Raju Ali vs The State Of Assam
2021 Latest Caselaw 2357 Gua

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GAHC010139822021




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

                               Case No. : Bail Appln./2202/2021

            RAJU ALI
            SON OF DULAL ALI
            R/O KATABARI, HOUSE NO. 280,
            WARD NO. 6, P.S. FATASIL AMBARI
            DIST. KAMRUP (METRO), ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR N AHMED

Advocate for the Respondent : PP, ASSAM




                                     BEFORE
                    HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

                                          ORDER

Date : 29-09-2021

Heard Mr. N Ahmed, learned counsel for the petitioner. Also heard Mr. DP Goswami, learned Additional Public Prosecutor, appearing for the State respondent.

This is an application, filed under Section 439 of the Cr.PC. seeking bail of Page No.# 2/8

the accused-petitioner, namely, Raju Ali, in connection with Special NDPS Trial No. 04/2021 registered under Sections 22(c)/29 of the NDPS Act (corresponding to Kokrajhar P.S. Case No. 185/2021), pending in the court of the learned Special Judge, Kokrajhar, Assam.

The fact of the case, as appears from the FIR is that on 15.03.2021 at about 8:00 am, as per the ECC related to the Assembly Election, SST(C) Statics Surveillance Team In-charge Dilip Narzary (Asstt. Engineer) along with his staff have reported at the Karigaon Patrol Post for checking at Karigaon JD Road. In this regard, while they (his staff and the Karigaon Police staff) were randomly conducting checking of the vehicles which were coming from Chirang side to Kokrajhar side. At around 8:35 am, a wagonR vehicle bearing registration No. AS-01-HC-9332 was duly stopped where there were two persons and a driver. The vehicle was stopped and checked on which many bags were found inside it. However, on opening the chain of the bags it could be seen that some portion of the bag is filled with some sports items like cricket bat, helmet, pads, etc and other clothes. But, on going through all the bags and luggage, nine brown packets suspected to be money bundle were seen inside the bag wrapped with the cello tape, which they were trying to conceal. The packets were torn on which suspected ganja was recovered. The aforesaid Dilip Narzary informed the station in-charge of the Patrol Post, on which I/C Karigaon Patrol Post along with few more senior officers had arrived at the place of occurrence and had duly seized the ganja following all procedures related to the Narcotic Substance case. The ganja was weighed, sealed and packed in presence of said Dilip Narzary which weighted 44kgs 100 grams. The accused persons were apprehended and seizure was made with reference to Karigaon PP GDE No. 312, dated 15.03.2021.

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The learned counsel for the petitioner has submitted that the petitioner was the driver of the vehicle, involved in the case, and there were two other passengers in the said vehicle who had carried the suspected contraband/ganja.

As per the status report of the case, as collected from the jurisdictional Special Judge, the accused-petitioner is in custody since 16.03.2021 and the charge-sheet in the instant case was laid on 15.07.2021. Charge in the instant case was framed on 10.09.2021, under Sections 22(c)/29 of the NDPS Act. Summon has been issued to the witnesses. The case was fixed for recording evidence on 24.09.2021.

The status report clearly shows that the investigation of the case is completed within the statutory period prescribed, i.e., 180 (one eighty) days and the case is presently pending at the stage of evidence of the witnesses. There is no record before this Court to indicate whether on 24.09.2021 any witness has been examined or not.

The scanned copy of the case dairy has been received and perused by this Court.

The materials in the case diary clearly indicate that the contraband/ganja seized in connection with this case was brought from Agartala and was to be dispatched to Bihar. The other accused persons had contact with the driver/present petitioner prior to their arrival at Guwahati bus stand and thereafter went to Kokrajhar and were caught there with the vehicle.

The learned counsel for the petitioner has submitted that the petitioner was only a driver and he did not have any knowledge that the other accused persons had brought contraband/ganja in the vehicle which was seized by the Investigating Agency.

The learned counsel for the petitioner has also referred to an order of this Page No.# 4/8

Court, dated 22.06.2021, passed in Bail Application No. 862/2021 and has submitted that vide the said order, the driver of the auto rickshaw in which contraband was carried was granted bail. He has specifically referred to para 8 of the said order. For convenience of appreciation, this Court would like to quote aforesaid para 8.

"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."

Although an interpretation of the said para is not called for in this application, yet to appreciate the submission made by the learned counsel for the petitioner, with reference to the fact of the said case as well as the case at hand, this Court would like to reiterate the background fact as emerged from the note of the Investigating Officer in that application.

It has come out from the materials in the scanned copy of the case diary that the accused-petitioner was the driver of the vehicle, involved in this case, and the other two accused persons went to Kokrajhar in the said vehicle with the contraband/ganja which weighed 44kgs 100 grams.

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This Court has taken note of the fact that this is a 2 nd application for bail of the petitioner as referred to in para 14 of the instant petition.

Whatever it may be, with reference to para 8 of the aforesaid Bail Application No. 862/2021, quoted above, this Court had also taken into account the statement made in para 7 of the said application and thereafter only enlarged the accused on bail, who was a driver and arrested for transporting contraband in his auto rickshaw, after submission of the charge-sheet.

In the instant case, the contraband/ganja was recovered in the vehicle driven by the present petitioner, and as submitted the other two accused persons were passengers.

The learned counsel for the petitioner has put emphasized on the fact that vide the order passed by this Court in the bail applications, referred to above, the driver of the auto rickshaw in which the contraband was carried were granted bail and therefore, the present petitioner, being similarly situated be also granted bail.

From the order passed in the aforesaid bail application, it has been clear that the driver of the auto rickshaw was not caught in his auto rickshaw and rather he was caught by the Investigating Agency near Hazi Musafir Khana. It has also been indicated in the said order that the person who had carried the contraband/ganja in the aforesaid auto rickshaw had fled away and such submission was found to have some force in view of the note of the Investigating Police Officer given in the case diary of that case to the effect that the accused-petitioner was "caught and the person who has fled away from the place of occurrence was about to take the bag containing the contraband". But, the fact in the instant case is not at all same as noted by the Investigating Police Officer in the case diary of the aforesaid case and Page No.# 6/8

reflected in para 8 of the said order.

The learned counsel for the petitioner has also 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 29.10.2020, as indicated by this Court in the aforesaid order, dated 22.06.2021 and submitted that the said decision is applicable in the instant case also, and therefore, the accused-petitioner is entitled to the grant of bail.

It has further been submitted by the learned counsel for the petitioner that there is no recovery made from the accused-petitioner and rather it was from the other two accused persons who were the passengers of the vehicle, involved in this case.

However, this Court has considered the recent decision of the Hon'ble Supreme Court of India in Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan (Criminal Appeal No. 1043/2021 arising out of SLP (Crl.) No. 1771/2021), dated 22.09.2021.

For proper appreciation, this Court would like to quote paras 24, 25 and 26 of the said judgment:-

"24. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik, a two-judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the 'possession' of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non- application of mind by the High Court.

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25. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.

26. With regard to the statement under Section 67 of the NDPS Act, the High Court has placed abundant reliance on the inclusion of Mohd. Arif Khan's name in place of the respondent's name in the endorsement of translation on the statement of the respondent. In Tofan Singh (supra), a three judge Bench of this Court held that a statement under Section 67 of the NDPS Act is inadmissible. The ASG submitted that independent of the statement, there are valid reasons to deny bail on the basis of the material which has emerged at this stage.

It appears from the above that recovery of the contraband from the possession of the petitioner or the observation recording the finding on the possession of the contraband does not fulfill the parameters of Section 37(1)(b) of the NDPS Act. It is further asserted by the Hon'ble Supreme Court vide para 25, referred to above, that finding of the absence of possession of the contraband on the person of the respondent in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.

This Court is unable to record its satisfaction that the accused-petitioner shall not repeat the offence alleged, if enlarged on bail or that he did not commit the offence. This Court has also taken note of the fact that the case has been posted for recording of evidence, and in fact 24.09.2021 was fixed for the said purpose, meaning thereby, that trial has begun with the charge framed Page No.# 8/8

against the accused persons, including the petitioner.

In view of the above, the prayer for bail of the accused-petitioner stands rejected, at this stage.

The petition stands disposed of accordingly.

JUDGE

Comparing Assistant