Gauhati High Court
Page No.# 1/9 vs The State Of Assam on 16 December, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/9
GAHC010196042021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3369/2021
DHANANJAYA DAS AND 3 ORS
S/O GOPAL DAS
R/O VILL- ROBINDRA NAGAR
P.S. SUNA MURA, DIST. SEPHAHIJALA TRIPURA
2: AMINUL ISLAM
S/O IMAN MIA
R/O VILL- SOBHAPUR
P.S. SONAMURA
DIST. SEPHAHIJALA (TRIPURA)
3: IMRAN HUSSAIN
S/O ABDUL QASIM
R/O VILL- SOBHAPUR
P.S. SONAMURA
DIST. SEPHAHIJALA (TRIPURA)
4: MANIK MIAH
S/O KALA MIAH
R/O VILL- SOBHAPUR
P.S. SONAMURA
DIST. SEPHAHIJALA (TRIPURA
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. L R MAZUMDER
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Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 16-12-2021 Heard Mr. L.R. Mazumder, learned Counsel for the accused-petitioners and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the respondent State of Assam.
2. By this application filed under Section 439, Code of Criminal Procedure, 1973 ['CrPC' and/or 'the Code', for short], the accused-petitioners viz. 1) Dhananjaya Das, 2) Aminul Islam, 3) Imran Hussain and 4) Manik Miah have prayed for their release on bail in connection with Karimganj Police Station Case no. 717/2021 registered for offences punishable under Sections 20[C]/25/29 of the Narcotic Drugs and Psychotropic Substances [NDPS] Act, 1985.
3. The First Information Report [FIR] was lodged by a Sub-Inspector of Police, attached to Karimganj Police Station, on 27.07.2021. As per the said FIR, a report was received at about 08-30 p.m. on 26.07.2021 from the BSF, Silchar to the effect that a huge quantity of Cannabis [Ganja] was being transported in a white coloured Maruti Suzuki Eeco Car having Tripura registration number and it was proceeding from Agartala to Guwahati. Information was also to the effect that it would cross toll gate at Karimganj between 08-00 p.m. to 10-00 p.m. On receipt of the said information, Karimganj Police Station General Diary Entry no. 646 dated 26.07.2021 was registered. A team of police personnel along with a Page No.# 3/9 team of BSF found the said white coloured Maruti Suzuki Eeco Car ['the subject- vehicle', for short] proceeding towards the Naka checking point laid near the toll gate, Karimganj. The subject-vehicle was stopped immediately and it was found that inside the subject-vehicle, there were 4 [four] occupants. The 4 [four] occupants were the petitioner nos. 1) Dhananjaya Das, 2) Aminul Islam, 3) Imran Hussain and 4) Manik Miah. Upon observing due formalities and by calling 3 [three] independent witnesses from the neighbourhood, the subject-vehicle was searched and during search, 15 [fifteen] nos. of packets of suspected compressed Cannabis [Ganja] wrapped with brown tapes were found. On weighment, the gross weight of the suspected contraband substance was found to be 63.600 Kg. Accordingly, the suspected contraband substance was seized vide a seizure list, apart from other articles. The 4 [four] occupants i.e. the 4 [four] accused-petitioners of the subject-vehicle were arrested and thereafter, produced before the Court of learned Chief Judicial Magistrate, Karimganj on 28.07.2021 and since then, the accused-petitioners are in custody.
4. The Investigating Officer [I.O.] after completing the investigation in connection with Karimganj Police Station Case no. 717/2021, had submitted the charge-sheet under Section 173[2], CrPC vide Charge Sheet no. 450/2021 on 29.08.2021 finding a prima facie case established against the 4 [four] arrested accused persons. Upon submission of the charge-sheet, the case has been registered as Special [NDPS] Case no. 73/2021 and the same is presently pending in the Court of learned Special Judge, Karimganj.
5. The scanned copies of the case record of Special [NDPS] Case no. 73/2021 and the case diary, as called for by the previous order dated Page No.# 4/9 26.11.2021, have been received.
6. I have perused the statements of the witnesses recorded under Section 161, CrPC by the Investigating Officer of the case, found available in the case record/case diary. The independent witnesses have corroborated the version stated in the FIR. The packets containing suspected contraband substance were seized immediately after the recovery. After seizure, the same were duly produced before the Court of learned Chief Judicial Magistrate, North Lakhimpur by preparing an Inventory of Seizure in order to draw samples. Samples were drawn and one sample was duly forwarded to the Forensic Science Laboratory [FSL] on 28.07.2021. The report of chemical examination in respect of the sample was furnished by the FSL on 05.08.2021. As per the said report, the examination gave positive test for Cannabis [Ganja]. Evidently, the quantity of contraband involved in this case is 63.600 Kgs of Cannabis [Ganja]. As per Entry no. 55 of the Table appended to the NDPS Act, a quantity of and above 20 Kg of Cannabis [Ganja] is commercial quantity.
7. At this stage, it is apposite to refer to Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 as substituted by Act 2 of 1989 with effect from 29.05.1989 with further amendment by Act 9 of 2001, reads as follows :
"37. Offences 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;
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(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 Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."
8. 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.
9. 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.# 6/9 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".
10. 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 are to be examined to enter such a satisfaction. The Court has held that these limitations Page No.# 7/9 are in addition to those prescribed under the CrPC or any other law in force on the grant of bail.
11. 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.
12. 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 not the period of detention but the merits qua the twin conditions laid down in Section 37 of the NDPS Act, 1985 which are required to be considered.
13. The accused-petitioners were the occupants of the subject-vehicle inside which the contraband substance i.e. Cannabis [Ganja] weighing 63.600 Kgs in Page No.# 8/9 15 [fifteen] nos. of packets were recovered and seized. The accused-petitioners are not residents of Assam and are residents of District - Sephahijala, Tripura. The contraband substance i.e. the Cannabis [Ganja] was carried in 15 [fifteen] nos. of packets inside the subject-vehicle. It is difficult to presume that the accused-petitioners did not have any knowledge about the existence of the packets, which were not small in sizes, being carried inside the subject-vehicle and the contents thereof. The possibility of evading the course of trial by the accused persons, being residents of another State in the event of their enlargement on bail, cannot be ruled out. Moreover, the trial of the case is yet to be started as no charge appears to have been framed till date.
14. It is well settled that the matters to be considered in 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 charge;
(iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. It is no doubt true that while considering an application for bail the aspect of personal liberty of the accused is also to be considered. But at the same time, the interest of free and fair trial of the case, more particularly, when it pertains to an offence of heinous nature is also to be looked into. The discretion vested in the Court for grant of bail or otherwise has to be exercised in a judicious manner and not as a matter of course.
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15. From a perusal of the materials on record, as have been briefly outlined above, this Court is not persuaded to hold a view that the accused-petitioners are not guilty of the offences for which they have been charge sheeted and the quantity of contraband involved is commercial quantity. In view of the above, this Court finds the application bereft of any merit. Consequently, the same is rejected.
16. It is, however, made clear that the observations made above are only in respect of consideration of the four accused-petitioners' prayer for bail and none of the observations made in this order shall have any bearing on the trial of the accused-petitioners.
JUDGE Comparing Assistant