Page No.# 1/5 vs The State Of Assam And Anr
2021 Latest Caselaw 1478 Gua

                                                                      Page No.# 1/5

GAHC010026572021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.Rev.P./54/2021

              MD. KAMAL ALI AND ANR
              S/O LATE KUTUB ALI, VILL-MOLLAPARA, P.S.-NALBARI, DIST-NALBARI
              (ASSAM)

              2: MD. IKRAM ALI
               S/O MANJU ALI
              VILL-MOLLAPARA
               P.S.-NALBARI
               DIST-NALBARI (ASSAM

              VERSUS

              THE STATE OF ASSAM AND ANR
              REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

              2:BISWA JYOTI DOWARI
               S/O SRI JUGAL DOWARI
              VILL-JAMUGURI NO. 1
               P.S.-DHAKUAKHANA
               DIST-LAKHIMPUR
              ASSA

Advocate for the Petitioner   : MR. J I BORBHUIYA

Advocate for the Respondent : MR. R J BARUAH, ADDL. PP, ASSAM

BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN

Date of hearing: 05.04.2021.

Date of judgment:             20.04.2021
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                               JUDGEMENT AND ORDER (CAV)

Heard Mr J I Barbhuiyan, learned counsel appearing for and on behalf of the petitioner.

Also heard Mr R J Baruah, learned Additional Public Prosecutor for and on behalf of the State

of Assam.

2. Both the petitioners were facing the trial before the Court of learned Sessions Judge,

Nalbari, in connection with NDPS Case No. 23/2020, under Section 22 (c) of the NDPS Act.

The learned trial Court has framed the charge under the said section of law as on 23.12.2020

and also refused to grant bail to the accused persons, holding that the matter pertains to

commercial quantity. The present petition has been preferred under Section 482 of the CrPC,

read with Section 397/401 of the CrPC, challenging the order of framing charge.

3. The learned counsel for the petitioner, Mr J I Barbhuiyan submits that the alleged

contraband seized from Kamal Ali is 18.88 grams, which is above small quantity, but below

commercial quantity and the contraband recovered and seized from the other accused is

1600.08 grams and 90 grams and it contends that the learned trial Court has failed to

appreciate that the quantity of seized drugs attracts the offence under Section 21 (b) of the

NDPS Act. The charge under Section 22 (c) of the NDPS Act against Kamal Ali, is bad in law

and liable to be interfered into. However, nothing specific is mentioned as against the other

accused, Ikram Ali.

4. The learned Additional Public Prosecutor, however, opposed such contention of the

learned counsel for the petitioner and submits that in view of the FIR itself, one portion of the

contraband was recovered from Kamal Ali and whereas, remaining portion was recovered

from the other co-accused, as led by Kamal Ali. So, the entire recovered drugs is to be Page No.# 3/5

calculated as against both the accused persons, as they are dealing with the drug business

with each other.

5. So far as the FIR is concerned, it reveals that, on specific information, accused Kamal

Ali was apprehended along with some drugs and on interrogation, as he disclosed that he

bought the contraband from the accused Ikram Ali, Police also made a search in the house of

Ikram Ali and recovered huge amount of drugs. The seizure made from both the accused is

as mentioned below:-

" Seizure made from petitioner, Kamal Ali

A. Seizure of suspected drugs capsule of SPS TRANCAN PLUS from Kamal Ali - Total 32 numbers capsule

As per FSL Report (Page 36 of Criminal Revision Petition) - 1 capsule weight is 0.59 gm

Then total weight of 32 capsules are -32 x 0.58 gm = 18.88 grams

As such, total weight of recovered 32 capsules from Kamal Ali are 18.88 grams, which is below than commercial quantity.

          Seizure made from Ikram Ali


     B.     Seizure of suspected drugs capsule of
           SPS TRANCAN PLUS from Ikram Ali - Total 113 patta




As per FSL Report
(Page 36 of Criminal Revision Petition)              - 1 capsule weight is 0.59 gm
                                                    AND
                                            1 patta comprising 24 capsules
Total Capsules is 113 patta are                     - 24 x 113 patta = 2712 capsules
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Then total weight of 2712 capsules are             - 2712 x 0.59 gm = 1600.08 gms

As such, total weight of recovered 2712 capsules from accused Ikram Ali are 1600.08 grams, which are commercial quantity.

       Seizure made from Ikram Ali


C.     Seizure of suspected drugs capsules of
      Alprazolam from Ikram Ali                -Total 8 patta/strip


 (As per FSL Report
(Page 36 of Criminal Revision Petition)          -1 strip Alprazolam weight 11.25 gms


Then, total weight of 8 strip of Alprazolam are-
                                          8 x 11.25 gms = 90 grams

As such, total weight of recovered Alprazolam Capsules from accused Ikram Ali are 90 grams."

6. Now, it is the contention of the learned counsel for the petitioner that as the total

weight of the contraband seized from Kamal Ali was 18.88 grams, is below the commercial

quantity, so the charge under Section 22 (c) of the NDPS Act is not maintainable. On perusal

of the above chart, it is apparent that a huge amount of contraband was recovered from the

accused Ikram Ali and Kamal Ali bought the same from him. In the given circumstances, the

case of Kamal Ali cannot be segregated from other accused as they were knowingly involved

in dealing with the drug business. The totality of the drugs is 18.88 grams + 1600.08 grams

+ 90 grams = 1708.96 grams, whereas, 250 grams of Tramadol is commercial (as per FSL

Report, sample got positive test for Tramadol and Alprazolan).

7. The learned trial Court, on the basis of the matters on record and the FSL Report, has Page No.# 5/5

framed the charge under Section 22 (c) of the Act, which calls for no interference, while the

case has proceeded to a great extent. By this time, 5 witnesses have already been examined

by the learned trial Court and the case is at the verge of conclusion of the trial. The learned

trial Court is in a position to conclude the entire matter on the basis of the evidence so far

recorded.

8. The provision of Section 482 CrPC, cannot be invoked in a routine manner to resist the

legitimate prosecution at this belated stage. On the other hand, there is no perversity in the

order of framing charge by the learned trial Court to interfere into. There being no any merit

in the challenge made before this Court, the present petition stands dismissed with a

direction to the learned trial Court to conclude the trial at the earliest, having regard to the

fact that the accused persons are facing the trial from behind the bar.

9. Return the LCR.

JUDGE

Comparing Assistant