Date : 25.03.2025 Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. K. Jain, learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing Counsel, NCB for the respondent/Union of India.

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2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 146/2022, corresponding to NCB Crime No. 30/2021, under Sections 20(b)(ii)(C) & 29 of the NDPS Act, pending before the Court of learned Additional Sessions Judge No. 2, Kamrup(M), Guwahati.

3. It is submitted by Mr. Biswas, learned counsel for the petitioner, that the present accused/petitioner is innocent and he is not involved in the alleged offence. He got arrested in connection with this case on 27.12.2021 and for last more than 3 (three) years 2 (two) months & 26 (twenty six) days, he is in custody. The charge-sheet of the case was filed on 22.06.2022 and the charge was also framed and the presently the case is fixed for evidence. But, till date, the prosecution could examine only 3 (three) witnesses out of 11 (eleven) numbers of listed witnesses and the last witness was examined on 11.09.2024. He, accordingly, submitted that there is no probability of completion of trial within near future as lots of witnesses are yet to be examined by the prosecution and therefore he submitted that considering the period of long incarceration, the petitioner may be enlarged on bail. More so, he submitted that the co-accused have already been granted bail by this Court vide Order dated 27.02.2025, passed in Bail Appln. No. 3947/2024 & Bail Appln. NO. 3872/2024, and hence, the prayer of the present petitioner may also be considered on the ground of parity. He is a permanent resident of his addressed locality and will regularly appear before the Court to contest the case as and when the date is fixed by the Court.

4. Mr. Biswas further relied on a decision of Hon'ble Apex Court passed in the Page No.# 3/13 case of Kamaljit Singh Vs. State of Punjab & Anr. , reported in (2005) 7 SCC 226, wherein it has been held that the law of parity should be applied when the allegations brought against the co-accused persons are of similar in nature. He accordingly emphasized on paragraph No. 2 of the judgment, which reads as under:

5. He also relied on another decision of Hon'ble Supreme Court passed in the case of Anjan Nath Vs. The State of Assam [Special Leave Appeal (Crl.) No. 9860/2023, dated 17.10.2023], wherein the bail was granted on the ground that the co-accused who is similarly situated has already been released on bail.

6. Mr. Biswas, learned counsel for the petitioner, also relied on the following decisions in support of his case:

7. Citing the above referred judgments, Mr. Biswas, learned counsel for the petitioner, accordingly submitted that as the co-accused have already been granted bail considering the period of long incarceration and hence, considering the present petitioner on the same footing, his bail prayer may be considered on the ground of parity as well as on the ground of long incarceration.

8. In this context, Mr. Jain, learned counsel appearing on behalf of the respondent/NCB, raised objection in enlarging the accused/petitioner on bail at this stage and accordingly submitted that the Investigating Officer has collected sufficient incriminating materials against the present accused/petitioner showing his direct involvement in the alleged offence. More so, there was a recovery of contraband in commercial quantity and the same were seized from the conscious possession of the present accused/petitioner and while giving his voluntary statement, the present accused/petitioner also confessed that he deals with the business of trafficking Ganja along with other co-accused persons, namely, Pabitra Debbarma, Mithun Debbarma and Asish Debbarma, who were also the supplier of the seized contraband. He further submitted that in the charge-sheet also, the role played by the present accused/petitioner is Page No.# 6/13 mentioned by the Investigating Officer and from the statement of the other co- accused persons and from the materials in the Case Diary, it is seen that there is sufficient incriminating materials against the present accused/petitioner.

9. Mr. Jain further relied on a decision of Hon'ble Supreme Court passed in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. [2005 0 Supreme(SC) 104], wherein it is held that " if a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be question as being violative of Article 21 since the same is authorized by law."

10. Mr. Jain further submitted that while dealing with a case of NDPS Act , the object and purpose of the Act has to be considered and if such kind of offender is allowed to go on bail, the very purpose and object of the Act itself will be frustrated. In that context, he also relied on a decision of Hon'ble Supreme Court passed in the case of Narcotics Control Bureau Vs. Kashif, reported in 2024 0 Supreme(SC) 1264, and emphasized on paragraph No. 39 of the judgment, which reads as under:

Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act .

(iii) The purpose of insertion of Section 52A laying down the procedure for Page No.# 7/13 disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.

(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.

(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."

11. Accordingly, Mr. Jain submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record and Case Diary, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Thus, he raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioner on bail at this stage.

12. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the judgments relied by the learned counsels for both sides.

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13. It is the case of the petitioner that the accused is in custody for more than 3 (three) years, 2 (two) months & 26 (twenty six) days and till date, the prosecution could examine only 3 (three) witnesses out of 11 (eleven) numbers of listed witnesses and hence, considering the period of incarceration, the prayer for bail may be considered. Further it is the case of the petitioner that there is no probability of disposal of the case within a short or reasonable period as some of the vital witnesses are yet to be examined by the prosecution.

14. On the other hand, it is the case of the defence that the accused/petitioner is alleged to have committed the offence under the commercial quantity of the NDPS Act and hence, only on the ground of long incarceration, he cannot be enlarged on bail.

15. It is the admitted fact there are some incriminating materials in the Case Diary which reveals from the statement made by the witnesses under Section 161 Cr.P.C. and apart from that, some other materials are also been collected by the I.O. during the investigation of this case and on the basis of which, the Charge-Sheet has been filed. It is also an admitted fact that the Charge-Sheet was filed within the statutory period and accordingly the charges were framed by the learned Trial Court below. However, it is a fact that till date, the prosecution could examine only 3 (three) witnesses out of 11 (eleven) numbers of listed witnesses. But it also cannot be denied that the efforts have been made by the learned Special Judge to procure the attendance of the witnesses.

16. Further, it is also an admitted position that the case is of commercial quantity and hence, the rigor of Section 37 NDPS Act will follow.

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17. For ready reference, Section 37 NDPS Act is extracted hereinbelow:

18. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if there is no reasonable ground for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, from the materials available in the case record, there cannot be any reasons to believe that the accused/petitioner is not guilty of such offence or he is not likely to commit any offence while on bail.

19. But, in the same time, it cannot be denied that the accused/petitioner is behind the bar for more than 3 (three) years, 2 (two) months & 26 (twenty six) days from the date of his arrest and till then, the prosecution has been able to examine only 3 (three) witnesses out of 11 (eleven) numbers of listed witnesses and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial.

20. In the case of Rabi Prakash (supra), as relied by the learned counsel Page No.# 10/13 for the petitioner, the Apex Court has granted bail to the accused with a view 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) 9ii) of the NDPS Act ."

21. In the case of Chitta Biswas @ Subash (supra) also, the bail was granted by the Apex Court considering the long period of incarceration and also considering the fact that out of 10 (ten) numbers of witnesses, only 4 (four) witnesses were examined by the prosecution.

22. Again, in the case of Nitish Adhikary @ Bapan Vs. The State of West Bengal [(2022) SCC OnLine SC 2068], considering the period of detention of 1 year 7 months, the bail was granted considering that the prosecution could examine only one witness and also considering that the case is at the preliminary stage of trial.

23. Further, in the case of Shariful Islam @ Sharif (supra) also, the Apex Court had considered the period of incarceration, i.e. 1 year 6 months, and the bail was granted.

24. The Apex Court in the case of Mohammed Salman Hanif Shaikh Vs. The State of Gujrat [SLP(Crl) No. 5530/2022 (Decided on 22.08.2022)] also granted bail to the accused without expressing any views on the merits of the case and only taking into consideration the period of custody.

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25. In the case of Karnail Singh Vs. The State of Odisha [Criminal Appeal No. 2027/2022, arising out of SLP(Crl) No. 9067/2022 (Decided on 22.11.2022)]as well as in Dheeraj Kumar Shukla (supra) also, the Apex Court also expressed the same view and granted bail to the accused considering the period of incarceration.

26. Same view has been expressed by the Apex Court in the case of Anjan Nath (supra).

27. In the instant case, it is seen that there are some materials available in the Case Diary and on the basis of which, the Investigating Officer has filed the Charge-Sheet against the present accused/petitioner showing his involvement in the alleged offence. But it is also seen that in spite of filing of the Charge-Sheet in the year 2022, the prosecution could examine only 3 (three) witnesses out of 11 (eleven) numbers of listed witnesses, though it a fact that the accused/petitioner is behind the bar for more than 3 (three) years, 2 (two) months & 26 (twenty six) days.

28. So, considering all above aspects of the case and also considering the observations made by the Apex Court in the various judgments, as discussed above, and further considering the other facts and circumstances of this case, this Court is of the opinion that the period of long incarceration undergone by the accused/petitioner for more than 3 (three) years, 2 (two) months & 26 (twenty six) days may be considered as a ground for bail with the conditional liberty considering the fundamental right guaranteed under Article 21 of the Page No.# 12/13 Constitution and, therefore, without going into the merit of the case, I am inclined to grant bail to the present accused/petitioner.

29. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati, the accused/petitioner, namely, Shri Shambhu Debbarma, be enlarged on bail, subject to the following conditions:

(iv) that the petitioner shall not leave the jurisdiction of the learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati, without prior permission.

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30. In terms of above, this bail application stands disposed of.

JUDGE Comparing Assistant