Gauhati High Court
Eyanur Ali vs The State Of Assam on 30 April, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/4
GAHC010025932021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./477/2021
EYANUR ALI
S/O. LT. ABDUL JALIL, R/O. MADHUSOULMARI PART-II, P.S. GAURIPUR,
DIST. DHUBRI, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MS. T SOM
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 30-04-2021 Heard Ms. T. Som, learned counsel for the accused-petitioner and Mr. N.K. Kalita, learned Additional Public Prosecutor for the State of Assam.
2. By this application under Section 439, Code of Criminal Procedure (CrPC), 1973, the petitioner viz. Eyanur Ali has prayed for his release on bail, who is in custody since 19.01.2021, in connection with Gauripur Police Station Case no. 92/2021, registered under Section 22(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
3. From the First Information Report (FIR) dated 18.01.2021 and the forwarding report dated 19.01.2021 whereby the accused-petitioner was forwarded to the Court of learned Page No. 2/4 Special Judge, Dhubri seeking his remand, it has emerged that when on the basis of an information received from a source that illegal business of contraband capsules was being carried out from the house of the accused-petitioner, the house of the accused-petitioner was searched. Upon such search, 280 nos. of Pyeevon Spas Plus capsules were recovered from the house of the accused-petitioner. Accordingly, the case being Gauripur Police Station Case no. 92/2021 has been registered for the offence under Section 22(c) of the NDPS Act suspecting the quantity of contraband substance to be commercial quantity.
4. Learned counsel for the accused-petitioner has submitted that the quantity of suspected contraband substance i.e. 280 nos. of Pyeevon Spas Plus capsules do not constitute commercial quantity. It has been submitted after the accused-petitioner was remanded to custody on 19.01.2021, the accused-petitioner is in custody for 100 days.
5. Learned Additional Public Prosecutor has submitted that he has received the concerned case diary. It has been submitted by the learned Additional Public Prosecutor that upon recovery of seizure of the suspected contraband substance, the case has been registered under Section 22(c) of the NDPS Act, 1985 purportedly on the ground that the contravention involved commercial quantity. The recovery and seizure were made on 18.01.2021 vide a seizure list of given date. It has been further submitted by him that after seizure of the suspected contraband substance, samples were drawn and the same were sent to the Forensic Science Laboratory (FSL), Assam at Guwahati for examination. The report of the FSL was received and in its report dated 09.03.2021, it has been reported that on examination, the samples gave positive test for Tramadol and the amount of Tramadol in each capsule was found to be 48.5 milligrams. The report has further indicated that two strips with total 16 (sixteen) nos. of blue coloured capsules weighed 10.4 grams (0.65 gram x 16 = 10.4 grams), branded as "Pyeevon SPAS Plus". According to him, each capsule is to be considered of 0.65 gram in weight and on that basis, if the total quantity of 280 capsules of Pyeevon SPAS Plus Capsules are considered, then it comes to 182 grams.
6. Mention of Tramadol is found in Entry no. 238ZH in the Table appended to the NDPS Act, 1985 issued in terms of clause (viia) and (xxiiia) of Section 2 of the NDPS Act, 1985. As Page No. 3/4 per the report of Forensic Science Laboratory (FSL) dated 09.03.2021, available in the case diary, the chemical analysis gave positive result for Tramadol. As per the said Entry no. 238ZH, a quantity of Tramadol upto 5 grams falls under small quantity and a quantity above 250 grams constitutes commercial quantity. The materials in the case dairy indicates that the quantity of Tramadol seized from the house of the accused-petitioner is below commercial quantity.
7. It has been submitted by the learned Additional Public Prosecutor, on the basis of the materials in the case diary, that subsequent to such recovery and seizure on 18.01.2021 of 280 nos. of capsules "Payeevon Spas Plus", no further recovery and seizure has been made from the possession of the accused-petitioner. It is in the above view of the matter, it has been submitted to the case appears to be under 22(b) of the NDPS Act, 1985 and the restrictions imposed under Section 37 of the NDPS Act for grant of bail is not attracted.
8. Section 22(b) of the NDPS Act, 1985 has inter alia provided that wherever, in contravention of any provision of the Act or any role or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter- State, exports inter-State or uses any psychotropic substance shall be punishable, where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which extend to ten years and with fine which may extend to one lakh rupees.
9. In the above perspective, the maximum period a person accused of an offence under Section 22(b) of the NDPS Act can be kept in custody for a maximum period of 60 days in terms of the provision contained in Section 167(2), CrPC. The accused-petitioner in the case in hand has been in custody for a period of 101 days as on date, and no charge sheet under Section 173, CrPC has been submitted by the Investigating Officer (I.O.) of the case till date.
10. In the above facts and circumstances, this Court is of the considered view that the rigours contained in the provisions of Section 37 are found to be not attracted in the case in hand. The materials prima facie suggest that it is a case under Section 22(b) of the NDPS Act, Page No. 4/4 1985. The aforesaid view arrived at, based on the basis of the materials available in the case diary, is tentative in nature and only for the purpose of considering the prayer for bail of the accused-petitioner.
11. Considering above fact situation obtaining in the case and the fact that the accused- petitioner is in custody since 19.01.2021, further detention of the accused-petitioner is found not necessary, provided he continues to extend his co-operation in the further investigation of the case. Accordingly, the petitioner is allowed to be enlarged on bail on furnishing a bail bond of Rs. 25,000/- with two local suitable sureties of the like amount to the satisfaction of the learned Special Judge, Dhubri, subject to the following conditions :-
[1] The accused-petitioner shall furnish his local address along with proof before the learned Special Judge, Dhubri;
[2] The accused-petitioner shall not leave the territorial jurisdiction of the learned Special Judge, Dhubri without prior permission from the said Court; [3] The accused-petitioner shall cooperate with the Investigating Officer of the case and shall attend before him once in every month and as and when his presence is required by the Investigating Officer of the case till the submission of the charge sheet or final report in Gauripur Police Station Case no. 92/2021;
[4] The accused-petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; [5] The accused-petitioner shall not commit any offence, while on bail; and [6] In the event of breach of any of the conditions, the learned Special Judge, Dhubri shall be at liberty to cancel his bail without any reference to this Court.
12. This application stands disposed of in the afore-mentioned terms. Return the case diary.
JUDGE Comparing Assistant