Gauhati High Court
Page No.# 1/4 vs The State Of Assam on 19 December, 2024
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/4
GAHC010225292024
2024:GAU-AS:13008
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3298/2024
AKUM CHANG
S/O LATE F CHANG, R/O VILLAGE CHUNGAIXENG, RONGMEI, P.O. -
DIMAPUR, P.S. DIMAPUR EAST, DISTRICT DIMAPUR, NAGALAND, PIN
797112
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MRS. R MOMTAZ, MR ROBIUL HOQUE,MRS. ROMA ENGTIPI
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
19-12-2024 Heard Mr. A. I. Uddin, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, Assam for the State.
2. Petitioner namely, Akum Chang, son of late F. Chang, resident of village- Chungaixeng, Rongmei, Police Station-Dimapur East, District-Dimapur, Nagaland has Page No.# 2/4 filed this application under Section 483 BNSS, 2023 seeking bail in NDPS Case No. 23/2024 arising out of Borpathar P.S. Case No. 45/2023 under Sections 21(C)/29 NDPS Act, 1985, wherein he was arrested on 16.11.2023 and in custody since then.
3. As per the FIR dated 15.11.2023 on receipt of specific information around 11:17 am regarding transportation of narcotic substances by a XUV500 FWDW 8 vehicle bearing Registration No. AS-01-BD-2314 coming from Dimapur side after making a GD entry in Borpather Police Station, police personnel from the said station with due authorization proceeded to NH-38 at Khakrajan. On arriving the said point, the police personnel started with Naka Checking. When the vehicle matched with the source information reached the said place, police personnel following the due procedure in presence of independent witnesses searched the said vehicle and recovered one red colour polythene packet containing brown colour powdery substances which was kept concealed inside the spare tyre of the said vehicle. When the said powdery substance was subjected to field test on the spot with the help of drug Detection Kit in presence of witnesses and authorized officer, the result was found positive for Morphine and the recovered suspected Morphine weighted about 1850grms/1.850 Kgs. The suspected NDPS item (Morphine) along with Realme Smart Phone, Redmi Smart Phone, a White Colour SUV Vehicle and the red colour polythene were seized and both the petitioners and the other persons in the car were apprehended and were brought to Borpather Police Station. The said FIR was accordingly registered as Borpathar P.S. Case No. 45/2023.
4. According to the petitioner, the spare tyre of the said SUV vehicle seized in the case is affixed below the rear side of the vehicle, but which is basically in the outside of the vehicle.
5. Further, the petitioner submitted that proper procedure of sampling was not followed for sampling of the seized suspected NDPS item Morphine as both the materials taken out from two packets seized in the case have been mixed and Page No.# 3/4 forwarded to the FSL for its examination and report. Mixing of NDPS items from two different container and forwarding it to the FSL for examination is contrary to the procedure prescribed under the law. In that regard, petitioner placed reliance on two decisions of the Hon'ble Delhi High Court (Gauri Shankar Jaiswal Vs. Narcotics Control Bureau) decided on 31.05.2023 and Ahmed Hassan Muhammed Vs. Customs decided 11.02.2021.
6. The record of the case was called for by order dated 29.10.2024.
7. It is seen that the FSL report dated 01.02.2024 with regard to the seized suspected NDPS item in the case was confirmed to be that of Thebaine, a schedule NDPS item and the recovery of 1.850 grms from the conscious possession of the petitioner is much more than the commercial quantity as been specified by the NDPS Act, 1985.
8. After filing of the charge sheet in said Borpather P.S. Case No. 45/2023 on 29.02.2024, before the learned Special Judge (NDPS)-cum-Sessions Judge, Karbi Anglong, it was re-registered as NDPS Case No. 23/2024.
9. Charge under Sections 21(c)/29 of the NDPS Act was framed against the petitioner and other accused of the case on 18.04.2024 and the petitioners claimed to be tried.
10. It is seen that out of 11 named witnesses in the charge sheet, evidence of 3 of the witnesses have been examined by the learned Special Judge (NDPS), Karbi Anglong and they were also cross examined by the defence on behalf of the petitioner as on 13.08.2024.
11. Considering the above, the Court found that said NDPS Case No. 23/2024 is progressing well.
12. From the charge sheet of the case, it is seen that police personnel present at the time of the incident, the Executive Magistrate the concerned Scientific Officer of Page No.# 4/4 the FSL are yet to adduce their evidence.
13. At this stage, from the evidence of the three witnesses so far examined it is not ascertained that whether, the suspected NDPS items seized from the conscious possession of the petitioner were mixed and then sent to the FSL for its examination and report.
14. Considering the same, the submission of the learned counsel for the petitioner, Mr. A. I. Uddin at this stage, does not have force.
15. As 1.850 grms Thebine, a schedule NDPS item was recovered from the conscious possession of the petitioner and the trial is under progress, where three of the prosecution witnesses have already been examined as on 13.08.2024, the Court is of the view that it is not a fit case to grant bail to the petitioner considering his detention 16.11.2024.
16. Accordingly, this bail application of the petitioner namely, Akum Chang, son of late F. Chang, in said NDPS Case No. 23/2024 arising out of Borpathar P.S. Case No. 45/2023 stands rejected.
JUDGE Comparing Assistant