Gauhati High Court

Mazibur Rahman Mandal vs The State Of Assam on 22 June, 2021

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GAHC010068642021




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

                              Case No. : Bail Appln./862/2021

            MAZIBUR RAHMAN MANDAL
            S/O MD. SULEMAN ALI, R/O VILL- HATIPUTA, P.S.-CHAPAR, DIST- DHUBRI,
            ASSAM, P/R/A HEDAYETPUR, GUWAHATI, P.S.-LATASIL, DIST- KAMRUP
            (M), ASSAM


            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR. C K NATH

Advocate for the Respondent : PP, ASSAM

BEFORE HON'BLE MR. JUSTICE HITESH KUMAR SARMA 22-06-2021

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, Mazibur Rahman Mandal, in connection with CID Police Station Case No.02/2021 registered under Page No.# 2/8

Sections 22(C)/29 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

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

4. Scanned copy of the case diary as well as the charge-sheet, as called for, have been received and perused.

5. The fact of the case is that, on receipt of a secret information, the informant police officer had apprehended the accused petitioner with suspected Methamphemine tablets (WY) concealed in yellow coloured polythene bags containing four packets and seized the same from the possession of the petitioner while he was coming out from an auto rickshaw near Hazi Musafir Khana, Hedayatpur, Guwahati. The said contraband tablets, amounting to 3 kilograms, was seized from the possession of the petitioner in presence of witnesses.

6. The petitioner has taken the plea in the petition as well as during the course of submission that the petitioner is the driver of the auto rickshaw and the person who had carried the contraband in the said auto rickshaw had fled away leaving the contraband which was subsequently recovered by the police. He had denied that contraband was seized from his possession. It has further been submitted that the petitioner has been in custody for 153 days as on date and his further detention is not necessary as charge-sheet has already been laid.

7. In this case charge-sheet has already been laid against the Page No.# 3/8

petitioner. The petitioner was arrested on 20.01.2021 and forwarded to the Court on 21.01.2021. He was also given in police custody for the purpose of investigation of the case. In effect, he has been in custody with effect from 21.01.2021. Learned counsel for the petitioner, as indicated above, has submitted that the alleged contraband seized in connection with this case was carried by person who was travelling in the auto rickshaw involved in this case and who fled away from the place of occurrence leaving the alleged seized contraband, which is shown to have been recovered from the possession of the petitioner. The material in the case diary reveals that the petitioner was the auto rickshaw driver who had driven as well as possessing the auto rickshaw at the relevant point of time.

8. The note of the investigating police officer shows that the accused petitioner was caught and the person who had fled away from the place of occurrence was about to take the bag containing the drugs. It has also come out from such note that the petitioner was caught by the investigating police officer near Hazi Musafir Khana. The submission of the petitioner that the accused petitioner was the driver of the auto rickshaw and the passenger who had carried the alleged seized drug had fled away appears to have some force taking into account the above note of the investigating police officer that one passenger, who was about the take the bag containing the contraband, had fled away from the place of occurrence. Therefore, it appears that if the stand taken by the petitioner is correct, then he has made out a case for his bail.

9. Learned Additional Public Prosecutor has referred to the implicating Page No.# 4/8

statement of the accused petitioner himself and submitted that in view of his such statement, the petitioner is not entitled to bail.

10. I have considered his submission. The Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu in Criminal Appeal No.152 of 2013

dated 29th October, 2020 held 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 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 the decision of the Hon'ble Supreme Court in the above judgment, the implicating statement of the accused petitioner himself cannot be taken as a confessional statement, the same being similar with that of a statement made before the police officer.

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

13. 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."

14. The Hon'ble Supreme Court in the case of Ranjitsing Brahmajeetsing - Vs- State of Maharashtra & Anr. (2005) AIR SCW Page No.# 6/8

2215 considered a similar provision of Maharastra Control of Organized Crime Act, 1999 and has observed as under :

"Similar provisions exist in the Maharashtra Control of 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."

15. That being so, in view of the said judgment of the Hon'ble Supreme Court, detailed reasons are not necessary to be assigned while granting the bail, but it must demonstrate an application of mind to show as to why the applicant has been granted or denied the privilege of bail. It has also observed that 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.

16. However, in view of the fact that the stand taken by the petitioner that the person who had fled away from the scene of occurrence was a passenger in Page No.# 7/8

the auto rickshaw driven by the petitioner and the said person also carried the contraband allegedly seized from his possession appears to have some force, as indicated earlier, and if such fact is established during the trial, he is unlikely to be convicted of the offence involved in this case.

17. Such being the position, this Court is satisfied of the requirement of Section 37(i)(b) of the NDPS Act that the case might not result in conviction holding the accused petitioner guilty of the offence alleged. There is also no materials placed before this Court to show that in the event of release of the accused petitioner on bail, he is likely to commit offence under the NDPS Act again. That apart, the petitioner has been in custody for 153 days as on date.

18. In view of the above, the petitioner deserves to be granted bail and is granted.

19. Accordingly, the accused-petitioner, named above, shall be released on bail in connection with the case aforementioned on furnishing bail bond of 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.

20. 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 Page No.# 8/8

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.

21. 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.