Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Gau) 68

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MANISH CHOUDHURY, J.
Chandra Vir S/O Uday Singh – Petitioner
Versus
Narcotics Control Bureau, Guwahati – Respondent
Bail Application Nos. 1564, 1868 of 2024
Decided On : 09-01-2025

Advocates:
Advocate Appeared:
For the Petitioner: N. ANAND
For the Respondent: S.C. KEYAL

Prolonged incarceration exceeding four years justifies bail under the NDPS Act, overriding statutory restrictions due to infringement of personal liberty under Article 21.

Headnote:
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8(c), Section 20(b)(ii)

(C), Section 29, Section 37 - Bail applications filed under Section 439, Cr.P.C. for accused in NDPS Case No. 89 of 2020 - Prolonged incarceration of over 4 years and 7 months infringes fundamental rights under Article 21 - Court finds that the rigours of Section 37 can be overridden due to the delay in trial. (Paras 17, 18)

(B) Bail - Conditions for grant - The petitioners are allowed bail with conditions including regular appearance, not leaving jurisdiction without permission, and maintaining communication with the Investigating Officer. (Paras 18, 19)

JUDGMENT :

MANISH CHOUDHURY, J.

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 (‘Cr.P.C.’ 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 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, Cr.P.C. 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 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 seiz