Gauhati High Court
Ashik Ahmed Mondal@ Larju vs The State Of Assam on 6 October, 2020
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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GAHC010108162020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln. 1636/2020
1:ASHIK AHMED MONDAL@ LARJU
S/O. ABUL KALAM AZAD MONDAL, VILL. JHOWDANGA MONDALPARA,
P.O. JHOWDANGA, P.S. MANKACHAR, DIST. SOUTH SALMARA
MANKACHAR, ASSAM, PIN-783131.
VERSUS
1:THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. M ISLAM
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
06.10.2020 The accused petitioner, Ashik Ahmed Mondal @ Larju, who has been arrested on 28.07.2020, has sought for regular bail by this application under Section 439 CrPC, in connection with Mankachar PS Case No. 515/2020, under Section 22 (c) of Narcotics Drugs and Psychotropic Substances Act, 1985.
2. Heard Mr HRA Choudhury, learned Senior counsel appearing for and on behalf of the petitioner. Also heard Mr N K Kalita, learned Additional Public Prosecutor for the State of Assam.
3. Case Diary has been produced and perused.
4. As per the FIR, on the basis of secret information, Police staff of Mankachar PS on 28.07.2020, at 04:30 am, apprehended one accused, Minarul Islam, along with 1000 numbers R-7, suspected to be Page No.# 2/4 narcotic drugs tablet from his possession at Kuchnimara and the said articles were seized from his possession. During interrogation, Minarul Islam revealed the names of other accused persons, namely, Ashik Ahmed Mandal @ Larju, Kabiul Mondal @ Kabir and Monibar. On the basis of his statement, Ashiq Ahmed (present petitioner) was arrested.
5. Mr Choudhury, learned Senior Counsel for the petitioner, drawing the attention of the Court towards the FIR as well as the forwarding report etc., has submitted that nothing was recovered from the possession of the present petitioner at the time of occurrence and subsequent thereto, at the time of search in his house. Accordingly, it has been contended that without there being any positive evidence against the petitioner, detention of the accused petitioner is bad in law. It is vehemently submitted that detention on the basis of statement of co-accused without any supporting evidence in such serious offence, is not justified at all and rigour of Section 37 of the Act will not come into play as against the present accused person. Reliance has been placed on the decision of the co-ordinate Bench, passed in BA No. 1464 of 2019, dated 19.06.2019, wherein, in similar situation, the Court has granted bail to the accused, referring to the decision of Hon'ble Apex Court in Ranjit Singh Brahmajeet Singh -vs- State of Maharashtra & Another; (2005) AIR SCW 2215 and Satpal Singh -vs- State of Punjab; (2018) 13 SCC 813.
6. Mr Kalita, learned Additional Public Prosecutor, however contends that as the matter relates to commercial quantity and the accused apprehended has implicated the accused petitioner in the presence of witnesses, so the complicity of the present petitioner is made out.
7. I have considered the respective submissions of counsel, appearing for the parties and gone through the Case Diary. The aforesaid drug was recovered from the accused Minarul Islam at early hours, 04:30 am, in a bus-stop and on apprehension, named three other persons that those persons had given him the said drugs on the way and they have drug business. They also have such tablets in huge number in their possession. It is to be noted that the statement of accused person was recorded under Section 161 CrPC and not under Section 67 of the NDPS Act. The witnesses to the seizure list are the Police constable, accompanied by the informant and one another.
8. Pursuant to the submission made by the accused Minarul, the house of the present petitioner was also searched by the IO, but no any drugs (tablet etc.) or any objectionable documents was recovered from his house. No any evidence has been collected so far to indicate that the present accused person also run such drug business and has employed the other accused to transmit the drugs. The entire case against the petitioner hinges around the statement of the co-accused without any other positive evidence.
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9. Section 37 (i) (b) of the NDPS Act, reads as follows:-
"(b) no person accused of an offence punishable for [offences under Section 19 or Section 24 or Section 27 A 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.
10. Section 21 (4) of Maharashtra Control of Organized Crime Act, 1999, comprises similar restriction on bail, which reads as follows:-
"(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act, shall, if in custody, be released on bail or on his own bond, unless-
(a) The Public Prosecutor has been given an opportunity to oppose the application of such release; and
(b) 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."
11. While considering the above provision, the Hon'ble Supreme Court in Ranjit Singh (supra), observed as follows:-
"The restrictions on the power to grant bail should not be pushed too far and it was of the opinion that if the Court, having regard to the materials brought on record, is satisfied that in all probability the accused may not be ultimately convicted, an order granting bail may be passed. It further held that the satisfaction of the Court as regards his likelihood of not committing any offence while on bail must be construed to mean an offence under the very Act and not any offence whatsoever be it a minor or major offence. It further observed that for the purpose of considering the application for grant of bail, although detailed reasons are not necessary to be assigned the order granting bail must demonstrate an application of mind, at least in serious cases, as to why the applicant has been granted or denied the privilege of bail.
Page No.# 4/4 The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities."
12. It was held by the Hon'ble Apex Court that if on the basis of materials on record, the Court is satisfied that on all probabilities, the accused may not ultimately be convicted, the order of granting bail may be considered. It is also observed that duty of the Court at the stage of granting bail is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.
13. Turning to the present case at hand, as has been discussed above, it will be found that no contraband article was seized from the possession of the present petitioner, neither he was present at the place of occurrence nor any incriminating material including drugs was recovered from his house. The statement of the co-accused remain unsubstantiated during the course of investigation. Except some vague statement of witnesses that they heard that the accused also run drug business, no any legal evidence surfaced. Even the statement of accused is not recorded under Section 67 of the Act to have certain weight. Thus, no any material has been brought on record to connect the petitioner with the recovery of the contraband from the other accused, to satisfy the criteria that on all probabilities, present accused petitioner can be held guilty for the offence.
14. Obviously, the offence under NDPS Act, provides stringent punishment at the end of trial, including serious restriction on granting bail and in that view of the matter, there must be strong evidence on record, suggesting the complicity of the accused person with such serious offence. Surmises of events without any cogent material is not enough to bring an offence against an accused to apply the rigour of Section 37 of the NDPS Act.
15. Considering all entirety of the matter and the legal proposition set forth by the Apex Court, this Court is of the opinion that the provision of Section 37 of the NDPS Act is not applicable as against the present petitioner. Accordingly, the accused petitioner, aforesaid, is hereby allowed to go on bail of Rs. 25,000.00, with one surety of the like amount, to the satisfaction of learned Special Judge, Dhubri.
16. Bail Application stands disposed of.
17. Return the Case Diary.
JUDGE Comparing Assistant