Abdul Hoque vs The State Of Assam
2021 Latest Caselaw 1542 Gua

Citation : 2021 Latest Caselaw 1542 Gua
Judgement Date : 6 May, 2021

Gauhati High Court

Abdul Hoque vs The State Of Assam on 6 May, 2021

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GAHC010072642021




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

                                  Case No. : AB/1166/2021

            ABDUL HOQUE
            S/O LATE ABDUL RAHMAN, VILL-PACHIM BILASHPUR, P.S.-DHALIGAON,
            DIST-CHIRANG, BTR (ASSAM), PIN-783384


            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR. A M AHMED

Advocate for the Respondent : PP, ASSAM




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                          ORDER

Date : 06-05-2021

Because of Covid Pandemic situation, the Court proceedings are conducted through Video Conferencing.

2. Heard Mr. A. M. Ahmed, learned counsel for the petitioner. Also heard Mr. N. K. Kalita, learned Additional Public Prosecutor for the State of Assam.

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3. This application under Section 438 Cr.P.C., has been filed by the petitioner, namely, Abdul Hoque, apprehending arrest in connection with Dhaligaon P.S. Case No. 83/2021 under Sections 379/411/34 of IPC read with Section 7 of the Essential Commodities Act, 1955 and read with Section 23 of Petroleum Act, 1934.

4. The learned counsel for the petitioner submits that the petitioner is a cultivator and businessman. He is apprehending arrest, in view of the allegations made in the FIR dated 24.03.2021 which is registered as Case No. 83/2021 under Sections 379/411/34 of IPC. In the said FIR, the allegations are made that the petitioner along with another person, namely, Atowar Hossain were suspected to have indulged in stealing and smuggling of petroleum and diesel products. During the search conducted in the house, following materials were recovered:-

1. 5(five) nos. of Blue colour plastic containers containing suspected petroleum product.

2. 1(one) Nos. of Yellow colour plastic container containing suspected petroleum product.

3. 1(one) Nos. of Gray colour plastic container containing suspected petroleum product.

4. 1(one) oil measuring cane (conical shape).

5. The learned counsel for the petitioner submits that the petitioner is a cultivator and agriculturist and for that purpose he stores small quantities of diesel to run his agricultural Page No.# 3/5

machinery used in cultivation. The learned counsel for the petitioner submits that in view of absence of registered petrol/diesel dealers within the close vicinity of the village Pachim Bilashpur, the petitioner and other similarly situated cultivators used to store small quantities of diesel for the purpose of running their machinery like Tractors etc during cultivation.

6. The matter has been fixed today for bail hearing and the learned Additional Public Prosecutor has produced the case diary connected to the said case. The case diary has been perused. The allegation with regard to offences committed under Section 7 of the Essential Commodities Act, 1955 and Section 23 of Petroleum Act, 1934 have already been dealt with by the Co-ordinate Bench and a Division Bench of this

Court in their Judgment and Order dated 31 st May, 2004 in B.A. No. 1152/2004 (Kailash Kumar Agarwalla Vs. State of Assam) and AB No. 1205/2017 decided on 27.11.2017 (Jayanta Kr. Das Vs. State of Assam) whereby both the sections have been held to be bailable. Insofar as Section 379 is concerned, it is seen that the ingredients of Section 378 are not made out inasmuch as there is no complaint or allegation made against the petitioner that he has dishonestly taken any movable property out of possession of any person without that person's consent. There is no material to suggest that the petroleum product and/or diesel found stored in his house have been taken out of possession some other person without Page No.# 4/5

that person's consent.

7. In his statement, the petitioner all along stated that that he has purchased diesel himself and had kept for use of his agricultural machinery. No other incriminating material is seen in the case diary. Although, charge-sheet has not been filed yet, considering the stage of investigation there appears to be no necessity for custodial detention of the petitioner.

8. Under the circumstances, upon hearing the learned counsel for the parties and upon perusal of the materials available on record, this bail petition is allowed. In the event of arrest of petitioner in connection with Dhaligaon P.S. Case No. 83/2021 under Sections 379/411/34 of IPC read with Section 7 of the Essential Commodities Act, 1955 and read with Section 23 of Petroleum Act, 1934, he shall be released upon furnishing a bail bond of Rs.20,000/- (Twenty Thousand only) with one local surety to the satisfaction of the Arresting Authority. The anticipatory bail granted shall, however, be subject to the following conditions:-

1. The petitioner shall make himself available before the investigating officer as and when his presence is required for the purpose of further investigation of the case and shall cooperate with the investigation;

2. The petitioner shall not hamper with the investigation or tamper with the evidence of the case;

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3. The petitioner 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; and

4. That the petitioners shall not leave the territorial jurisdiction of the Dhaligaon Police Station, without obtaining prior written permission from the concerned Investigating Officer of the case.

9. If any of the conditions are found to be violated then the Investigating Officer shall be at liberty to seek cancellation of the bail granted to the petitioner.