AMIR KHAN AND ANR v. THE UNION OF INDIA

ORDER Heard Mr. M. Ali, learned counsel for the petitioners as well as Ms. M. Deka, learned counsel representing the NCB.

2. By filing this application U/S 483 of the BNSS, 2023, the petitioners, namely, Amir Khan and Md. Habibur Rahman, have sought for bail in connection with NDPS Case No. 129/2024 (arising out of NCB Crime No. 17/2023) under Section 8(c) r/w Section 21(c)/29 of NDPS Act, pending in the Court of learned Special Judge, Kamrup(M), Guwahati, Assam.

3. The factual matrix leading to this bail application is that on 16.10.2023, on the basis of secret information, the intelligence officer, NCB moved at HB lodge, VIP road, Six Mile, Guwahati. On being arrived there, one Honda City car bearing Regd. No. AS-01-AJ-8180 was found wherein two persons were sitting inside the car. Thereafter, search was conducted and recovered 37 soap cases of different colours, containing suspected heroin and seized the same. Accordingly, a case was registered and subsequently the petitioners were arrested.

4. It is submitted by the learned counsel for the petitioners that the petitioners have been languishing in judicial custody for more than one and half years since their arrest on 18.10.2023. It is also submitted by the learned counsel for the petitioners that after completion of investigation, on 06.04.2024, charge sheet has been laid. It is further submitted that on 29.08.2024, charge has been framed against the accused/petitioners. However, no witness is examined till date. Page No.# 3/8

5. It is further submitted by the learned counsel for the petitioners that the petitioners have been falsely implicated in this case and they are no way involved in the instant case. It is also submitted that no grounds of arrest was communicated to the petitioners in the notice served on them U/S 50 Cr.P.C. (U/S 47 BNSS) which is mandatory in nature, thereby violating the mandates of Article 21/22 of the Constitution of India. In support of his submission, the learned counsel for the petitioners has placed reliance on the following case laws- (i) Prabir Purkayastha vs. state (NCT of Delhi), reported in (2024) 8 SCC 254. (ii) Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anr. Reported in 2005 0 Supreme (SC) 104. (iii) Md. Sahid Alam vs. The Union of India, in BA/1143/2025.

6. The learned counsel for the petitioners further submitted that in the case of Rabi Prakash vs. The State of Odisha, reported in 2023 Livelaw (SC) 553, it was 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 embergo created under Section 37(1)(b)(ii) of NDPS Act.” In view of the acquisition spelt out against the petitioners as well as considering the period of detention, bail may be granted to the petitioners.

7. Per contra, Ms. Deka, learned counsel appearing for the NCB, has submitted that commercial quantity of heroine was recovered from the conscious possession of the petitioners. As the commercial quantity of Page No.# 4/8 contraband item is involved in the instant case as such, the embargo under Section 37 of NDPS Act will come into play. It is also submitted one PW has been examined and cross examination part was reserved. Hence, she has opposed in granting bail to the petitioner. However, she has further submitted that the grounds of arrest have been mentioned in the arrest memo issued to the petitioners. Learned NCB counsel has referred the following cases: (i) Abdul Salik & Anr. Vs. The State of Assam in BA/2656/2024. (ii) Rashid Hoque vs. The Union of India in BA/1153/2025.

8. I have considered the submissions made by the learned counsel for the parties and I have also perused the trial court record.

9. It appears that the petitioners have been languishing in judicial custody for more than one and half years and the NCB has failed to complete the trial within such stipulated period. It is true that earlier the petitioners were directed to approach the trial court with an appropriate application and the same was rejected by the trial court. Now, the question comes whether prolonged incarceration could be only the ground for granting bail to the petitioners.

10. In this case, the quantity of contraband is commercial and the same is 457 gm of heroin. Therefore the rigor of Section 37 of the NDPS Act would squarely apply. Section 37 of the NDPS Act provides as under: "37. Offences to be cognizable and nonbailable.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- Page No.# 5/8 (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub- section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”

11. On a perusal of Section 37(1)(a)(i) of NDPS Act, when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are 'reasonable grounds' for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail.

12. The Apex Court considered the meaning of 'reasonable grounds' in the decision reported in (2007) 7 SCC798, Union of India v. Shiv Shankar Kesari and held that the expression 'reasonable grounds' means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

13. It was further held that the Court while considering the application for bail with reference to Section37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are Page No.# 6/8 reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

14. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in Superintendent, Narcotic Central Bureau v. R. Paulsamy [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], Customs, New Delhi v. Ahmadalieva Nodira [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302], Union of India v. Abdulla [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334], N.R.Mon v. Md.Nasimuddin [2008 KHC 6547: 2008(6) SCC 721: 2008(2) KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], Union of India v. Rattan Malik [2009 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE51], Union of India v.