Meghalaya High Court
Gulam Wazid Burbhuiya & Anr. vs . State Of Meghalaya on 16 October, 2018
Equivalent citations: AIRONLINE 2018 MEG 159
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
Serial No. 05
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA No. 11 of 2018
Date of Order: 16.10.2018
Gulam Wazid Burbhuiya & Anr. Vs. State of Meghalaya
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Chief Justice
Appearance:
For the Petitioner : Mr. R. Gympad, Adv.
For the Respondent(s) : Mr. S. Sen, P.P.
Ms. Z.E. Nongkynrih, GA
i) Whether approved for reporting in Yes Law journals etc.:
ii) Whether approved for publication in press: No ORAL
1) In connection with Jowai P.S. Case No. 149 (6) 2018 four persons including the two petitioners were arrested. The two petitioners herein had applied for grant of bail before the Court of Special Judge (NDPS), Jowai their application has been dismissed vide order dated 21 st August, 2018. Hence the instant petition under Section 439 Cr.P.C.
2) Precisely the background of the case is that on specific information a team of police officers was constituted. The team on receiving information from the Superintendent of Police proceeded towards 4th Mile and conducted NAKA checking at Ialong near Pine Breeze Guest House, two vehicles bearing No. MN 01 X 8542 and MN 01 AK 6984 reached the checkpoint, 34 identical packets containing 100 pink colour tablets suspected to be psychotropic drug were recovered Page 1 of 4 and seized from vehicle No. MN 01 AK 8542 and 33 identical packets were also recovered from another vehicle. In total 67,000 tablets and cash Rs. 2,34,220/- was recovered from Smti M. Niangkasuan Zou, another Rs. 55,690/- was recovered from the possession of Shri Pausuanlam and drug traffickers namely Shri M Sianjathang Zou, Shri Shinsuanlam alias Lamboi Zou, Shri Mangminthang Zou, Smti Nenglam Zou, Shri Pausuanlam and others were accordingly apprehended. During course of investigation Sienjathang revealed that the contraband was to be delivered to Tingku.
3) On 13th July, 2018 confidential information was received to the effect that Gulam Wazid Burbhuiya (Petitioner No. 1) and Saha Alam Musamdar (Petitioner No. 2) were proceeding to Jowai for visiting Sienjathang at District Jail, Jowai. On receiving such information a team was constituted who intercepted the vehicle and arrested the petitioners. During the course of interrogation petitioner revealed that on 15th June 2018 he had crossed Malidor for rendezvous with Sienjathang, further stated that they have been doing business with Sienjathang for two years. It is on said basis petitioners have also been arrested.
4) Learned trial court while rejecting bail application has observed that there is incriminating material against petitioners. Learned trial court has also observed that defence has not been able to satisfy the court that there is reasonable ground to believe that the accused is not guilty of such offence. In view of Section 37 of NDPS Act, bail application cannot be considered at this stage.
5) According to learned counsel for petitioners, petitioners are not directly or indirectly connected with the commission of offence because nothing has been recovered from their possession, have been implicated only on the ground of visiting the main accused in the jail.
6) According to learned P.P. petitioners have been roped in on the strength of Section 120 B/34 IPC. He further submits that 67,000 tablets of narcotic have been recovered, being commercial quantity rigour of Section 37 of NDPS Act applies. He further added that for last more than 80 days clear link has not been established regarding Page 2 of 4 involvement of petitioner No. 2 but investigation is in progress. When petitioners visited drug traffickers in the jail there was an information about petitioner No. 1 to be connected with psychotropic drugs.
7) To comment on the merit of the case at this stage will not be apposite so as to avoid prejudice to either party but at the same time it has to be seen as to whether in any manner any material so far collected established involvement of petitioner No. 2 directly or indirectly with commission of the offence. True it is that he and petitioner No. 1 went to Jowai District Jail to see the main accused but whether petitioner No. 2 had any sort of connection or was he just by the way accompanying petitioner No. 1 has not been fully established.
8) There is not scope for extending concession in favour of drug trafficker because menace of drugs has to be curbed, stringent provision has to be given effect so as to arrest the trend of drug trafficking.
9) In the name of stringency provision any innocent cannot be allowed to be kept in jail indefinitely, the concept of liberty has to be protected as guaranteed under the Article 21 of the Constitution of India. While going through the entire record including case diary as was earlier produced now the latest report as submitted by learned P.P. and keeping in view the long incarceration of accused No. 2 in jail in absence of visible or invisible link connecting him with commission of offence release on bail cannot be withheld. Grant of bail no doubt is discretionary power but exercising thereof has to be reasonable in keeping with the object of stringent provision and the object of liberty.
10) The contention of learned counsel for petitioners that petitioner No. 2 even if taken to have accompanied petitioner No. 1 cannot be straight way to be taken as privy to commission of offence. While taking overall view of the entire gamut of the case, at this stage case is made out for concession of bail in favour of petitioner No. 2 only. His further incarceration in absence of cogent materials to connect him with commission of the offence shall have effect of negating right to liberty as guaranteed under Article 21 of the Constitution of India.
Page 3 of 4Investigation is in progress petitioner No. 2 cannot have golden wing to fly and give slip to the law, the interest of investigating agency also has to be protected so that smooth investigation is not hampered. Application to the extent of petitioner No. 2 namely Saha Alam Muzamdar deserves acceptance whereas vis-à-vis application of petitioner No. 1 deserves to be rejected. Therefore, grant of bail in favour of petitioner No. 1 is declined whereas in favour of petitioner No. 2 Saha Alam Muzamdar is allowed. He is directed to be released on furnishing bail bond of Rs. 50,000/- with personal bond of the like amount to the satisfaction of the investigating officer.
11) Release of petitioner No. 2 shall be subject to the following conditions:-
1. He shall remain available whenever require by the investigation agency for investigation purpose.
2. He shall not leave the limits of the States of Assam and Meghalaya without previous permission of investigating officer.
3. He shall not directly or indirectly in any manner tamper with prosecution evidence.
4. It shall be open to the investigating agency to seek cancellation of concession of bail as granted, if at any point of time circumstances so warrant.
11. The report as produced by learned P.P. in seal cover is returned to him so as to maintain confidentiality of investigation, to the extent permissible.
12. Disposed of as above.
(Mohammad Yaqoob Mir) Chief Justice Meghalaya 16.10.2018 "V. Lyndem PS"
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