ORDER

Date : 05.01.2024 Heard Mr. R. Sarma, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam.

2. This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner Majibur Rahman, who has been detained behind the bars since 28.10.2021 (for the last two years two months and eight days) in connection with NDPS Case No.168/2022 pending before the Court of Additional Sessions Judge, FTC No.3, Kamrup(M) Guwahati.

3. The gist of accusation in this case is that on 27.10.2021 one Sri Rohit Das had lodged an FIR before the Officer-In-Charge of Special Task Force Police Station, Assam, inter alia, alleging that on receipt of an information through reliable source that some illicit drugs were being carried by some person at Lanka in Hojai district. The informant who is a member of Special Task Force proceeded to Lanka to lodge a search operation and they conducted a search operation in front of Ashique Nursery, near National Highway-54 under Lanka Police Station and apprehended the present petitioner from there and recovered 16 packets containing 280 gm suspected heroin from his possession.

4. On receipt of the same, STF P.S. Case No.5/2021 under Section 21(c) NDPS Act was registered and investigation was initiated. Ultimately after completion of the investigation charge-sheet was laid against the present petitioner and one Sahabuddin under Section 21(c) of the NDPS Act, 1985.

5. Learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars since 28.10.2021 i.e. for the last two years two months and eight days. Though the charge-sheet was laid before the trial Court on 01.08.2022, however, till today not even the charges have been framed in the said case.

6. It is also submitted by the learned counsel for the petitioner that the co-accused namely Sahabuddin is absconding and therefore, trial could not be proceeded. Learned counsel for the petitioner has also submitted that the petitioner is entitled to get the bail mainly on the ground of prolonged incarceration as per the observation of the Apex Court in Mohd Muslim @ Hussain –vs-

State (NCT of Delhi) reported in 2023 SCC Online SC 352.

7. On the other hand, learned Additional Public Prosecutor opposed the grant of bail to the present petitioner on the ground that contraband seized from the possession of the present petitioner is of commercial quantity and therefore embargo of Section 37 comes into place.

8. It is also submitted by the learned Additional Public Prosecutor that the trial of the present petitioner could not proceed because of the fact that the co-accused Sahabuddin who is absconding is yet to be apprehended.

9. I have considered the submission made by the learned counsel for both the parties and have perused the scan copy of the case record of NDPS Case No.168/2022. Though this case involves commercial quantity of contraband however, considering the fact that the petitioner has been detained behind the bar for last two years two months and eight days, the question before this Court is as to whether prolonged incarceration of the petitioner would override the embargo of Section 37 of the NDPS Act, 1985 and if this Court comes to a finding that delay is long enough to outweigh the embargo of Section 37 of the NDPS Act, 1985, he may have to be released on bail in spite of the embargo of Section 37.

10. It appears that the delay in trial is mainly because of the fact that the co-accused is yet to be apprehended and the present petitioner is not at fault for the delay caused in the trial. As he has been detained behind the bar all along since the day of his arrest, the petitioner has a right to get a speedy trial under Article 21 of the Constitution of India.

11. Considering that the Hon’ble Supreme Court of India in “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352” has observed that “grant of bail on the ground of und