Prolonged detention without trial completion may justify bail, but substantial evidence against the accused in narcotics cases limits this right.

ORDER

14.11.2023 Date : Heard Mr. HRA Choudhury, learned senior counsel, assisted by Mr. J.M. Sulaiman, learned counsel for the petitioner in B.A. No. 3415/2023 and Mr. L.R. Mazumdar, learned counsel for the petitioner in B.A. No. 2999/2023. Also heard Mr. K. Baishya, learned Addl. PP for the State.

2) The petitioners, who were arrested on 07.05.2022, in connection with Patharkandi P.S. Case No. 130/2022 under Sections 21(c)/25/29 of the NDPS Act, 1984 have prayed for bail by filing this application under Section 439 Cr.P.C. The said case is being tried before the Court of learned Special Judge, Karimganj as Special (NDPS) Case No. 74/2022. This is the second bail application before this Court. The previous application, being B.A. No. 3398/2022, was rejected by order dated 23.01.2023.

3) The learned senior counsel for the petitioner in B.A. No. 3415/2023 and learned counsel for the petitioner in B.A. No. 2999/2023 have submitted that the petitioners were arrested on 07.05.2022 and produced on 08.05.2022 and as such they have spent 555 days in custody as on today. It has also been submitted that till date the prosecution has been able to examine only 3 (three) out of 10 (ten) listed prosecution witnesses till 12.09.2023. It has also been submitted that as their appreciation of evidence on three witnesses examined so far nothing incriminating against the petitioners could be proved.

Hence, it was submitted that there is remote chance of an early trial.

4) By referring to the decision of the Supreme Court of India in the case of Mohd. Muslim @ Hussain v. State (NCT of Delhi), S.L.P.(Crl.) No. 915/2023 (decided by 2- Judge Bench) and reported in (2023) 0 Supreme(SC) 289: 2023 LiveLaw (SC) 533, and the decision of the coordinate Bench of this Court in the case of Asab Uddin v. The State of Assam , B.A. No. 1995/2023 , it has been submitted that it was permissible for the Court to examine the evidence for the limited purpose to consider the prayer for bail and that the provision of Section 37 of the NDPS Act cannot put fetters on the Constitutional Courts to consider the prayer for bail. It was submitted that by referring and relying on the said case of Mohd. Muslim @ Hussain (supra), the coordinate Bench of this Court had released an accused charged with commission of offence under Section 22(C) of the NDPS Act, 1984 on bail.

5) It was also submitted that in cases, where there was delay in conclusion of trial of NDPS cases, the Supreme Court of India, cases mentioned hereinafter, had released the accused by invoking the principles of Article 21 of the Constitution of India. The cases decided by the Supreme Court of India, which were cited in this regard were: (i) Shariful Islam @ Sarif v. State of West Bengal , SLP (Crl.) 4173/2022 decided by 2-Judge Bench on 04.08.2022, (ii) Nitish Adhikary @ Bapan v. The State of West Bengal, SLP (Crl.) 5769/2022, decided by 2-Judge Bench on 01.08.2022, (iii) Rabi Prakash v. The State of Odisha , SLP (Crl.) 4169/2023 , decided by 2-Judge Bench on 13.07.2023.

6) The learned Addl. P.P. has opposed the prayer for bail and has placed reliance on the case of Union of India v. Md. Nawaz Khan , (2021) 7 SCR 819.

7) It would be now appropriate to refer to paragraphs 7, 8 and 12 of the case of Asab Uddin (supra), on which heavy reliance was placed by the learned senior counsel for the petitioner, which is extracted below:-

“7. The learned counsel for the petitioner has also submitted that though the instant case has been registered under Section 22(C) of the NDPS Act, 1985 for possession of commercial quantity of contraband by the petitioner, however, rigors of Section 37 of the NDPS Act, 1985 cannot abridge the right to life and personal libert