IMPORTANT POINT
The court ruled that in NDPS cases, the societal interest in preventing drug offenses outweighs individual liberty, necessitating strict adherence to bail conditions under Section 37 of the NDPS Act.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

Heard Shri Serto T. Kom, learned counsel for the petitioner, namely, Khaiminlal Touchang, who has filed this bail application under Section 483 of the BNSS, 2023 read with Section 37 of the NDPS Act praying for bail in connection with NDPS Case No. 158/20214 (arising out of Sonapur PS Case No. 585/2021) registered under Sections 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 by this Court on two occasions earlier vide orders dated 18.04.2022 in Bail Appln./3706/2021 and order dated 20.12.2023 in Bail Appln./4379/2023.

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. The petitioner is behind the bars since the date of his arrest i.e. 28.08.2021 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 is no criminal antecedents of the petitioner and therefore, the rigours of Section 37 of the NDPS Act, can be dispensed with.

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

ii. Order dated 25.01.2023 by the Hon’ble Supreme Court in SLP(Crl.)/6690/20222 [Dheeraj Kumar Shukla Vs. State of U.P.]

7. 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. The case of Dheeraj Kumar Shukla (supra) has been relied upon in support of the prayer for release of bail when there was delay in completion of the trial.

8. Per contra, Ms. S. Jahan, learned Addl. PP, Assam strenuously opposes the prayer for grant of bail of the petitioner. She submits that on 09.03.2022 the charge sheet has been submitted and the trial has begun. It is submitted that there are 9 nos. of PWs, out of which, 3 nos. of PWs have already been examined. It is further informed that the case records would reveal that for rest of the witness, summons were being issued till to a certain date, but for some reason and the other, the rest of the witnesses have not been able to be appeared.

9. 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 contraband was concealed in the dashboard and the backlight of the vehicle in a planned manner. The report of the FSL also states that the contraband is Heroin with 78.85% purity and the quantity is also huge being about 1.3 KG. She further submits that amongst the witnesses examined, there is also a seizure witness who has deposed against the petitioner. The learned APP finally submits that in consideration of a bail application, this Court is not required to go into the merits of the allegations and the decision is to be rendered based on a prima facie determination from the materials on record.

10. The learned APP, Assam submits that apart from the fact that the rule of precedents will not have a strict application in criminal jurisprudence, the facts of the cases cited are distinguishable. She ha