Gauhati High Court
Page No.# 1/19 vs The State Of Assam on 24 March, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/19
GAHC010254672024
2025:GAU-AS:3212
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3702/2024
GOGOU HAOKIP
S/O JAMLAL HAOKIP,
A RESIDENT OF T. GANGPIJANG VILLAGE, P.O., P.S. AND DIST.
CHURACHANDPUR, MANIPUR.
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : M THUMRA, MR. S T KOM
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
24.03.2025 Heard Mr. S.T. Kom, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned Addl. P.P for the State.
Page No.# 2/19
2. By filing this bail application u/s 483 of BNSS, 2023, r/w Section 37 of the NDPS Act, the petitioner has prayed for bail in connection with NDPS Case No.03/2024 (corresponding to North Guwahati P.S Case No.111/2023) u/s 22(c)/29 of NDPS Act, pending in the Court of learned Special Judge, Kamrup, Amingaon.
3. The background of the case is that on 11.09.2023, an FIR has been lodged before the O/C Palashbari P.S stating inter alia that on receipt of an information regarding transportation of large quantity of narcotic drugs at Amingaon and the same was transported by three youths, a naka checking was conducted near Saraighat bridge. During naka checking, one vehicle bearing registration no. AS01-FM-7800 (Thar) was detected and searched. On being searched, 170 nos. of soap boxes containing 2 kg 100 grams of heroin were recovered from the secret chamber of the said vehicle. All the recovered items were seized and the three youths including the present petitioner was arrested.
4. Learned counsel for the petitioner has stressed his argument on the point that the petitioner is neither the owner of the vehicle from which the alleged contraband was recovered nor he was the receiver of the said narcotic drugs. He was simply sitting on the back seat of the vehicle without knowing the fact that the narcotic items were kept concealed inside the vehicle. He is innocent and he has no past criminal antecedent.
5. It is further submitted that in the early part of September, 2023, the petitioner was told by other two co-accused that they were travelling to Aizawl, Mizoram to pay a visit to some family members in a private vehicle (Thar). On receiving the news, the petitioner showed his interest in joining them and said that he was willing to join for sightseeing. Subsequently after staying at Aizawl for some days, when they reached Guwahati, they were intercepted by the Page No.# 3/19 North Guwahati Police at Amingaon which led to the alleged discovery of the said illegal drugs. The petitioner had no idea of the alleged drugs being carried in the same vehicle.
6. By referring the judgment of Dheeraj Kumar Shukla Vs. State of UP, reported in 2023 SCC Online SC 918, the learned counsel for the petitioner has pointed out that the Hon'ble Supreme Court has granted bail to the accused on the following observation -
"However, in the absence of criminal antecedents and the fact that the petitioner is in custody for last two and half years, we are satisfied that the conditions of S.37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed."
7. According to the learned counsel for the petitioner, similarly in the case in hand, the accused petitioner has been languishing in judicial custody for last one and half years since his arrest on 11.09.2023 but the trial court has failed to complete the trial during such period. Considering the above observation of the Hon'ble Supreme Court, the petitioner may be enlarged on bail.
The learned counsel for the petitioner has also relied on the following case laws on the ground of prolonged incarceration -
a) Rabi Prakash Vs. State of Orissa , reported in (2023) SCC Online SC 1109
b) Md. Muslim @ Hussain Vs. State (NCT OF Delhi) reported in (2023) SCC Online SC 352
8. It is further contended by the learned counsel for the petitioner that no material was being filed with the charge sheet to show the compliance of Page No.# 4/19 Section 52 A of the NDPS Act which requires the issuance of certificate by a Magistrate to -
a) certify the correctness of the inventory prepared by the O/C of the P.S;
b) certify the photographs of the seized drugs and conveyance being taken in his/her presence, are true;
c) certify that representative samples of the seized drugs were drawn in his/her presence and the list of samples so drawn are correct;
According to the learned counsel for the petitioner, in fact no material to show that even an application was filed before a Magistrate for allowing the said activities to be taken up before the Magistrate and to certify the same.
Learned counsel has relied on another case law for non- compliance of Section 52 A of NDPS Act vide Yusuf @ Asif Vs State, reported in (2023) SCC Online SC 1328.
Therefore, learned counsel for the petitioner submits that due to such irregularities found during investigation as well as in the trial, the petitioner may be enlarged on bail.
9. Per contra, learned Addl. P.P has opposed in granting bail to the petitioner by stating that the petitioner was travelling in the Thar vehicle at the relevant time from which commercial quantity of heroin was recovered. Though it is stated that the petitioner accompanied the two co-accused for sightseeing but before the trial court during cross-examination, no such plea was taken.
Page No.# 5/19 According to learned Addl. P.P, as commercial quantity of contraband was recovered in this case, the rigors of Section 37 of the NDPS Act shall be complied with.
10. It is further submitted that 3 (three) witnesses have already been examined before the trial court and they have identified the petitioner as one of the occupants in the Thar vehicle from which the alleged contraband was recovered. Under such backdrop, learned Addl. P.P prays for dismissal of the bail application.
11. I have given considerable thought to the submissions made at the Bar and have gone through the trial court records including the evidence of the witnesses recorded so far.
12. The parameters for granting bail were considered by the Hon'ble Supreme Court in Manik Madhukar Sarve Vs. Vitthal Damuji Meher, reported in 2024 SCC Online SC 2271, wherein it was observed as under -
"19. Courts, while granting bail, are required to consider relevant factors such as the nature of the accusation, the role ascribed to the accused concerned, possibilities/chances of tampering with the evidence and/or witnesses, antecedents. In Ajwar Vs. Waseem, 2024 SCC Online SC 1974, relevant parameters for granting bail observed -
26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, Page No.# 6/19 the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail."
13. In State of Haryana Vs. Dharamraj, 2023 SCC OnLine SC 1085, the Apex Court, while setting aside an order of the Punjab and Haryana High Court granting (anticipatory) bail, discussed and observed as follows -
"7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay Vs. Sudarshan Singh (2002) 3 SCC 598 and Kalyan Chandra Sarkar Vs. Rajesh Ranjan (2004) 7 SCC 528. In Prasanta Kumar Sarkar Vs. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the Page No.# 7/19 factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima
facie or reasonable ground to believe that
the accused had committed the offence;
(ii) nature and gravity of the
accusation;
(iii) severity of the punishment in
the event of conviction;
(iv) danger of the accused
absconding or fleeing if released on bail;
(v) character, behaviour, means,
position and standing of the accused;
(vi) likelihood of the offence being
repeated;
(vii) reasonable apprehension of
the witnesses being influenced; and
(viii) danger, of course, of justice
being thwarted by grant of bail."
14. Reverting to the case in hand, as per FIR as well as the evidence of the witnesses revealed that the accused petitioner was travelling in the Thar vehicle from which the alleged contraband was recovered. He was sitting in the back seat of the vehicle when it was intercepted by police. Hon'ble Supreme Court held in Madal Lal Vs. State of Himachal Pradesh, reported in (2003) 7 SCC 465, Page No.# 8/19 that the persons travelling in a vehicle knowing each other would be presumed to be in conscious possession and the burden shifts upon them that their possession was not conscious. It was observed as follows -
"18. The other plea which was emphasised was the alleged statement of accused Goyal Nath that he alone was in possession of the contraband bags. The plea centres around a statement of search witness PW 1, who stated that Goyal Nath told him that the contraband articles belonged to him. The statement was made totally out of context, and no credence can at all be attached to the statement. The accused, Goyal Nath, in his examination under Section 313 of the Code of Criminal Procedure, 1973, did not state that he alone was in possession of the contraband articles. On the contrary, he stated that he did not know anything about the alleged seizure.
19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle, and as noted by the trial court, they were known to each other, and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act, which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there Page No.# 9/19 must be a conscious possession.
21. ........
22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [AIR 1980 SC 52] to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes.
23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal Vs. State of M.P., reported in [(1972) 2 SCC 194], possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.
25. The word "possession" means the legal right to possession.
In an interesting case, it was observed that where a person keeps his firearm in his mother's flat, which is safer than his own home, he must be considered to be in possession of the same.
26. Once possession is established, the person who claims that it was not a conscious possession has to establish it because Page No.# 10/19 how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54, where also presumption is available to be drawn from possession of illicit articles.
27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.
28. In fact, the evidence clearly establishes that they knew about the transportation of charas, and each had a role in the transportation and possession with conscious knowledge of what they were doing. The accused-appellant, Manjit Singh, does not stand on a different footing merely because he was the driver of the vehicle. The logic applicable to other accused- appellants also applies to Manjit Singh."
15. In the case in hand, the trial court records shows that the accused petitioner though took the plea that he accompanied the two co-accused for sightseeing but it is not in dispute that the said plea was not taken earlier during examination of 3 (three) nos. of witnesses by giving any suggestion to the witnesses to that effect. Hence, his plea that he was not found in conscious possession of the alleged heroin cannot be accepted.
16. The police had recovered the commercial quantity of heroin as such the Page No.# 11/19 rigors of Section 37 of NDPS Act apply to the present case. Section 37 of NDPS Act provides that in an offence involving commercial quantity, the Court should be satisfied that the accused is not guilty of the commission of an offence and is not likely to commit any offence while on bail. Section 37 of the NDPS Act reads as follows:
"37. Offences are to be cognizable and non-bailable. -
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) --
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section 19 or section 24, or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Page No.# 12/19 Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
17. Section 37 of the NDPS Act was interpreted by the Hon'ble Supreme Court in Union of India Versus Niyazuddin & Another, reported in (2018) 13 SCC 738, and it was held that in the absence of the satisfaction that the accused is not guilty of an offence and he is not likely to commit an offence while on bail, he cannot be released on bail.
It was observed as follows -
"7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said Section. They are:
(1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) offences involving commercial quantity.
8. The accusation in the present case is with regard to the fourth factor, namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment.
(1) The court must be satisfied that there are reasonable grounds for believing that the person is Page No.# 13/19 not guilty of such offence;
(2) that person is not likely to commit any offence while on bail."
18. This position was reiterated in State of Kerala Vs. Rajesh, reported in AIR 2020 SC 721, wherein it was held:
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be the large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier Vs. Chief Secy., Union Territory of Goa, (1990) 1 SCC 95) as under :
'24. With deep concern, we may point out that the organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led Page No.# 14/19 to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament, in its wisdom, has made effective provisions by introducing Act of 1985 specifying mandatory minimum imprisonment and fine.
'8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence;
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has Page No.# 15/19 amended.
The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.PC but is also subject to the limitation placed by Section 37, which commences with the non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application, and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. If either of these two conditions is not satisfied; the ban for granting bail operates.
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 the existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying Page No.# 16/19 object of Section 37 that in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
19. A similar view was taken in Union of India Vs. Mohd. Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237 wherein it was observed -
"21. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27-A and also for offences involving a commercial quantity are:
(i) The Prosecutor must be
given an opportunity to oppose the
application for bail; and
(ii) There must exist
"reasonable grounds to believe" that (a)
the person is not guilty of such an offence,
and (b) he is not likely to commit any
offence while on bail."
20. The standard prescribed for the grant of bail is "reasonable ground to believe" that the person is not guilty of the offence. Interpreting the standard of "reasonable grounds to believe", a two-judge Bench of Hon'ble Supreme Court in [ Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798: (2007) 3 SCC (Cri) 505 ], held that -
"7. The expression used in Section 37(1)(b)(ii) is "reasonable Page No.# 17/19 grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged, and this reasonable belief contemplated, in turn, points to the existence of such facts and circumstances as are sufficient in themselves to justify the recording of satisfaction that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable".
'7. ... Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word "reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.
10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis, it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation.
11. The court, while considering the application for bail with reference to Section 37 of the Act, is not called upon to record a finding of not guilty. It is for the limited purpose essentially Page No.# 18/19 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 records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty."
21. It was held in Union of India v. Ajay Kumar Singh, reported in 2023 SCC Online SC 346 that the bail cannot be granted without complying with the requirement of Section 37 of the NDPS Act. It was observed as follows-
"4. This apart, it is noticed that the High Court, in passing the impugned order of bail, had lost sight of Section 37 of the NDPS Act, which, inter alia, provides that no person accused of an offence involving commercial quantity shall be released on bail unless the twin conditions laid down therein are satisfied, namely, (i) the public prosecutor has been given an opportunity to oppose the bail application; and (ii) the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any such offence while on bail."
22. Situated thus, it is implicit that no person accused of an offence involving trade in a commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.
Page No.# 19/19
23. In view of the aforesaid legal proposition corresponding to Section 37 of the NDPS Act, in the instant case, the commercial quantity of contraband i.e. alleged heroin was recovered from the secret chamber of the vehicle wherein the petitioner was travelling and it cannot be said that there are no reasonable grounds to connect him with the commission of the offence. Further there is no material on record to show that the petitioner is not likely to commit a similar offence, if he is released on bail. Hence, the petitioner has failed to satisfy the rigors of Section 37 of the NDPS Act.
24. In the result, the bail application is dismissed.
25. The observations made herein above are regarding the disposal of this bail application only and will have no bearing whatsoever, on the merits of the case.
26. With the above observations, the bail application is disposed of.
JUDGE Comparing Assistant