Gauhati High Court
Page No.# 1/25 vs The State Of Assam on 30 April, 2021
Page No.# 1/25
GAHC010002532021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./126/2021
AHADUL HUSSAIN AND ANR.
S/O LATE ABDUL SUKKUR, VILL. DEUBARI, P.S. PATHARKANDI, DIST.
KARIMGANJ, ASSAM.
2: NOOR AHMED
S/O BURHAN UDDIN
VILL. ERALIGOOL (AHMEDPUR)
P.S. PATHARKANDI
DIST. KARIMGANJ
ASSAM
VERSUS
THE STATE OF ASSAM
TO BE REPRESENTED BY THE PP, ASSAM.
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
Linked Case : Bail Appln./498/2021
KABIR AHMED
S/O LATE TAFAZZUL ALI
VILL-TILLABARI
P.S.-PATHARKANDI
DIST-KARIMGANJ
Page No.# 2/25
ASSAM
PIN-78824
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
------------
Advocate for : MR. K N CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : Bail Appln./139/2021
FARUK AHMED
S/O LT. NEJAM UDDIN
R/O VILL ATANAGAR
(MOINA)
PO KANAIBAZAR
PS PATHARKANDI
DIST. KARIMGANJ
ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM
------------
Advocate for : MR. N H BARBHUIYA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : Bail Appln./367/2021
IKBAL BAHAR @ IKBAL BAHAR KHONDAKAR
S/O LATE ALA UDDIN @ ALA UDDIN KHONDAKAR
Page No.# 3/25
PRESENT ADD-VILL-HANIFABAD
ASIMGANJ
P.O.-KANAIBAZAR
P.S.-PATHARKANDI
DIST-KARIMGANJ
ASSAM
INDIA
PIN-788724
PERMANENT ADD- VILL-PURAN CHANDPUR
P.O.-KANAIBAZAR
P.S.-PATHARKANDI
DIST-KARIMGANJ
ASSAM
INDA
PIN-788724
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : Bail Appln./130/2021
RAHIM UDDIN
S/O SAHAB UDDIN
VILL. KABARIBOND
P.S. PATHARKANDI
DIST. KARIMGANJ
ASSAM.
VERSUS
THE STATE OF ASSAM
TO BE REPRESENTED BY THE PP
ASSAM.
Page No.# 4/25
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : Bail Appln./361/2021
FORID UDDIN @ MD. FARID UDDIN
S/O MD. NASIR ALI
VILL-SOUTH KEWTI
P.O.-ASHALKANDI
P.S.-PATHARKANDI
DIST-KARIMGANJ
ASSAM
INDIA
PIN-788723
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : Bail Appln./129/2021
SHAMIM UDDIN @ SHAMIM AHMED
S/O FAIZUL HAQUE
VILL. BAGAR SANGAN
P.S. PATHARKANDI
DIST. KARIMGANJ
ASSAM.
VERSUS
THE STATE OF ASSAM
TO BE REPRESENTED BY PP
Page No.# 5/25
ASSAM.
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : Bail Appln./575/2021
JILLUL HOQUE
S/O ABDUL JALIL
VILL-KOLAKAURI
P.O.-ERALIGOOL
P.S.-PATHARKANDI
DIST-KARIMGANJ
ASSAM
PIN-78824
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
------------
Advocate for : MR H R CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 30-04-2021
By these 8 (eight) nos. of applications filed under Section 439, Code of
Criminal Procedure, 1973 (CrPC), 9 (nine) nos. of accused-petitioners have
prayed for their release on bail as they are in custody in connection with
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Badarpur Police Station Case no. 312/2020 (G.R. Case no. 2170/2020)
registered for offences under Sections 21(c)/29 of the Narcotic Drugs and
Psychotropic Substances (NDPS) Act, 1985.
2. The accused-petitioners viz. (i) Ahadul Hussain and (ii) Noor Ahmed in Bail
Appln. 126/2021 are in custody since 08.12.2020. The accused-petitioner viz.
Rahim Uddin in Bail Appln. 130/2021 is in custody since 21.11.2020. The
accused-petitioner viz. Faruk Ahmed in Bail Appln. 139/2021 is in custody since
12.11.2020. The accused-petitioner viz. Shamim Uddin @ Shamim Ahmed in
Bail Appln. 129/2021 is in custody since 06.11.2020. The accused-petitioner viz.
Forid Uddin @ Md. Farid Uddin in Bail Appln. 361/2021 is in custody since
21.11.2020. The accused-petitioner viz. Ikbal Bahar @ Ikbal Bahar Khondakar in
Bail Appln. 367/2021 is in custody since 29.11.2020. The accused-petitioner viz.
Kabir Ahmed in Bail Appln. 498/2021 is in custody since 11.02.2021. The
accused-petitioner viz. Jillul Hoque in Bail Appln. 575/2021 is in custody since
14.11.2020.
3. As all these applications have arisen out of the same police case i.e.
Badarpur Police Station Case no. 312/2020, the same are taken up together, as
agreed to by the learned counsel for the parties.
4. Heard Mr. K.N. Choudhury, learned Senior Counsel for the accused-
petitioner in Bail Appln. 498/2021 and Mr. H.R.A. Choudhury, learned Senior
Counsel for the accused-petitioners in Bail Appln. 126/2021, Bail Appln.
129/2021, Bail Appln. 575/2021, Bail Appln. 130/2021, Bail Appln. 139/2021,
Bail Appln. 361/2021 & Bail Appln. 367/2021.Also heard Mr. N.K. Kalita and Mr.
T.K. Mishra, learned Additional Public Prosecutors for the State of Assam.
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5. The First Information Report (FIR) was lodged by an Assistant Sub-
Inspector of Police (ASI) attached to Badarpur Police Station on 04.11.2020. In
the FIR, it has inter-alia been stated that based on a specific information
received by the Officer In-Charge, Badarpur Police Station that one Maruti
Suzuki Wagon R car bearing registration no. AS-10/E-1339 (white colour) was
coming from Silchar side to Karimganj side with huge quantity of drugs, a
General Diary Entry being G.D. Entry no. 67 dated 04.11.2020 was registered.
Pursuant thereto, the Officer In-Charge, Badarpur Police Station deputed a team
of police personnel for special Naka checking in front of Badarpur Police Station
on National Highway 37 for checking of vehicles and interception of the said car
particularly. Accordingly, the team took position at 10-47 a.m. on 04.11.2020. At
around 11-00 a.m., the white colour Maruti Suzuki Wagon R car bearing
registration no. AS-10/E-1339 was stopped at the Naka checking when it was
found coming from Silchar side towards Karimganj side. The said car was found
driven by one Sabbir Ahmed and when questioned, his replies were found
unsatisfactory. The Officer In-Charge, Badarpur Police Station was informed and
he arrived at the spot. The Officer In-Charge, Badarpur Police Station authorized
one Sub-Inspector of Police to conduct search of the said car and accordingly,
the car was searched in presence of 4 (four)nos. of witnesses, who were found
present near the Naka checking spot. Upon thorough search of the said Maruti
Suzuki Wagon R car, 32 (thirty two) nos. of plastic soap cases containing
suspected brown sugar were found hidden in a modified box in the back of the
car. The box was opened by the driver of the car, Sabbir Ahmed by taking out
the right side rear wheel of the said car. The 32 (thirty two) nos. of plastic soap
cases were inside two polythene packets - one of pink colour and the other one
of yellow colour. The quantity of suspected brown sugar so found was weighed
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on the spot and on weightment, the quantity of suspected brown sugar was
found to be 1.330 Kg. Accordingly, the Sub-Inspector of Police seized the said
32 (thirty two) nos. of packets, found inside the two nos. of plastic bags of pink
colour and yellow colour, and the Maruti Suzuki Wagon R car bearing
registration no. AS-10/E-1339 along with its key. That apart, the registration
certificate of the said car in the name of one Noor Ahmed and one mobile
handset of Sabbir Ahmed were seized.
6. On receipt of the said FIR, the Officer In-Charge, Badarpur Police Station
registered the same as Badarpur Police Station Case no. 312/2020 for offences
under Sections 21(c)/29 of the NDPS Act.
7. Mr. K.N. Choudhury and Mr. H.R.A. Choudhury, learned Senior Counsel for
the accused-petitioners have submitted that the accused-petitioners have been
arrested merely on the basis of suspicion on the ground that the arrested
accused person, Sabbir Ahmed in his statement, made in custody, had stated
that some of these accused-petitioners were also involved in the alleged crime.
It is their submission that apart from such implication made by the said arrested
accused person, there are no other materials against the accused-petitioners to
justify their arrest. It is further submitted that the FSL Report has not been
placed before the Court despite strict direction of the Court. It has been
submitted that another accused-petitioner, Walid Hussain @ Mona who was also
arrested in connection with the case, has already been released on bail by a co-
ordinate bench of this Court by an order dated 25.02.2021 passed in Bail Appln.
2996/2020 [Walid Hussain @ Mona vs. State of Assam ] after perusal of the
materials in the case diary. They contend that the present accused-petitioners
are also similarly situated with said Walid Hussain @ Mona and, as such, the
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present accused-petitioners also be released on bail subject to suitable terms
and conditions and the present accused-petitioners undertake to abide by any
terms and conditions imposed and they would co-operate in the further
investigation of the case. It has further been submitted that all the accused-
petitioners have already been thoroughly interrogated in custody and nothing
incriminatory have been found against them till date. As such, they have
submitted, incarceration for any further period would be unjustified and unjust.
7.1. Learned Senior Counsel for the petitioners have referred to three orders
passed by three co-ordinate benches of this Court in 3 (three) other bail
applications involving commercial quantity of contraband substance viz. (i) order
dated 19.06.2019 passed in Bail Appln. 1464/2019 [Nurezzaman Islam @
Nurajjaman vs. State of Assam]; (ii) order dated 18.09.2020 passed in Bail
Appln. 1483/2020 [Pranab Das vs. Union of India]; and (iii) order dated
06.10.2020 passed in Bail Appln. 1636/2020 [Ashik Ahmed Mondal @ Larju vs.
State of Assam]. Learned Senior Counsel for the petitioners have also referred
to the decisions of the Hon'ble Supreme Court of India which have been
referred to in the above-stated three orders while considering the matter of bail
under the provisions of the NDPS Act involving commercial quantity of
contraband substance.
7.2. Mr. H.R.A. Choudhury, learned Senior Counsel by referring to the
documents annexed to the application, Bail Appln. 361/2021, has submitted that
one of the police officers had taken a biased attitude in the investigation against
the accused-petitioners therein because of previous enmity. He has submitted
that one of the accused-petitioners herein viz. Ikbal Bahar had earlier filed a
complaint case being C.R. no. 1486/2019 on 24.10.2019 against the said officer
Page No.# 10/25
where the accused-petitioner, in Bail Appln. 361/2021, Farid Uddin was listed as
one of the witnesses. The accused-petitioner, Ikbal Bahar had to file another
complaint case, C.R. no. 1092/2020 from jail against the said police officer. The
two accused-petitioners viz. Ikbal Bahar and Farid Uddin had complained about
their torture in custody by the said police officer who, according to the learned
Senior Counsel, had unauthorisedly taken part in the investigation of the case in
hand. To buttress his said submission, he has referred to an order dated
04.12.2020 passed by the learned Additional Sessions Judge (FTC), Karimganj in
Special Case (NDPS) no. 37/2020.
7.3. It has been averred by the accused-petitioner in Bail Appln. 498/2021,
Kabir Ahmed that based on an FIR dated 31.07.2018, Patharkandi Police Station
Case no. 324/2018 was registered under Section 22(c), NDPS Act and in the
said FIR, three persons were named as accused. By an application dated
10.08.2018, Section 29 of the NDPS Act was added in the said case and the
name of the accused-petitioner, Kabir Ahmed was added as an accused. But
when the charge sheet was submitted in the said case vide Charge Sheet no.
02/2019 dated 14.01.2019, his name was not included amongst the charge
sheeted accused persons. Another police case, Patharkandi Police Station Case
no. 59/2021 has been registered against the accused-petitioner, Kabir Ahmed
under Sections 188/224/325/353/333/326/307, IPC accusing him of obstructing
the police when they went to effect his arrest.
8. Learned Additional Public Prosecutors have submitted that the accused-
petitioners have been arrested on the basis of the statement of the arrested
accused person, Sri Sabbir Hussain who was arrested on 04.11.2020 after he
was found in possession of commercial quantity of suspected brown sugar.
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When the said accused person was interrogated in custody, he had implicated
some of the present accused-petitioners to be involved with him in the alleged
crime. After some of such accused persons were arrested they were
interrogated and on the basis of leads received from such interrogations, the
rest of the present accused-petitioners have been arrested. It has been
contended that all of the arrested accused persons are suspected to be
members of an organized gang which in involved in the business of drugs
peddling in the district of Karimganj and in the neighbouring districts as well as
in the neighbouring states for a long time. They have contended that the order
dated 25.02.2021 in Bail Appln. 2996/2020 [Walid Hussain @ Mona vs. State of
Assam] was passed without considering the mandatory prescription contained in
Section 37 of the NDPS Act and, as such, the present accused-petitioners
cannot be given the benefit of bail on the ground of parity. It has, however,
been submitted that till date, except the statements extracted from the
accused-petitioners during their custodial interrogations no other tangible
materials have been recovered and seized from the possessions of any of the
present accused-petitioners during the searches conducted at their premises or
other places connecting them with the alleged crime of drugs peddling and the
investigation is being carried out as on date. The detention of the accused-
petitioners are necessary in order to continue the investigation in effective and
unobstructive manner.
9. I have considered the submissions of the learned counsel for the parties
and perused the materials available in the case diary, produced by the learned
Additional Public Prosecutors for the State. I have also gone through the
decisions on which the learned counsel for the parties have placed reliance in
support of their respective submissions.
Page No.# 12/25
10. Section 21 of the NDPS Act has prescribed for punishment for
contravention in relation to manufactured drugs and preparations. As per clause
(c) of Section 21, where the contravention involves commercial quantity,
whoever, in contravention of any provision of the NDPS Act or any rule or order
made or condition of license granted thereunder, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports inter-State or uses any
manufactured drug or any preparation containing any manufactured drug shall
be punishable with rigorous imprisonment for a term which shall not be less
than 10 (ten) years but which may extend to 20 (twenty) years and shall also
be liable to fine which shall not be less than 1 (one) lakh rupees but which may
extend to 2 (two) lakh rupees. Section 29 of the NDPS Act has prescribed for
punishment for abetment and criminal conspiracy. It has inter-alia been laid
down that whoever abets, or is a party to a criminal conspiracy to commit an
offence punishable under Chapter IV of the NDPS Act which includes Section 21,
shall, where such offence be or be not committed in consequence of such
abetment or in pursuance of such criminal conspiracy, and notwithstanding
anything contained in Section 116 of the Indian Penal Code, be punishable with
the imprisonment provided for the offence.
11. Available literature indicates that brown sugar, also called smack, is an
adulterated form of heroin. Brown sugar/smack is usually made available in
powder form and the substance is about 20% heroin. Mention of heroin is found
in Entry no. 56 in the Table appended to the NDPS Act issued in terms of
clauses (viia) and (xxiiia) of Section 2 of the NDPS Act, specifying small quantity
and commercial quantity in respect of the narcotic drugs and psychotropic
substances mentioned therein. As per the said Entry no. 56, a quantity of heroin
upto 5 grams falls under small quantity and a quantity above 250 grams is
Page No.# 13/25
termed as commercial quantity.
12. The case of the prosecution here is that when Sabbir Ahmed was
apprehended on 04.11.2020, he was found in possession of suspected brown
sugar, which on weighment, was found to be weighed 1.330 Kg. Evidently, the
accusation made herein is in respect of commercial quantity of suspected brown
sugar.
13. At this stage, it is apposite to refer to Section 37 of the NDPS Act. Section
37 of the NDPS Act, 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;
(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."
14. Section 37 of the NDPS Act 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 makes it clear that the power to grant bail to a person accused of
Page No.# 14/25
having committed an offence either under Section 19 or Section 24 or Section
27A and also offences involving commercial quantity under the NDPS Act is not
only subject to the limitations imposed under Section 439, CrPC, but it is also
subject to the restrictions placed by sub-clause (b) of sub-section (1) of Section
37 of the NDPS Act. 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 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 are
cumulative and not alternative. The satisfaction contemplated regarding the
accused being not guilty, has to be based on reasonable grounds.
15. 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 and
the restrictions placed on the powers of the Court under Section 37, NDPS Act
are applicable to this Court also in the matter of granting bail. In Satpal Singh
vs. State of Punjab, reported in (2018) 13 SCC 813, 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 have been reiterated. It has been observed
that before allowing a bail application, the Court must be satisfied that there are
Page No.# 15/25
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.
16. 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 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. Relying on
those decisions, the said position is reiterated in Pranab Das (supra).
17. It is in the afore-mentioned context, the present bail applications are to be
considered. Though after recovery and seizure of suspected brown sugar from
the possession of Sabbir Ahmed 32 (thirty two) nos. of samples of 6 grams each
were drawn from 32 nos. of packets and sent to the Forensic Science Laboratory
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(FSL), Assam, Guwahati for its report on 05.11.2020, the FSL report on such
samples has not been provided by the Directorate of Forensic Science, Assam till
the date of hearing of these bail applications. It may be noted that on
08.03.2021, an order was made with a direction to the Director, FSL, Assam to
forward the FSL report on the samples of the seized substance so as to enable
the Investigating Officer (I.O.) to complete the investigation at the earliest and
to enable the Court to decide these bail applications without further delay. But
despite the said direction, no FSL report has been produced before this Court on
behalf of the State.
18. In view of submissions made by the learned counsel for the accused-
petitioners that the bail applications in the absence of the FSL report, may be
considered on merits by proceeding on the assumption that the seized quantity
is commercial quantity of brown sugar qua the involvement or otherwise of the
present accused-petitioners in the offence alleged in terms of Sections 21(c)/29
of the NDPS Act, these bail applications are taken up for consideration, by
proceeding on the said basis and by perusal of the materials collected during
the course of investigation carried out so far, as available in the case diary
placed before this Court.
19. The co-ordinate benches in Nurezzaman Islam @ Nurajjaman (supra) and
in Ashik Ahmed Mondal @ Larju (supra) had taken note of the provisions of
Section 21(4), contained in the Maharashtra Control of Organised Crime Act
(MCOCA), 1999, a provision [pari materia] to Section 37 of the NDPS Act, and
the decision of three-judges bench of the Hon'ble Supreme Court of India in
Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and another,
reported in (2005) 5 SCC 294. For ready reference, Section 21(4) of the MCOCA,
Page No.# 17/25
1999 is quoted hereunder :
"21(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 for 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."
20. While considering the restrictive nature of the provision contained in
Section 21(4) of MCOCA, 1999 vis-à-vis the right of personal liberty of an
individual, the Hon'ble Supreme Court of India in Ranjitsing Brahmajeetsing
Sharma (supra) has observed that the question as to whether a person is
involved in the commission of organized crime or abetment thereof must be
judged objectively. It has further observed as under :
"38. We are furthermore of the opinion that the restrictions on the power of the Court
to grant bail should not be pushed too far. If the Court, having regard to the materials
brought on record, is satisfied that in all probability he may not be ultimately
convicted, an order granting bail may be passed. The satisfaction of the Court as
regards his likelihood of not committing an offence while on bail must be construed to
mean an offence under the Act and not any offence whatsoever be it a minor or major
offence. If such an expansive meaning is given, even likelihood of commission of an
offence under Section 279 of the Indian Penal Code may debar the Court from
releasing the accused on bail. A statute, it is trite, should not be interpreted in such a
manner as would lead to absurdity. What would further be necessary on the part of
the Court is to see the culpability of the accused and his involvement in the
commission of an organised crime either directly or indirectly. The Court at the time
of considering the application for grant of bail shall consider the question from the
angle as to whether he was possessed of the requisite mens rea. Every little omission
Page No.# 18/25
or commission, negligence or dereliction may not lead to a possibility of his having
culpability in the matter which is not the sine qua non for attracting the provisions of
MCOCA. A person in a given situation may not do that which he ought to have done.
The Court may in a situation of this nature keep in mind the broad principles of law
that some acts of omission and commission on the part of a public servant may attract
disciplinary proceedings but may not attract a penal provision.
44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that
the court must arrive at a positive finding that the applicant for bail has not
committed an offence under the Act. If such a construction is placed, the court
intending to grant bail must arrive at a finding that the applicant has not committed
such an offence. In such an event, it will be impossible for the prosecution to obtain a
judgment of conviction of the applicant. Such cannot be the intention of the
legislature. Section 21(4) of MCOCA, thereof, must be construed reasonably. It must
be so construed that the court is able to maintain a delicate balance between a
judgment of acquittal and conviction and an order granting bail much before
commencement of trial. Similarly, the court will be required to record a finding as to
the possibility of his committing a crime after grant of bail. However, such an offence
in futuro must be an offence under the Act and not any other offence. Since it is
difficult to predict the future conduct of an accused, the court must necessarily
consider this aspect of the matter having regard to the antecedents of the accused, his
propensities and the nature and manner in which he is alleged to have committed the
offence.
46. 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. However, while dealing with a
special statute like MCOCA having regard to the provisions contained in sub-section
(4) of Section 21 of the Act, the court may have to probe into the matter deeper so as
to enable it to arrive at a finding that the materials collected against the accused
during the investigation may not justify a judgment of conviction. The findings
recorded by the court while granting or refusing bail undoubtedly would be tentative
in nature, which may not have any bearing on the merit of the case and the trial could
would, thus, be free to decide the case on the basis of evidence adduced at the trial,
without in any manner being prejudiced thereby."
Page No.# 19/25
21. In Nurezzaman Islam @ Nurajjaman (supra), neither narcotic drugs and
psychotropic substances nor any objectionable documents were recovered from
the house of the accused-petitioner therein. No material was collected during
the investigation to indicate that the said accused-petitioner was running any
business in drugs or had employed the other accused persons to transmit the
drugs. The entire case therein was hinged and was based around the statement
of the co-accused without any other positive evidence. In Ashik Ahmed Mondal
@ Larju (supra), pursuant to a secret information, three accused persons were
intercepted when they were going in a vehicle. On being searched, contraband
substance involving commercial quantity were seized from their possessions.
The accused-petitioner therein was arrested by the Narcotics Control Bureau
(NCB) on the basis of a statement of one of the afore-stated three arrested
accused persons, made purportedly under Section 67 of the NDPS Act, that he
would sell a part of the contraband substance to the accused-petitioner therein.
No contraband substance was seized from the possession of the said accused-
petitioner and no other material was brought on record to connect the said
accused-petitioner with the recovery of contraband or the offence involved in
the said case. Having considered the above fact situations, the co-ordinate
benches arrived at opinions that there were no reasonable grounds to believe
that the two accused-petitioners in Nurezzaman Islam @ Nurajjaman (supra)
and Ashik Ahmed Mondal @ Larju (supra) may ultimately be held liable for the
offences of those cases for which they were made accused.
22. Reverting back to the facts of the case in hand, it is found from the
materials in the case diary that after Sabbir Hussain was apprehended with the
suspected contraband substance on 04.11.2020, he was taken into custody and
was interrogated. During his interrogation, Sabbir Hussain mentioned the names
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of Jillul Hoque, Ahad Hussain, Noor Ahmed, Shamim Uddin @ Shamim Ahmed,
Abdus Sahid, Abdul Kahar, Faruk Ahmed amongst others, to be persons who
were involved with him in the alleged activities of drugs peddling. Sabbir Ahmed
stated that the suspected brown sugar were to be distributed to Shamim Uddin
@ Shamim Ahmed, Abdus Sahid, Abdul Kahar and Faruk Ahmed, who were
waiting at Karimganj to receive the consignment of suspected brown sugar.
After arrest of Shamim Ahmed @ Shamim Uddin, he was interrogated and
during such interrogation, he mentioned that Sabbir Ahmed, Jillul Hoque, Rahim
Uddin @ Jabed, Farin Uddin, Ikbal Bahar, Kabir Ahmed, Ahad Hussain, Noor
Ahmed, etc. were his associates in the business of drugs and some of them had
invested lots of money in the business. Some of the other accused-petitioners
during their interrogations, have stated the names of the other accused-
petitioners to be their associates in the alleged business of drugs peddling.
23. After the arrest of the accused-petitioners, a number of raids and
searches were made in the house premises of these accused-petitioners or in
places stated to have been based on information elicited from these accused-
petitioners. On going through the materials, it is found that the materials and
articles so far seized in this connection are Indian currency notes, a number of
vehicles, mobile handsets, bank account passbooks, bank cheque books, ATM
cards, PAN cards, etc. No narcotic drugs or psychotropic substance has been
found and recovered during such numerous raids and searches made so far
during the course of investigation. Though CDR of the mobile phone numbers of
the arrested accused persons have been analysed, no remark as regards
establishing any link of the present accused-petitioners with Sabbir Ahmed or
with the seized consignment of suspected brown sugar has been made. Thus,
save and except the statements of Sabbir Ahmed and some of these accused-
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petitioners recorded during their custodial interrogations, no other tangible and
positive materials have been collected so as to establish a link or connection
with either Sabbir Ahmed or with the transportation of suspected brown sugar,
weighing 1.330 Kg, recovered from the Maruti Suzuki Wagon R car bearing
registration no. AS-10/E-1339 (white colour) on 04.11.2020.
24. The Court is conscious of the fact that the clandestine business in narcotic
drugs and psychotropic substances is usually carried out in an organized and
secretive manner and it is difficult to collect all the positive evidence within a
short period of time. The offences under the NDPS Act are serious in nature as
it affects the whole society and it is in that view of the matter, provisions have
been incorporated therein for period of custody of a person accused of certain
offences under the Act, longer than the period provided in the CrPC. The
purpose of interrogation of a person suspected of such offences is to elicit
useful informations and materials so as to give the opportunity to the
investigating authority to direct its investigation in the right directions in a
meaningful manner. It is also to be noted that the investigation of the case in
hand is being carried out since 04.11.2020 and a substantial period of time has
elapsed in the meantime. But till date, except as mentioned above, no other
positive materials have been collected or unearthed so as to link or connect the
present accused-petitioners with the activities related to prohibited drugs. The
available materials as on date are in the form of inculpatory statements of the
arrested accused persons including the present accused-petitioners, which have
been recorded during their custody. Apart from the above and other than the
accused-petitioner, Kabir Ahmed, nothing has been brought to the notice of this
Court that any of these accused-petitioners has been found involved in
connection with drugs business or was/is an accused in or arrested in
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connection with a case under the NDPS Act at any point of time. In one case, he
was not charge-sheeted and the other one is not in respect of any offence
under the NDPS Act. In view of such fact situation obtaining, no exception can
be taken as regards criminal antecedents of the accused-petitioners so as to
arrive at a finding that if released on bail, he would commit any offence under
the NDPS Act.
25. One of the accused persons of Badarpur Police Station Case no. 312/2020,
Walid Hussain @ Mona has already been released by a co-ordinate bench of this
Court by order dated 25.02.2021 passed in Bail Appln. 2996/2020 on the ground
that the materials in the case diary did not have any material to suggest the
involvement of the said accused person in the case. On perusal of the materials
in the case diary, it is found that the said accused person was arrested on the
basis of similar accusations as like the present accused-petitioners.
26. Section 25 of the Evidence Act is specific to the effect that no confession
made to a police officer shall be proved as against a person accused of any
offence. The NDPS Act does not contain any provision which overrides Section
25 of the Evidence Act. The Hon'ble Supreme Court of India in Criminal Appeal
no. 152/2013 [Tofan Singh vs. State of Tamil Nadu ], decided on 29.10.2020, has
observed that to arrive at the conclusion that a confessional statement made
before an officer designated under Section 42 or Section 53 can be the basis to
convict a person under the NDPS Act, without any non obstante clause doing
away with Section 25 of the Evidence Act, and without any safeguards, would
be a direct infringement of the Constitutional guarantees contained in Articles
14, 20(3) and 21 of the Constitution of India. In the said decision, it has been
amply made clear, by the majority view, that any confessional statement made
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to police officers would be barred under the provisions of Section 25 of the
Evidence Act, and cannot be taken into account in order to convict an accused
under the NDPS Act.
27. In view of the afore-stated position of law and the discussion made above,
this Court is satisfied that there are reasonable grounds to believe that these
accused-petitioners may ultimately be acquitted of the offences under Sections
22(c)/29 of the NDPS Act. There are no cogent materials to indicate that in the
event of enlargement on bail, the accused-petitioners shall commit any offence
under the NDPS Act. Any further incarceration of the accused-petitioners in
anticipation of positive evidence does not appear to be justified. The
investigation of the case is still on. In such view of the matter, it calls for
imposition of appropriate conditions.
28. Accordingly, the accused-petitioners are allowed to be enlarged on bail
on furnishing a bail bond of Rs. 50,000/- each with two local sureties of Rs.
50,000/- each to the satisfaction of the learned Special Judge, Karimganj,
Assam, subject to the following conditions :
[1] The accused-petitioners shall furnish their local addresses and mobile
numbers along with proof before the learned Special Judge,
Karimganj, Assam;
[2] The accused-petitioners shall not leave the territorial jurisdiction of
the learned Special Judge, Karimganj, Assam without prior
permission from the said Court;
[3] The accused-petitioners shall cooperate with the Investigating Officer
of the case and shall attend before him on the first day of every
month and as and when their presence are required by the
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Investigating Officer of the case till the submission of the charge
sheet or final report, as the case may be, in Badarpur Police Station
Case No. 312/2020;
[4] The accused-petitioners shall not directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing such facts to
the Court or to any police officer;
[5] The accused-petitioners shall not obstruct or hamper the police
investigation and not to play mischief with the evidence collected or
yet to be collected by the police;
[6] The accused-petitioners shall maintain law and order and they shall
not commit an offence similar to the offence of which they are
accused, or of the commission of which they are suspected;
[7] In the event of breach of any of the conditions, the Special Judge,
Karimganj, Assam shall be at liberty to cancel their bail without any
reference to this Court.
29. It is, however, made clear that the observations made above are only in
respect of consideration of the present accused-petitioners' prayers for bail and
none of the observations made in this order shall have any bearing on the trial
of the accused-petitioners, in the event they are charge sheeted in the case.
30. Before parting with the applications in hand, this Court finds it appropriate
to observe that in one of the bail applications, Bail Appln. 361/2021,
interrogation charts of remand of four of the accused in connection with the
case are found annexed. On query, it has been submitted that certified copies of
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the same have been furnished when applied for. As such interrogation charts are
part of investigation, meant only to be kept in the case diary, this Court records
its disapproval to such practice of providing certified copies of interrogations
charts.
31. The applications stand disposed of in the aforesaid terms.
Return the case diary.
JUDGE
Comparing Assistant
