Gauhati High Court
Khagen Kalita vs The State Of Assam on 16 December, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010197632021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/3902/2021
KHAGEN KALITA
S/O LATE BUDU RAM KALITA
R/O VILL-BARUAHBARI
(KALITAKUCHI)
P.S. HAJO
DIST. KAMRUP (R), ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. P K SAHARIA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 16-12-2021 Heard Mr. P.K. Saharia, learned Counsel for the petitioner and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the respondent State of Assam.
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2. By this application under Section 438, Code of Criminal Procedure, 1973 ['CrPC' and/or 'the Code', for short], the petitioner viz. Khagen Kalita has approached this Court seeking the benefit of pre-arrest bail, apprehending his arrest, in connection with NDPS Case no. 135/2021, arising out of STF Police Station Case no. 04/2021 registered for offences punishable under Sections 20[C], Narcotic Drugs and Psychotropic Substances Act, 1985, which is presently pending in the Court of learned Special Judge, Kamrup at Guwahati.
3. Mr. Saharia, learned counsel for the petitioner has submitted that the petitioner was not named in the First Information Report. It was one Nirmal Das who has been named in the First Information Report as the accused. The contraband was seized when search was conducted in the house of one Rumi Patwary, a sister of the accused Nirmal Das.
4. Mr. Gogoi, learned Additional Public Prosecutor has submitted that while submitting the charge sheet, the Investigating Officer [I.O.] of the case had reported that the petitioner was found evading arrest and he was shown as an absconder. Subsequently, the trial court of learned Special Judge, Kamrup, Guwahati has issued non-bailable warrant of arrest [NBWA] against the petitioner. It is further submitted that evidently, the quantity of contraband involved in the case is commercial quantity and, as such, the restrictions under Section 37 of the NDPS Act will be attracted for consideration of the prayer for bail in respect of the petitioner.
5. The scanned copy of the case diary and the case record of NDPS Case no. 135/2021, as called for by the previous order dated 24.11.2021, have been Page No.# 3/8 received.
6. The First Information Report [FIR] was lodged by a Sub-Inspector of Police, STF Police Station at Guwahati, on 16.06.2021. As per the said FIR, an information was received at about 07-00 a.m. on 16.06.2021 to the effect that a huge quantity of Cannabis [Ganja] was kept concealed for the purpose of illegal trading at Village - Sesa Kumarpara under Hajo Police Station. Accordingly, a team of STF police personnel was formed and proceeded to Sesa Kumarpara. After reaching the said village, a search operation was launched with the assistance of the police personnel from Hajo Police Station. At about 01-30 p.m., the police team conducted the search in the house of one Smti. Rumi Patwary and during the said search, 10 [ten] bags containing suspected Cannabis [Ganja] were found concealed in an outhouse located in the premises of Smti. Rumi Patwary. On weighment of the suspected Cannabis [Ganja], it was found to be 47 Kgs. The search operation was conducted in presence of independent witnesses. The statements of the independent witnesses, available in the case diary have corroborated the said fact of search, recovery and seizure.
7. After the search, recovery and seizure, the accused person named, Nirmal Das was arrested and after arrest, he was produced before the learned Court of Judicial Magistrate, First Class on 17.06.2021. The suspected contraband substance and the seizure list were placed before the Court of learned Chief Judicial Magistrate, Kamrup, Guwahati on 17.06.2021 by preparing an Inventory of Seizure and a prayer was made to allow the I.O. to draw samples from the seized suspected Cannabis [Ganja] for forwarding the same for chemical examination to the Forensic Science Laboratory [FSL], Assam, Page No.# 4/8 Guwahati. Such permission was granted by the learned Judicial Magistrate, First Class, Kamrup, Guwahati on 18.06.2021 and accordingly, samples were drawn and forwarded to the FSL, Assam for chemical examination. As per the FSL report dated 03.07.2021, the examination gave positive test for Cannabis [Ganja].
8. The statement of the arrested accused person, Nirmal Das and other witnesses have been recorded by the Investigating Officer of the case. In his statement, the accused person, Nirmal Das disclosed that he procured the Cannabis [Ganja] from the present petitioner. The statements of the witnesses have corroborated the fact that the Cannabis [Ganja] were supplied to the arrested accused, Nirmal Das by the present petitioner. As per the version of the arrested accused, Nirmal Das at the time of the search operation, the present petitioner was in the vicinity of the place of search i.e. the house of Smti. Rumi Patwary and he was in constant touch with the present petitioner discussing about sale and delivery of the contraband substances. During the course of investigation, the arrested accused person also disclosed two mobile phone numbers of the present petitioner to the Investigating Officer. During the course of investigation, the Investigating Officer of the case had duly obtained call details records [CDRs] of the arrested accused person and present petitioner. From the CDRs for the period from 14.06.2021 to 16.06.2021, it is demonstrated that there were huge nos. of phone calls between the two persons i.e. the arrested accused and the present petitioner. The CDRs further indicate that the petitioner was in the vicinity of the house of Rumi Patwary when the search operation was carried out and 47 Kg of Cannabis [Ganja] was recovered.
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9. The Investigating Officer during the course of investigation had sent through the competent authority, a number W.T. messages to all the police stations in the State of Assam, for apprehending the petitioner. Despite sending for repeated W.T. messages to all the police stations, the petitioner is found evading the arrest. When the petitioner was found evading arrest, the charge sheet had been submitted with a prayer to declare the petitioner to be absconder. The said fact has been noted by the learned Special Judge and accordingly, learned Special Judge had issued non-bailable warrant of arrest [NBWA] by order dated 29.10.2021 and order dated 26.11.2021 for the arrest of the petitioner. Despite having knowledge about the submission of the charge sheet against the petitioner, the petitioner has approached this Court seeking the benefit of pre-arrest bail under Section 438 of the Code, instead of approaching the learned jurisdictional trial Court against the two orders whereby the non-bailable warrant of arrest [NBWA] has been against him.
10. It is settled law vide Narcotics Control Bureau vs. Kishan Lal and others , [1991] 1 SCC 705 that the powers of this Court to grant bail under Section 439, CrPC are subject to the limitations contained in Section 37 of the NDPS Act, 1985 and the restrictions placed on the powers of the Court under Section 37, NDPS Act, 1985 are applicable to this Court also in the matter of granting bail.
11. Section 37 of the NDPS Act, 1985 starts with a non-obstante clause. Keeping the non-obstante clause in mind, a reading of sub-section (2) of Section 37 of the NDPS Act, 1985 makes it clear that the power to grant bail to a person accused of having committed an offence either under Section 19 or Page No.# 6/8 Section 24 or Section 27A and also offences involving commercial quantity under the NDPS Act, 1985 is not only subject to the limitations imposed under Section 439, CrPC, it is also subject to the restrictions placed by sub-clause (b) of subsection (1) of Section 37 of the NDPS Act, 1985. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other two conditions viz. (i) the satisfaction of the Court that there are "reasonable grounds" for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. In other words, these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail. The operative part of Section 37, NDPS Act, 1985 is in the negative form. Such stringent restrictions have been put on the discretion of the Court for considering application for release of a person accused of offences prescribed therein by the Legislature consciously in view of the seriousness of the offences. The conditions mentioned in Section 37 of the NDPS Act, 1985 are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".
12. In Satpal Singh (supra), the restrictions placed on the discretion to be exercised by the Court while considering an application for bail, by way of Section 37, NDPS Act, 1985 have been reiterated. It has been observed that before allowing a bail application, the Court must be satisfied that there are "reasonable grounds" for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. The Court has held that these limitations are in Page No.# 7/8 addition to those prescribed under the CrPC or any other law in force on the grant of bail.
13. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence [Collector of Customs, New Delhi vs. Ahmadalieva Nodira , [(2004) 3 SCC 579 and State of Kerala etc. vs. Rajesh etc., [AIR 2020 SC 721]. The Court while considering the application for bail with reference to Section 37 of the NDPS Act, 1985 is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and to record its satisfaction about the existence of such grounds. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act, 1985.
14. As per Entry no. 55 of the Table appended to the NDPS Act, a quantity above 20 Kg of Ganja is commercial quantity. Evidently, the quantity involved in this case is 47 Kg, meaning thereby, the case involves commercial quantity. In an application for bail involving contraband of commercial quantity which brings in the limitations prescribed in Section 37 of the NDPS Act, 1985, it is the merits qua the twin conditions laid down in Section 37 of the NDPS Act, 1985 which are required to be considered.
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15. From the materials on record, as have been briefly outlined above, this Court is not persuaded to hold a view that there are "reasonable grounds" for believing that the petitioner is not guilty of an offence under Section 22[c]/29 of the NDPS Act, 1985 which albeit involves commercial quantity. In view of the above discussion, this application for pre-arrest bail under Section 438, CrPC is found bereft of any merit and accordingly, the same is rejected.
JUDGE Comparing Assistant