditions as the trial Court deems appropriate to impose.
11.7. In Petition[s] for Special Leave to Appeal [Crl.] no. 5769/2022 [Nitish Adhikary @ Bapan vs. The State of West Bengal], decided on 01.08.2022, the petitioner sought release on bail wherein he was inter alia facing charges under Section 21[c] of the NDPS Act and had undergone custody for a period of 1 [one] year and 7 [seven] months as on 09.06.2022. The said accused person was allowed to go on bail subject to him furnishing bail bonds to the satisfaction of the trial Court.
11.8. In Criminal Appeal no. 245/2020 [Chitta Biswas Alias Subhas vs. The State of West Bengal], decided on 07.02.2022, the accused person was undergoing custody for offences punishable under Section 21-C of the NDPS Act. The accused who was arrested on 21.07.2018, was allowed to be released on bail, subject to furnishing bail bond in the sum of Rs. 2,00,000/- with two like sureties to the satisfaction of the learned trial Court and the learned trial Court was allowed to impose such other conditions as it deemed appropriate to Page No.# 14/21 ensure the presence and participation of the accused in the pending trial.
11.9. In Criminal Appeal no. 1570/2021 [Mahmood Kurdeya vs. Narcotics Control Bureau], decided on 07.12.2021, the accused person, a Syrian national living in Delhi as a refugee since 2015, was in custody since 27.09.2018, that is, for a period of three years and three months. Prior to arrest of the accused person another Turkish citizen was arrested on 24.09.2018 by the NCB after apprehending him at the Indira Gandhi International Airport for smuggling large no. of narcotics and psychotropic drugs including thousands of tables of Tramadol X-225. The allegation against the accused person, Mahmood Kurdeya was to the effect that he gave the Turkish citizen drugs on 23.09.2018. The Hon'ble Supreme Court was persuaded to pass an Order for release of the petitioner for the reason that despite the rigor of Section 37 of the NDPS Act and despite submission of charge-sheet on 23.09.2018 even the charges were not framed and the trial did not commence.
11.10. In Special Leave to Appeal [Crl.] No. 4648/2024 [Ankur Chaudhary vs. State of Madhya Pradesh] decided on 28.05.2024, the petitioner was in custody for more than two years for an offence punishable under Section 8 read with Section 22 and Section 29 of the NDPS Act. The Hon'ble Supreme Court has observed in that case 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 can, in such circumstances, be considered. With such observations, the bail application of the petitioner, Ankur Chaudhary was Page No.# 15/21 allowed.
11.11. In Mohd. Muslim @ Hussain vs. State [NCT of Delhi], 2023 INSC 311, the Hon'ble Supreme Court has considered the restrictions placed by Section 37 of the NDPS Act along with the right of the accused to enjoy freedom under Article 21 of the Constitution of India. The appellant-accused therein who was about 23 years of age, had faced trial for committing offences punishable under Sections 20, Section 25 and Section 29 of the NDPS Act and in the process, had suffered incarceration for over seven years. But the criminal trial had hardly reached the half-way mark. The Hon'ble Supreme Court had found that the progress of the trial was at a snail's pace as only thirty witnesses were examined and thirty more witnesses were yet to be examined despite the period of incarceration of the appellant for over seven years and four months. It has been contended by the learned Special Public Prosecutor for the respondent NCB that the accused-appellant therein was not found in possession of the contraband. The learned counsel for the petitioners had submitted that it was in the account of the accused-appellant, the money, allegedly tainted money, was transferred by two of the co-accused from whom the contraband was seized. In Mohd. Muslim @ Hussain, it has been observed to the effect 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, given the imperative of Section 436A of the Code [since replaced by Section 479 Bharatiya Nagarik Suraksha Sanhita, 2023], which is applicable to offences under the NDPS Act too [Ref : Satender Kumar Antil vs. Central Bureau of Investigation, [2022] 10 SCC 51 ]. Having regard to those factors, the Hon'ble Supreme Court has reached an opinion in the facts of the said case that the appellant therein would deserve to be enlarged on bail. While Page No.# 16/21 parting, the Court in Mohd. Muslim [supra] has further observed that the laws which impose stringent conditions, may be in public interest, for grant of bail; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable.
11.12. In K.A. Najeeb [supra], the Hon'ble Supreme Court has observed that the statutory restrictions like Section 43D[5] of the Unlawful Activities [Prevention] Act, 1967 cannot fetter a constitutional court's ability to grant bail on ground of violation of fundamental rights.
11.13. It is noticed that in Jayshree Kanabar [supra], the Hon'ble Supreme Court has found on critical examination of the impugned order granting bail that the bail was granted to the accused considering the sufficiency or otherwise of the evidence available on record against them and not on the ground of violation of Part-III of the Constitution of India. The Hon'ble Supreme Court has recorded as a fact that the grant of bail was not in exercise of power of the High Court as a constitutional court on the ground of violation of Part-III of the Constitution.
11.14. In Kalyan Chandra Sarkar [supra], it has also been observed that even persons accused of non-bailable offences are entitled for bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied for reasons to be recorded that in spite of the existence of a prima facie case there is a need to release such persons on bail where fact situations require it to do so.
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12. From a survey of the aforesaid decisions, it emerges from them that the Hon'ble Supreme Court of India without expressing any opinion on the merits or demerits of the case, has allowed the prayers for bail of the concerned accused persons who were facing charges for allegedly committing offences, involving commercial quantity, under the NDPS Act on consideration of their prolonged incarceration. In addition, different coordinate benches of this Court have also followed the same line of reasoning to grant bail to accused persons arrested under the provisions of the NDPS Act on the ground of prolonged pre-trial incarceration.
13. Reverting back to the facts of the case in hand, as noticed from the materials on record, the two petitioners herein were apprehended on 22.05.2020 and were arrested on 23.05.2020. After arrest, they were produced before the Court of learned Chief Judicial Magistrate, Kamrup [Metro], Guwahati on 24.05.2020. After completion of investigation in connection with NCB Crime Case no. 08 of 2020, the Offence Report under Section 36[1][d], NDPS Act was submitted on 17.11.2020.
14. After submission of the complaint, the case, NDPS Case no. 89 of 2020 was registered. In the complaint, one of the four charge-sheeted accused persons, namely, Ramu Ghosh was shown as an absconder. The learned Special Court had recorded that the trial was getting delayed because of the non- appearance of the absconding accused, Ramu Ghosh and by an Order passed on 01.02.2024, the learned Special Court split up the trial of the said absconding accused, Ramu Ghosh, posting the case on 03.02.2024 for framing of charges against the remaining three accused persons. One of the charge-sheeted Page No.# 18/21 accused persons, Murshid Alam was allowed to go on bail by an Order dated 14.03.2024 passed in a bail application, registered as Petition no. 2127 of 2023, preferred by him. Thereafter, on 09.07.2024, charges were framed against the two petitioners herein. It has been submitted at the Bar that the charge-sheeted accused person, Murshid Alam, who was released on bail on 14.03.2024, has also been discharged by the learned Special Court. After framing of the charges, the charges were read over and explained to the accused persons, that is, the petitioners, who pleaded not guilty and claimed to be tried. As a result, the trial of NDPS Case no. 89 of 2020 had, thereafter, proceeded to the stage of recording evidence.
15. After the charges were framed, the case, NDPS Case no. 89 of 2020 was posted on a number of subsequent dates, 19.08.2024, 04.10.2024 & 20.11.2024 for recording of evidence of the prosecution witnesses. In the complaint submitted on 17.11.2020, the prosecution side named eleven nos. of witnesses as prosecution witnesses in order to bring home the charge against the accused persons. In addition, it has in its list of documents, mentioned about 34 [thirty four] nos. of documents, running into 279 pages, which it would exhibit during the trial. It is relevant to note that out of the 11 [eleven] nos. of listed witnesses, 9 [nine] of them are official witnesses and the remaining 2 [two] are independent witnesses.
16. The learned counsel for the parties are not in dispute at the Bar that till date, no witness has turned up to depose before the learned Special Court in the trial of NDPS Case no. 89 of 2020. Meaning thereby, the prosecution side has not been able to examine any one from its list of witnesses, not even the Page No.# 19/21 official witnesses.
17. Since 23.05.2020, both the petitioners are in incarceration till date and their period of incarceration is more than 4 [four] years and 7 [seven] months. The incarceration is indeed a prolonged one, which establishes that the personal liberty of the two petitioners are being jeopardized resulting violation of their fundamental rights guaranteed under Article 21 of the Constitution of India. As no witness has yet been examined, an early conclusion of the trial is not in sight in the near future. An inordinate delay in conclusion of trial, which appears to be inevitable in the case in hand, has infringed the right of the two petitioners herein as the accused under Article 21 of the Constitution of India. Thus, such prolonged incarceration of more than 4 [four] years and 7 [seven] months, which militate against the fundamental right of personal liberty guaranteed under Article 21 of the Constitution of India, has the effect of overriding the rigours created in the provision of Section 37[1][d][ii] of the NDPS Act. As a result, a case for bail of the two petitioners is found to be made out, subject to appropriate terms and conditions.
18. For the above stated reasons, it is provided that the two petitioners herein who are standing trial in connection with NDPS Case no. 89 of 2020, that is, [i] the petitioner, Chandra Vir in B.A. no. 1564/2024; and [ii] the petitioner, Rajeev Upadhay @ Rajeev Upadhayay in B.A. no. 1868/2024 are allowed to be released on bail of Rs. 50,000/- [Rupees fifty thousand] each with two sureties of the like amount each to the satisfaction of the learned Special Court, Kamrup [Metro], Guwahati, subject to the following conditions :-
Page No.# 20/21 [i] the two petitioners shall regularly appear in the trial before the learned Special Court, Kamrup [Metro], Guwahati on all dates to be fixed from time to time till the case is disposed of;
[ii] the two petitioners shall not leave the jurisdiction of the learned Special Court, Kamrup [Metro], Guwahati without prior permission and when such leave is granted by the learned Special Court, the petitioners shall submit their leave addresses before the learned Special Court;
[iii] the two petitioners shall provide the photocopies of their Adhaar Card, driving licence, PAN Card, etc. before the learned Special court;
[iv] the two petitioners shall inform the Investigating Officer of the NCB the addresses where they shall reside during the period they remain enlarged on bail;
[v] each of the petitioners shall use only one mobile number, during the period they remain on bail and shall inform their mobile numbers to the Investigating officer of the NCB;
[vi] the two petitioners shall ensure that their mobile phones remain active round the clock so that they remain constantly accessible throughout the period they remain on bail;
[vii] the two petitioners shall not directly or indirectly, make nay inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and [viii] the two petitioners shall maintain law and order and they shall not commit any offence similar to the offence of which they are accused, or of the commission of which they are suspected.
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19. In the event there is any breach of any of these conditions or any other condition that may be imposed by the learned Special Court independently, liberty for which is hereby granted, it would be open to the prosecution to seek cancellation of bail granted to the petitioners before the learned Special Court only, without any further reference to this Court.
20. With the observations made and the directions given above, both the applications stand disposed of.
JUDGE Comparing Assistant