Mussadique Hussain vs The State Of Assam
2021 Latest Caselaw 1606 Gua

                                                                       Page No.# 1/9

GAHC010070172021




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

                                Case No. : Bail Appln./876/2021

            MUSSADIQUE HUSSAIN
            S/O NUR HUSSAIN, R/O HOUSE NO. 28, BYELANE NO. 2, ANANDNAGAR,
            P.S.-NOONMATI, DIST- KAMRUP(M), ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR. T DEURI

Advocate for the Respondent : PP, ASSAM

                                   BEFORE
                  HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

                                           ORDER

17-06-2021

1. The Court proceedings have been conducted through Video-Conference due to COVID-19 pandemic.

2. This is an application made under Section 439 Cr.P.C., seeking bail by the accused-petitioner, namely, Mussadique Hussain, in connection with Basistha Police Station Case No.416/2021 , registered under Sections 22(c)/29 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

Page No.# 2/9

3. Heard Mr. T.Deuri, learned counsel for the petitioner. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam for the Respondent State.

4. The fact of the case is that on 04.03.2021, at about 6.30 P.M., on the basis of secret information received by the informant, the S.I. of Police Sharvan Kr. Engti of Basistha Police Station, after observing legal formalities, searched the Hotel Blues Guest House, Suraj Valley apartment, Lalmati, and apprehended one Manohar Pradhan and Jenet Ramhnemkim and recovered 3 Kgs. of WY tablets and seized the same in presence of witnesses. The seized contraband was recovered from a Godrej almirah in the reception lounge of the aforesaid Hotel Blues Guest House where it was kept by the aforesaid two accused persons. The owner of the said Guest House, one Bani Kant Medhi, was also suspected to be involved in the drug racket. The drugs were carried to Guwahati by the vehicles of Manikanchan Travels and Deep Travels. Both the above accused persons were arrested by the police.

5. I have also perused the petition and the grounds taken in the petition by the petitioner denying his involvement with the offence alleged in this case.

6. Case diary produced has also been perused.

7. It appears from the materials in the case diary that there is a statement of the co-accused Manohar Pradhan that he was helped by the present petitioner whom he knew since 2014-2015. Manohar Pradhan also stated that he used to pay some amount of money to the petitioner. The present petitioner was arrested on the basis of such statement of the co-accused. On perusal of the case diary also reveals that the some amount of money was deposited in the accounts of the present accused petitioner which are suspected to be received from the co-accused.

8. Learned counsel for the petitioner has submitted that the statement of Page No.# 3/9

the co-accused was recorded by the investigating police officer. Learned counsel for the petitioner has also submitted that on the basis of the statement of the co-accused only and in the absence of any independent witness/evidence, the detention of the accused petitioner is not proper and he deserves to be granted bail on that count alone.

9. On perusal of the case diary, it is found that the statement of the co- accused persons as well as the accused-petitioner have been recorded under Section 161 of the Code of Criminal Procedure, although it should have been recorded under Section 67 of the NDPS Act. However, such irregularity does not affect the merit of the statement as the value of a statement recorded under Section 161 of the Code of Criminal Procedure and under Section 67 of the NDPS Act is same so far evidentiary value is concerned in view of the decision in Tofan Singh Vs. State of Tamil Nadu in Criminal Appeal No.152 of

2013 dated 29th October, 2020, referred to hereinafter.

10. Learned counsel for the petitioner has referred to the decision of the Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu in Criminal

Appeal No.152 of 2013 dated 29 th October, 2020 and has submitted that by now the law relating to confessional statement, made before the investigating officer under the NDPS Act, has undergone a change and such statement is not to be treated as a confessional statement and the same is a statement as that of a statement made under Section 161 of the Code of Criminal Procedure.

The relevant portion of the said judgment is quoted below :

"155. We answer the reference by stating :

(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning Page No.# 4/9

of section 25 of the Evidence Act, as a result of which any confessional statement made to them 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.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."

11. In view of such decision of the Hon'ble Supreme Court, it is found that even if the statement, confessional in nature, made by the co-accused, is taken to have been recorded under Section 67 of the NDPS Act, such statement cannot be used as confessional statement in the trial of the case that being the same with that of statement made before a police officer.

12. Learned counsel for the petitioner has further submitted that the seized contraband was recovered from a Godrej almirah in the Hotel Blues Guest House allegedly kept by the co-accused Manohar Pradhan and Jenet Ramhnemkim. The contraband was recovered from their possession as per the seizure list. There is no connection with the present petitioner with the contraband seized in this case. The learned counsel has also contended that one cannot be convicted for a serious offence, like the one under the NDPS Act, which provides stringent punishment, solely on the basis of so called confession/statement of the co-accused. Learned counsel for the petitioner has also submitted that the petitioner has been in custody for 96 days as on date without there being any material against him justifying his detention in custody.

13. Mr. Gogoi, learned Additional Public Prosecutor, has submitted that the allegation against the present petitioner is of helping and sheltering the co- accused persons. The statement of the co-accused Manohar Pradhan itself indicates that he used to stay in the aforesaid Hotel Blues Guest House in Page No.# 5/9

connivance with its owner/co-accused Bani Kant Medhi. There is no materials in the case diary to justify the allegation of sheltering the co-accused persons by the present petitioner. On the other hand, the case has also not been registered under Section 27A of the NDPS Act which provides, inter alia, an offence of harbouring of accused person. Learned Additional Public Prosecutor has also submitted, during the course of hearing, that there is no allegation of direct involvement of the petitioner with an offence under the NDPS Act. He has also submitted that there is no independent witness in this case and the only material against the petitioner is the statement of the co-accused Manohar Pradhan.

14. The materials in the case diary does not justify from any independent witness/evidence that the accused petitioner had abated the commission of the alleged offence under Section 22(c) of the NDPS Act by the accused persons.

15. There is no dispute at the Bar that commercial quantity of contraband substance is involved in this case and as such, the rigors of section 37 of the NDPS Act shall apply. Therefore, in terms of the provision of section 37 and also in view of the decision of the Supreme Court in Satpal Sing -VS- State of Punjab, (2018) 13 SCC 813, it is imperative on the part of the court to record its satisfaction as mandated by section 37 of the NDPS Act, before granting or refusing bail. The Apex Court in Satpal Sing -VS- State of Punjab (supra) observed as under :-

"15. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Section 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not been entered, the order Page No.# 6/9

dated 21.09.2017 is only to be set aside and we do so."

16. Section 37 (i) (b) of the NDPS Act reads as under :-

"(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 CRL.M.C. 6222/15 & con. cases 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."

17. Section 21 (4) of the The Maharastra Control of Organized Crime Act, 1999, which provision is similar to the provision of Section 37 of the NDPS Act, and it reads as follows :-

"(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 of 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."

18. The Hon'ble Supreme Court had considered the above provision in Maharashtra Control of organized Crime Act, 1999 in the case of Ranjitsing Brahmajeetsing - Vs- State of Maharashtra & Anr. (2005) AIR SCW 2215, where the Apex Court observed as under :-

"Similar provisions exist in the Maharashtra Control of Page No.# 7/9

Organized Crime Act, 1999 and in particular Section 21 thereof. The Supreme Court in the recent case of Ranjitsigh Brahmajeetsing Sharma v State of Maharashtra and another 2005 AIR SCW 2215 had occasion to consider the said provision in great detail. In that provision also restrictions on the power of the court to grant bail have been imposed. However, the Supreme Court observed that the restrictions on the power to grant bail should not be pushed too far and it was of the opinion that if the court, having regard to the materials brought on record, is satisfied that in all probability the accused may not be ultimately convicted, an order granting bail may be passed. It further held that the satisfaction of the court as regards his likelihood of not committing any offence while on bail must be construed to mean an offence under the very Act and not any offence whatsoever be it a minor or major offence. It further observed that for the purpose of considering the application for grant of bail, although detailed reasons are not necessary to be assigned the order granting bail must demonstrate an application of mind, at least in serious cases, as to why the applicant has been granted or denied the privilege of bail. 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."

19. In the aforesaid decision, the Hon'ble Supreme Court has observed that for the purpose of considering the application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate an application of mind, at least in serious cases, as to why the applicant has been granted or denied the privilege of bail. 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.

20. Taking into consideration the principles laid down in Ranjitsing Brahmajeetsing (supra), this Court has considered the fact of this case and the statement of one of the co-accused implicating the petitioner that the petitioner helped them in their drug business and also received commission from them. Recordedly no contraband was seized from the possession of the Page No.# 8/9

petitioner and this is also not the accusation against the petitioner that he possessed, manufactured, purchased or transported the seized contraband to attract an offence punishable under Section 22(c) of the NDPS Act.

21. The learned Additional Public Prosecutor has referred to the statement of the accused petitioner himself stating that the accused petitioner had helped the co-accused to justify that the accused petitioner had abated the commission of offence by the co-accused. But, even if the statement of the present accused petitioner remains as it is, yet there is no scope for conviction of the petitioner on such statement as well as on the basis of the statement of the co-accused in view of the law laid down in Tofan Singh (supra).

22. As indicated above, in Ranjitsing Brahmajeetsing (supra), the Hon'ble Supreme Court also observed that restrictions on the power to grant bail should not be pushed too far and it was of the opinion that if the court, having regard to the materials brought on record, is satisfied that in all probability the accused may not be ultimately convicted, an order granting bail may be passed. Therefore, in the instant case, in view of the materials available in the case diary, as indicated in the foregoing discussions, this Court is satisfied that there is reasonable ground for believing that the petitioner is not guilty of the offence alleged against him. There is also neither any material placed before this Court by the State nor there is any material in the case diary to show that in the event of his release on bail, he would likely to commit any offence again under this Act.

23. In view of the above discussions and the findings recorded therein, the petitioner deserves to be granted bail and is granted.

24. Accordingly, the accused-petitioner, named above, shall be released on bail in connection with the case aforementioned on furnishing bail bond of Page No.# 9/9

Rs.25,000/- with two suitable sureties of the like amount, to the satisfaction of learned Special Judge under the NDPS Act, Kamrup (Metro) at Guwahati.

25. The direction for bail is further subject to the conditions that the accused- petitioner:

(a) shall not leave the territorial jurisdiction of learned Special Judge under the NDPS Act, Kamrup (Metro) at Guwahati , without prior written permission from him;

(b) shall not hamper with the investigation, or tamper with the evidence of the case;

(c) 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.

26. Learned Special Judge under the NDPS Act, Kamrup (Metro) at Guwahati shall be at liberty to put any other condition in addition to the conditions mentioned above, while releasing the accused petitioner on bail.

27. In terms of the above, this bail application stands disposed of.

Return the case diary.

JUDGE

Comparing Assistant