Gauhati High Court
Baiju Thakur vs Union Of India on 16 December, 2022
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GAHC010195722022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2537/2022
BAIJU THAKUR
S/O TARAKANT THAKUR
R/O H.NO. 339, GALI NO. 16, BLOCK-F,
MOLARBAND, NEW DELHI-110044
VERSUS
UNION OF INDIA
REP. BY THE STANDING COUNSEL, NARCOTIC CONROL BUREAU (NCB)
Advocate for the Petitioner : MR. M BISWAS
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
16.12.2022, Heard Mr. M. Biswas, learned counsel, for the accused and also heard Mr. S.C. Kayel, learned Standing Counsel for the Union of India (NCB).
2. This application under Section 439 Cr.P.C. is preferred by the accused Page No.# 2/7 Shri Baiju Thakur, who has been languishing in jail hajot in connection with NDPS Case No. 08 of 2022, under Section 20(b)(ii) (c)/29 NDPS Act, pending before the court of learned Special Judge, NDPS, Kamrup, Amingaon since 01.10.2020, for grant of bail.
3. The said case has been registered on the basis of a complaint lodged by one Kaushik Sarkar, Intelligence office, Guwahati Zinal Unit of Narcotic Control Bureau (NCB), on 03.02.2021, to the effect that acting on a tip off he has intercepted one Truck, bearing registration No. NL 01 AE 1397, near Tolaram Bafna Civil Hospital, Kamrup, Amingaon and recovered 707.050 kg of of Ganja from three persons namely, Tarun Kumar, Pramod Ray and Sujit Kumar and seized the same preparing seizure list.
4. Mr. M. Biswas, the learned counsel for the accused submits that the case has already been charge sheeted and the accused has been charged under Section 20(b)(ii) (c)/29 NDPS Act, of the NDPS Act, along with other co-accused, and the accused pleaded not guilty to the charges. Mr. Biswas further submits that the learned court below has, thereafter, examined one witness, out of the eight cited witnesses, in the charge sheet and the evidence so brought on record failed to establish complicity of the present accused with the offences. Mr. Biswas further submits that present accused is the owner of the Truck, from where the contraband substances were recovered. Mr. Biswas further submits that the driver and handyman of the Truck, without his knowledge, carried the contraband substance, and that he did not possess culpable mental state in commission of the offence as required under section 35 of the NDPS Act. Mr. Biswas further submits that And that immediately after receipt of the notice from the NCB, he voluntarily appeared before the I.O. and he is a law abiding citizen and will Page No.# 3/7 participate in the trial and he has no criminal antecedent nothing was recovered from his possession and that he is behind the bar since 30.09.2020, and except the statement of the co-accused and his own statement no material is there against him and in view of decision of Hon'ble Supreme Court in Tofan Singh vs. State of Tamilnadu reported in (2021) 4SCC 1, therefore, it is contended to allow this petition.
5. Per contra, Mr. S.C. Kayel, learned Standing Counsel, NCB, has vehemently opposed the petition and submits that there is material to show that the contraband substance was recovered from a specially made cavity of the vehicle of the accused and it cannot be accepted that the hidden cavity was made without the permission and knowledge of the accused, who is the owner of the Truck. Mr. Kayel further submits that as per statement of accused Tarun Kumar the Ganja were loaded at Tripura and that present accused has offered to pay him a sum of Rs. 50,000/ for the same and given him one debit card which was in the name of one Amrit Kumar and two amount of Rs. 50,000/ has been credited in his account on 11.08.2020, and that present accused also admitted having given one Debit card to Tarun Kumar, and CDR analysis of present accused and of accused Tarun Kumar, the driver of the vehicle also establish nexus between them and all these circumstances reveals complicity of the present accused with the offences charged and therefore, it is contended to dismiss the petition.
6. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the scanned copy of the record received from the learned court below.
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7. There is no dispute that the accused was arrested on 01.10.2020, and since then he has been languishing in jail hajot for a considerable period. But, in view of the judgment of Hon'ble Supreme Court, in the case of NCB vs. Mohit Agarwal, reported in [2022] 0 Supreme (SC) 619, the length of period of his custody or the fact that the charge sheet has been filed and the trial has commenced are by themselves are not consideration that can be treated as persuasive ground for granting relief to the accused under section 37 of the NDPS Act. That being so, the submission of Mr. Biswas regarding the period of detention as a ground of releasing the accused on bail has no substance.
8. It is also not in dispute that the vehicle, from which contraband substances were recovered, was driven by accused Tarun Kumar and the present accused is the registered owner of the same. The substances were being carried in a cavity made specially in the vehicle, and it is unbelievable that it was made without the knowledge and permission of the owner, the factum of which shows his culpable mental state. Moreover, trial is still going on and as held by Hon'ble Supreme Court in the case of Noor Aga Vs. State of Punjab reported in (2010) 3 SCC (Cri) 748, wherein the court had observed that a bare perusal of the said provision (Sections 35 and 54 of the Act), would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift to the accused. In the case in hand trial is going on and only one witness has been examined till date, and as such, the submission of Mr. Biswas, in this regard, cannot be accepted.
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9. Besides, the CDR analysis of their mobile phones of the accused Tarun Kumar and of the present accused, from 01.07.2020 to 12/15.08.2020, goes a long way to show their connection at the material time of occurrence. Further it appears from the scanned copy of the record of learned court below that accused Tarun Kumar and present accused, both have criminal antecedent, and present accused has been charge sheeted, being charge sheet No. 140/2012, dated 09.10.2012, in connection with Jhanjharpur P.S. FIR No.34/2012, to stand trial under section 364/120(b) IPC.
10. There is also no dispute that the contraband substances, so recovered from the possession of the accused, are of commercial quantity. That being so, the embargo under section 37 of the NDPS Act will be applicable herein this case. Though Mr. Biswas, learned counsel for the accused, referring to the evidence of prosecution witness and other materials on record, submitted that the same are not at all sufficient to reveal any complicity of the accused with the offence charged, yet, the same left this court unimpressed. This court cannot appreciate the evidence so recorded by the learned court below to find out the guilt of the accused. That is the function of the learned trial court. In the case of Mohit Agarwal (supra) Hon'ble Supreme Court has explained the same in paragraph No. 15 as under:-
"15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he Page No.# 6/7 has been charged with and he is unlikely to commit an offence under the Act while on bail."
11. While keeping the aforesaid principles in mind, an exercise is carried out to find out the availability of reasonable ground for believing that the accused is not guilty of the offences that he has been charged with, by examining the materials and evidence on the record of the learned court below, for the limited purpose of releasing him on bail, and to ascertain that he is unlikely to commit an offence under the Act while on bail, this Court is unable to derive its satisfaction that there exist any reasonable ground to show that the accused is not guilty of the offence and that he is unlikely to commit such offence while on bail. Apart from the statement of the co-accused, and of the accused himself under section 67 of the NDPS Act, there exist numbers of circumstances, so described and discussed herein above, and because of the same the matter stands in a different footing. This being the position, this court is unable to record concurrence with the submission of Mr. Biswas, and the ratio, laid down in the case of Tofan Sing's case, would hardly come into his aid.
12. In view of the above and also in view of the embargo under Section 37 of the NDPS Act, this Court is of the view that it is not a fit case for the privilege of bail that can be extended to the accused. It well settled by Hon'ble Supreme Court in the case of Mohit Agarwal (supra), that liberal approach in the matter of bail, under the NDPS Act is indeed uncalled for.
13. Accordingly, the instant petition stands dismissed. However, the learned court below is directed to expedite the trial and complete the same at the earliest possible time, without being influenced by any of the observation made herein above as the same is made only for the purpose of disposing this bail application, not merit of the case, and if necessary, recourse has to Page No.# 7/7 be taken to the provision of section 309(1) Cr.P.C.
JUDGE Comparing Assistant