Gauhati High Court
Miss Sangita Modak vs The State Of Assam on 22 April, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010052572021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./706/2021
MISS SANGITA MODAK
D/O LATE AMAR MODAK, R/O VILL-LICHUTOLA, ALIPURDUAR
JUNCTION, P.O. AND P.S.-ALIPURDUAR, DIST-ALIPURDUAR, WEST
BENGAL
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. R BORA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
22.04.2021 Heard Mr. R. Bora, learned counsel for the accused-petitioner and Mr. H. Sarma, learned Additional Public Prosecutor for the respondent State of Assam.
2. By this application under Section 439, Code of Criminal Procedure, 1973 (CrPC), the accused-petitioner viz. Smti. Sangita Modak has prayed for her release on bail, as she is in custody since 18.07.2019 in connection with NDPS Case no. 101/2019, arising out of Guwahati G.R. Police Station Case no. 122/2019 registered for offences punishable under Sections 22(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act', for short).
3. Learned counsel for the accused-petitioner has submitted that the accused-petitioner is in custody since 18.07.2019. Since the investigation of the case has already been completed resulting into a charge sheet it is evident, he submits, that all the necessary evidence have been collected by the investigating authority. It is submitted that the accused-
Page No.# 2/5 petitioner is an employee in the Forest Department, West Bengal. It is his submission that the bag containing the suspected contraband was handed over to the accused-petitioner by one Md. Hussain Ahmed Laskar at Dibrugrah Railway Station when she was on her way to West Bengal. It was in good faith the bag was accepted by the accused-petitioner as Mr. Laskar had submitted that the same was needed to be delivered to a person known to him in West Bengal.
4. Learned Additional Public Prosecutor has opposed the prayer for bail by submitting that the quantity of contraband involved in the case in hand is commercial quantity as per the provisions of the NDPS Act, 1985. The Forensic Science Laboratory (FSL) report had given positive results and, thus, in the event the accused-petitioner is released on bail there is every possibility that the accused-petitioner would evade the trial. The concerned bag containing contraband was seized from the accused-petitioner and it cannot be said that she was not aware of the contents of the bag.
5. I have given due consideration to the submissions advanced by the learned counsel for the parties. A scanned copy of the case diary and the status report of the trial of the case in connection with NDPS Case no. 101/2019, requisitioned from the Court of learned Special Judge, Kamrup (M), have been received and the materials contained therein are perused.
6. The First Information Report (FIR) was lodged by a Sub-Inspector of Police attached to Guwahati G.R. Police Station on 18.07.2019. In the FIR, it was inter alia stated that at about 07-00 a.m. on 18.07.2019, a checking party during their routine checking, found three persons viz. (i) Smti. Sangita Modak i.e. the accused-petitioner; (ii) Smti. Soma Paul; and (iii) Md. Hussain Ahmed Laskar in a coach of 12423 down Rajdhani Express Train and they were suspected to be carrying drugs tablet in two bags. Accordingly, they were detained at platform no. 1 of the Guwahati Railway Station and a General Diary Entry vide Guwahati G.R.P.S. G.D. Entry no. 550 dated 18.07.2019 was registered. After due authorization, the informant reached the place of occurrence and checked the bags after consent from the said three detained passengers. On being checked, a recovery of 18 bundles containing 90 packets comprising of 17550 pieces of tablets of pink colour with WY written on them, were recovered from the bag carried by the accused-petitioner. Another 17 bundles containing 85 packets comprising of 16575 pieces of tablets were recovered from the bag carried by Smti. Soma Paul. Altogether 35 bundles containing 175 packets comprising of 34125 tablets were recovered from the two ladies and the same were seized from their possession vide two seizure lists. The FIR further mentioned that Md. Hussain Ahmed Laskar was the main accused. Samples for FSL examination i.e. 175 pieces of tablets from 175 packets, meaning thereby, 1 tablet from each packet were collected and marked. After registration of the case, the investigation was initiated and the accused persons were arrested and produced before the Court of learned Chief Judicial Magistrate, Kamrup (M), Guwahati on 18.07.2019.
7. After completion of investigation, the Investigating Officer (I.O.) of the case had filed a charge sheet vide Charge Sheet no. 107/2019 dated 30.11.2019 finding a prima facie case against the three accused persons named in the FIR including the present accused-petitioner, under Sections 22(c)/29 of the NDPS Act, 1985. Accordingly, NDPS Case no. 101/2019 has been registered and the same is pending at present before the Court of learned Sessions Page No.# 3/5 Judge, Kamrup (M), Guwahati being the Special Court under the NDPS Act, 1985. The appearance of the accused persons are being caused by production from judicial custody in the trial. Charges under Sections 22(c)/29 of the NDPS Act, 1985 were already framed against the accused persons by the learned Special Judge on 04.01.2020. On charges being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. Summons had been issued to the prosecution witnesses. During the pendency of the trial, applications for bail of the accused persons were preferred but such applications were rejected by the learned Court of Special Judge by order dated 15.02.2020.
8. The records inter-alia indicate that on 18.07.2019, at about 08-30 a.m., one black and ash colour pithu bag containing 18 bundles, each bundle containing 5 packets of small black colour polythene packets, i.e. 90 packets with each packet containing 195 pieces of pink colour tablets with WY written on them i.e. total 1755 pieces of tablets was recovered from the possession of the accused-petitioner at platform no. 1 of the Guwahati Railway Station. Recovery of 16575 pieces of similar tablets with WY written on them was made from the possession Smti. Suma Paul at about the same time and date at platform no. 1 of the Guwahati Railway Station. Certain articles were also seized from the possession of Md. Hussain Ahmed Laskar at about the same time and date also at platform no. 1 of the Guwahati Railway Station. All three of them were found sitting in a coach in 12423 down Rajdhani Express Train.
9. The Directorate of Forensic Science, Assam in its report dated 28.08.2019 after examination of the samples of 175 nos. of tablets weighing 17.548 grams, had reported that they had given positive tests for 'Methamphetamine'. In the Table appended to the NDPS Act, 1985, notified in terms of clauses (viia) and (xxiiia) of Section 2 thereof, Entry no. 159 mentions 'Metamfetamine' as a narcotic drug and psychotropic substance with 'Methamphetamine' as its non-proprietary name. The Table further mentions that a quantity lesser than 2 grams of it is to be treated as small quantity whereas a quantity greater than 50 grams of 'Metamfetamine/Methamphetamine' is to be treated as commercial quantity. If an accused is found in possession of commercial quantity of 'Metamfetamine/Methamphetamine' then under Section 22(c), such an accused person if convicted, has to undergo rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and he/she shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.
10. From the materials on record, it is prima facie evident that the quantity involved in the case in hand is commercial quantity.
11. 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)-
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(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 Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."
12. 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.
13. 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 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 sub- section (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".
14. 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 Page No.# 5/5 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 is to be examined to enter such a satisfaction. The Court has held that these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail.
15. 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.
16. 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. From a perusal of the materials on record, as have been briefly outlined above, this Court is not persuaded to hold a view that there are "reasonable grounds" for believing that the accused-petitioner is not guilty of an offence under Section 22(c)/29 of the NDPS Act, 1985 which albeit involves commercial quantity. The other grounds urged on behalf of the accused-petitioner, thus, requires no consideration. In view of the above, this Court finds that the application is bereft of any merit. Consequently, the same is dismissed.
17. It is, however, made clear that the observations made above are only in respect of consideration of the accused-petitioner's prayer for bail and none of the observations made in this order shall have any bearing on the trial of the accused-petitioner.
18. The application stands disposed of in the aforesaid terms.
Return the case diary.
JUDGE Comparing Assistant