Gauhati High Court
Moinul Hoque vs The State Of Assam on 3 September, 2021
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GAHC010117202021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1861/2021
MOINUL HOQUE
S/O JALIL UDDIN
VILL- KEOTKUCHI, P.S. BARPETA
DIST. BARPETA, ASSAM
PIN CODE- 781309
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. A MANNAF
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
03.09.2021
Heard Mr. A. Mannaf, learned counsel for the accused-petitioner and Mr. B.B.
Gogoi, learned Addl. Public Prosecutor for the State.
2. This bail application has been preferred by the accused-petitioner, namely,
Moinul Hoque, who has been arrested and is in jail since 19.01.2021. The
accused-petitioner was arrested in connection with Barpeta P.S. Case No.
133/2021 under Section 22(b)(c) of the NDPS Act.
3. An FIR dated 19.01.2021 was filed by the informant- Bakul Engte of
Barpeta Police Station alleging that during a search operation in the house of
the accused-petitioner, 26 nos of 100 ml Coterex Cough Syrup and 78 nos. of
100ml Cossex Cough Syrup were seized in the presence of witnesses as per
procedure of NDPS. It is also stated in the FIR that the accused-petitioner after
being interrogated was found to be doing illegal business in Barpeta district by
selling cough syrup without prescription from Physician. The bail petition filed
before the Special Judge, Barpeta was rejected vide the order dated 19.07.2021.
4. The scanned copies of the case diary along with the status report of
Special Case No. 31/2021 from the Court of Special Judge, Barpeta, as called
for, have been received and placed before the Court by the Registry.
5. The learned counsel for the accused-petitioner submits that the petitioner
is an employed under a distributor of medicines. He submits that the cough
syrup bottles, which were seized, were required to be delivered to the
customers of the distributor under whom he is employed. The learned counsel
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for the accused-petitioner, however, has not been able to produce any
supporting documents to support his contentions that the accused-person has
been employed under a distributor of medicines from whom the seized
substances were procured for delivery.
6. Upon perusal of the papers called for from the Special Judge, Barpeta, it
is seen that vide order dated 12.08.2021, Charge under one head under Section
22(c) of the NPDS Act has been framed. It is also seen from the status report
that the matter is at the evidence stage but due to present COVID-19 pandemic
situation recording of evidences have not yet started.
7. The papers called for from the Special Judge, Barpeta reveal that the
Cough Syrup bottles in question were seized from the residence of the accused-
petitioner in presence of 3(three) witnesses, whose statements are also
available in the scanned copies of the case diary. In the charge-sheet, it is
stated by the Investigating Officer that in the course of preliminary enquiry it is
found that the accused-person was doing illegal businesses in the Barpeta
District since long. Perusal of the case diary also does not reveal that the
accused-petitioner has submitted any documents to support his
statement/contention that he was in employment of any distributorship
firm/company as submitted by the learned counsel for the accused-petitioner.
8. Section 37 of the NDPS Act mandates the conditions under which any
person can be released on bail. It is provided in Section 37 of the NDPS Act that
before a person accused of offence under Section 19 or Section 24 or Section
27A is concerned, there must be reasonable grounds for believing that he is not
guilty of such offence and that he is likely to commit any offence while on bail.
It is also seen that the seized quantity of Cough Syrup, namely, 26 nos. of
Coterex Cough Syrup containing 100 ml in each bottle and 78 bottles of Cossex
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Cough Syrup containing 100 ml in each bottle have been found positive for
Codeine phosphate in the report of the Directorate of Forensic Science, Assam.
9. As per the notification dated 19 th October, 2001 issued by the Central
Government specifying the small quantity and commercial quantity in respect of
NDPS Act. In so far as Codeine is concerned, which is shown at Serial No. 28 of
the notification, the "small quantity" is shown as 10 grams and "commercial
quantity" is shown as 1 KG. The total bottles of Cough Syrup containing
psychotropic substances weigh more than 1 KG. The jurisdiction of the Court to
grant bail is limited by the provisions of Section 37 of the NDPS Act which is the
mandate of the statute and the same is required is to be followed. It can be
granted only if there are reasonable grounds for believing that the accused is
not guilty of such offence. What is "reasonable grounds" has been very
succinctly enunciated in the Judgment of the Apex Court rendered in State of
Kerala and Ors. Vs. Rajesh and Ors., reported in (2020) 12 SCC 122. The Apex
Court in this Judgment held that 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 offence alleged.
10. As discussed above, the submission of the learned counsel for the
accused-petitioner that the accused-petitioner was in the employment of a
distributor and that he was required to deliver the goods seized, to the
customers as directed by his employer, is not substantiated by any such
documents. The materials available in the case diary has revealed otherwise.
The case diary suggests that the petitioner has been involved in trade since
long.
11. Considering all above and also in view of the fact that the charge-sheet
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in the matter has already been filed and as per the status report of the Special
Judge, Barpeta that the matter is at the evidence stage, this Court is of the view
that the petitioner has not been able to justify his release on bail prayed for.
12. Accordingly, the prayer for bail is rejected and accordingly dismissed.
However, as per latest notification issued by the Registry of the Gauhati High
Court permitting resumption of physical hearings, the Special Judge, Barpeta
will proceed with the trial of the matter as expeditiously as possible.
JUDGE
Comparing Assistant
