The main legal point established in the judgment is the strict application of bail provisions under the NDPS Act, considering the nature of the contraband, the quantity, and the nature of the accusation/involvement of the applicant.

JUDGMENT :

Heard Shri Serto T. Kom, learned counsel for the petitioner, namely, Khaiminlal Touchang, who has filed this bail application under Section 439 of the Cr.PC praying for bail in connection with Sonapur PS Case No. 585/2021 under 21(C)/24/29 of the NDPS Act.

2. The petitioner was arrested on 28.08.2021.

3. At the outset, it may be noted that the prayer for bail of this petitioner was rejected earlier vide order dated 18.04.2022 in Bail Appln./3706/2021.

4. Pursuant to earlier orders, the scanned copies of the case records have been transmitted to this Court.

5. Shri Kom, learned counsel for the petitioner makes the following submissions in support of his prayer for bail :

i. Till date, the petitioner is behind the bars for about 816 days and therefore, further custodial detention is not necessary. Though the trial has begun, only three numbers of PWs have been examined.

ii. Out of 6 arrested persons, 2 have been granted bail by this Court.

iii. There has been violation of the provisions of Section 52 A of NDPS Act, more specifically sub-section (4) thereof. It is contended that the inventory, photographs of the contraband, list of substance drawn and certified by the Magistrate would be treated as primary evidence and in this case, there is no fulfillment of the said requirement.

iv. There are no materials against the petitioner as he was merely a traveler in the Bolero vehicle.

v. There has been violation of Clause 1.13 of the Standing Order No. 1/88 which prescribes a time of 72 hours from the time of seizure for dispatching of sample to the laboratory.

vi. There is no prima facie case against the petitioner and therefore, he should be given the benefit of Section 37 of the Act.

6. In support of his submissions, Shri Kom, learned counsel for the petitioner places reliance upon the following case decisions-

i. Order dated 28.03.2023 of the Hon’ble Supreme Court in SLP(Crl.)/915/2023 [Mohd. Muslim @ Hussain Vs. State]

ii. Order dated 13.07.2023 of the Hon’ble Supreme Court in SLP (Crl.) No. 4169/2023 [Rabi Prakash Vs. State of Odisha].

iii. Judgment dated 13.10.2023 of the Hon’ble Supreme Court in Crl.Appeal./3191/2023 [Yusuf @ Asif Vs. State].

iv. Order dated 11.09.2023 of this Court in Bail Appln./2110/2023 [Lulun Kuki Vs. State of Assam].

7. The case of Mohd. Muslim (supra) has been relied upon to explain the meaning of “not guilty” appearing in Section 37. The Hon’ble Supreme Court has explained that when all the evidence is not before the Court, it is only upon a prima facie determination and such determination can be on the basis of materials on record.

8. The case of Rabi Prakash (supra) has been relied upon to buttress the contention of long incarceration during the time of trial vis-à-vis the rights granted under Article 21 of the Constitution of India.

9. The case of Yusuf (supra) has been cited in support of the contention regarding the mandatory nature of the provisions of Section 52 A of the Act.

10. In the case of Lulun Kuki (supra), though bail has been granted, taking into account that the incumbent was in custody for a period of 744 days, it appears that the said incumbent was also suffering from certain illness for which treatment was required.

11. Per contra, Shri K.K. Das, learned Addl. PP, Assam strenuously opposes the prayer for grant of bail of the petitioner. He submits that on 09.03.2022 the charge sheet has been submitted and the trial has begun. It is submitted that there are 9 numbers of PWs, out of which, 3 numbers of PWs have already been examined. It is further informed that the last date fixed for evidence was 14.12.2023. He accordingly submits that the trial is going on in a regular basis and there is no delay.

12. With regard to the requirement of prima facie case on the basis of the materials on record, the learned APP submits that the petitioner is a named accused who was arrested on the spot of the seizure from the vehicle (Bolero) in which he was travelling with few others. It is submitted that the con