Date : 19.03.2025 Heard Mr. N. N. B. Choudhury, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing Counsel, NCB for the respondent.

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. 36/2023, corresponding to NCB Crime No. 21/2022, under Sections 20(b)(ii)(C) and 29 of NDPS Act, pending before the Court of learned Additional Session Judge No. 5, Kamrup(M), Guwahati.

3. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the present accused/petitioner is innocent and nothing has been seized from his conscious possession and the recovery was alleged to have been made from the possession of the accused one Alindra Ray. The present petitioner got arrested in connection with this case on 26.09.2022 and for last more than 2 (two) years, 5 (five) months and 21 (twenty one) days, he is in custody. But, till date, the prosecution could examine only 7 (seven) witnesses out of 11 (eleven) numbers of listed witnesses. More so, he submitted that the accused/petitioner was arrested in connection with this case only on the basis of the statement made by the co-accused under Section 67 of NDPS Act and it is a settled position of law that the statement made under Section 67 NDPS Act is not admissible in the eye of law. Further he submitted that 2 (two) other co-accused persons, whose cases are also based on the same footing, have already been released on bail by Page No.# 3/13 the Co-ordinate Benches of this Court in Bail Appln. No. 2437/2024 and Bail Appln. No. 478/2025. Furthermore, he submitted that till date only 7 (seven) numbers of witnesses are being examined and for examination of remaining witnesses will take considerable time and therefore the accused/petitioner may be enlarged on bail considering his length of detention or period of long incarceration, which is more than 2 (two) years, 5 (five) months and 21 (twenty one) days. The accused/petitioner is 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. Choudhury further relied on a decision of Hon'ble Apex Court passed in the 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.) Page No.# 4/13 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. Choudhury, learned counsel for the petitioner, also relied on the following decisions in support of his case:

7. Accordingly, Mr. Choudhury, learned counsel for the petitioner, 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. S. C. Keyal, learned Standing Counsel, NCB, raised objection in enlarging the accused/petitioner on bail at this stage and Page No.# 6/13 accordingly, he submitted that the Investigating Officer has collected sufficient incriminating materials against the present accused/petitioner showing his direct involvement in the alleged offence. He confessed before the I.O. regarding his involvement in trafficking of Ganja in greed of money. Further, the report of the I.O. reveals the detail about the involvement of the present petitioner in the alleged offence. He further submitted that the final complaint was filed on 21.03.2023 and the charge was accordingly framed on 15.11.2023 and out of 11 (eleven) numbers of witnesses, 8 (eight) witnesses are already been examined and the next date for evidence is fixed on 26.03.2025. He also submitted that it is not a case that only on the basis of the statement made under Section 67 NDPS Act the accused/petitioner was arrested in connection with this case, but, during investigation, sufficient incriminating materials were found against the present accused/ petitioner which has already been reflected in paragraph No. 84 of the Charge-Sheet, wherefrom it is seen that the accused/ petitioner was consciously involved in the trafficking of ganja for money. Apart from that, the telephonic communications were also analyzed during the investigation wherefrom also it is seen that there are specific information regarding his involvement in the alleged offence.

9. Mr. Keyal 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 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."

10. Further he submitted that the trial is going on expeditiously and 8 (eight) numbers of witnesses are already examined and accordingly, considering all these aspects of the case, viz-a-viz the gravity of the offence, the prayer for bail may be rejected at this stage. More so, he 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 Page No.# 8/13 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. Accordingly, he raised vehement objection and submitted that it is not at all a fit case to enlarge the accused/petitioner on bail at this stage.

11. 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.

12. It is the case of the petitioner that the accused is in custody for more than 2 (two) years, 5 (five) months and 21 (twenty one) days and till date, the prosecution could examine only 7 (seven) 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.

13. 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.

14. It is the admitted fact the there are some incriminating materials in the Case Diary which reveals from the statement made by the witnesses under Page No.# 9/13 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 7 (seven) 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.

15. 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.

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

17. 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 Page No.# 10/13 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.

18. But, in the same time, it cannot be denied that the accused/petitioner is behind the bar for more than 2 (two) years, 5 (five) months and 21 (twenty one) days from the date of his arrest and till then, the prosecution has been able to examine only 7 (seven) 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.

19. In the case of Rabi Prakash (supra), as relied by the learned counsel 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 ."

20. 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.

21. Again, in the case of Nitish Adhikary @ Bapan Vs. The State of West Page No. # 11/13 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.

22. 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.

23. 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.

24. 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.

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

26. 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 Page No.# 12/13 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 2023, the prosecution could examine only 7 (seven) witnesses out of 11 (eleven) numbers of listed witnesses, though it a fact that the accused/petitioner is behind the bar for more than 2 (two) years, 5 (five) months and 21 (twenty one) days.

27. 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 2 (two) years, 5 (five) months and 21 (twenty one) days month may be considered as a ground for bail with the conditional liberty considering the fundamental right guaranteed under Article 21 of the Constitution and, therefore, without going into the merit of the case, I am inclined to grant bail to the present accused/petitioner.

28. 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. 5, Kamrup (M), Guwahati, the accused/petitioner, namely, Shri Rajesh Debnath, 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. 5, Kamrup (M), Guwahati, without prior permission.

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

JUDGE Comparing Assistant