Mokbul Hussain vs The State Of Assam
2022 Latest Caselaw 1325 Gua

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GAHC010032852022




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

                                Case No. : Bail Appln./394/2022

            MOKBUL HUSSAIN
            S/O LATE GOLAM ROSUL
            VILL- KHORIDAGOSSAIGAON
            P.S. CHAPAR
            DIST. DHUBRI, ASSAM



            VERSUS

            THE STATE OF ASSAM
            TO BE REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR. A AHMED

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                  HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                           ORDER

21.04.2022 Heard Shri A. Ahmed, learned counsel for the petitioner, namely, Mokbul Hussain, who has filed this application under Section 439 CrPC seeking regular bail in connection with Special Case No. 07/2021 arising out of Chapar PS Case No. 25/2021 registered under Section 22(C) of NDPS Act, 1985. Also heard Ms. SH Borah, learned Additional Public Prosecutor, Assam.

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2. The petitioner was arrested on 15.02.2021.

3. In terms of the order passed earlier, the scanned copy of the case records has been transmitted to this Court.

4. Shri Ahmed, the learned counsel for the petitioner makes the following submissions-

i. The petitioner is not an FIR named accused and the FIR is primarily against Sainul Hoque and Najor Ali

ii. Contraband and incriminating materials including Mobile Handset was seized from the possession of the named accused Sainul Hoque, who on interrogation disclosed the complicity of Najor Ali. Petitioner was not connected with these allegations.

iii. Recovery of contraband substance was also made from the courtyard of Najor Ali, which was put in a plastic bag under the ground, who was accordingly arrested.

iv. No contraband was seized from the petitioner or from his conscious possession.

v. The forwarding report dated 15.02.2021 discloses that the arrest of the petitioner was only on the basis of a statement made by previously arrested accused Najor Ali.

vi. The petitioner was found loitering in the locality with involvement of smuggling drugs.

vii. Forwarding report further discloses that as per statement of the previously arrested accused Najor Ali, the seized drugs were collected and captured in the house of accused.

5. Shri Ahmed, the learned counsel for the petitioner submits that as far as seizure from the house of the accused is concerned, the accused meant Najor Ali and not the petitioner and on this point this Court had sought the response of the learned APP, Assam, who fairly submitted that the recovery was confined to the houses / premises of the named accused Sainul Hoque and Najor Ali. As a consequence thereof, it is submitted that the only basis for his arrest and subsequent detention is a statement made by a previously arrested accused Najor Ali.

6. Shri Ahmed, the learned counsel for the petitioner submits that arrest and subsequent Page No.# 3/8

detention only on the statement of a co-accused is unsustainable in law and therefore the present is a fit case for releasing the petitioner on bail. It is submitted that the petitioner has completed about one year and two months in custody and therefore, there is no requirement of any further custodial detention.

7. In support his submissions, the learned counsel has placed reliance upon the following case laws-

i. Petition for Special Leave to Appeal (Crl.) No. 242/2022 {State by (NCB) Bengaluru Vs. Pallulabid Ahmed Arimdutta & Anr};

ii. Petition for Special Leave to Appeal (Crl.) Appeal No. 5703/2021 (Bharat Chaudhary Vs. Union of India);

iii. AB No. 3678/2021 (Bitupon Kalita Vs. the State of Assam);

iv. BA No. 2356/2021 {Khalil Uddin Vs. Union of India (NCB)};

v. BA No. 126/2021 (Ahadul Hussain and Anr Vs. the State of Assam);

vi. BA No. 1464/2019 (Nurezzaman Islam @ Nurajjaman Vs. The State of Assam);

vii. BA No. 1636/2020 (Ashik Ahmed Mondal @ Larju Vs. the State of Assam);

viii. Criminal Appeal No. 714/2019 reported in 2019 (16) SCC 547 (Dipakbhai Jagadishchandra Patel Vs. the State of Gujarat and Anr.);

ix. Criminal Appeal No. 1043/2021 reported in (2021) 10 SCC 100 (Union of India through Narcotics Control Bureau, Lucknow Vs. Md. Nawaz Khan).

8. In the case of Pallulabid Ahmed Arimdutta (Supra), the Hon'ble Supreme Court has held that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in a trial of an offence under the said Act and therefore, arrest made on the basis of such confession cannot form the basis of overturning the orders releasing them on bail. The application filed by the NCB for seeking cancellation of bail was accordingly Page No.# 4/8

dismissed. It may be mentioned that the quantity was not commercial in this case.

9. In the case of Bharat Chaudhary (Supra), the Hon'ble Supreme Court after referring to the case of Tofan Singh Vs. State of Madras reported in (2021) 4 SCC 1 has held that detaining a person only on the basis of her statement made by a co-accused is too tenuous.

10. In the case of Bitupon Kalita (Supra), this Court has held that no contraband article was recovered from the possession of the petitioner and he was implicated by a co-accused. However, bail was granted on the basis of the judgments in Bharat Choudhury (Supra) and Tofan Singh (Supra). In the case of Khalil Uddin (Supra), this Court took a similar view.

11. In the case of Ahadul Hussain (Supra), this Court had discussed the impact of Section 25 of the Evidence Act by stating that the NDSP Act does not contain any provision which overrides Section 25 of the Evidence Act.

12. In the case of Nurezzaman Islam (Supra), interference was made with an order of arrest only on the basis of a statement of a co-accused and no contraband was recovered from the possession of the petitioner.

13. In the case of Ashik Ahmed Mondal (Supra), the Hon'ble Supreme Court has held that if on the basis of the materials on record the Court is satisfied that on all probabilities, the accused may not ultimately be convicted, the order of granting bail may be considered.

14. In the case of Dipakbhai Jagadishchandra Patel (Supra), the Hon'ble Supreme Court has held that to come to a finding of conviction, strong suspicion must be founded on some materials which are to be translated into evidence at the time of trial. The said case perhaps would not have much of relevance in the present case.

15. On the other hand, Ms. SH Bora, the learned APP submits that the petitioner is under a duty to make out a case for grant of bail based on the facts and circumstances and the concept of precedent in criminal cases except for a point of law may not be to that degree as in civil case. She submits that that the trail is at an early stage and releasing the petitioner on bail at this stage may jeopardize the proceeding. The further relevant consideration is that Page No.# 5/8

the quantity involved is commercial quantity for which a strict approach needs to be adopted while considering the bail of an accused. She further submits that offence under this Act is organized one wherein a number of persons involved and seizure / recovery from each of them may not be there.

16. In support of her submission, the learned APP relied upon the cases of Satpal Singh Vs. State of Punjab reported in (2018) 13 SCC 813 and Union of India (NCB) Vs. Md. Nawaz Khan reported in (2021) 10 SCC 100.

17. In the case of Satpal Singh (Supra), the Hon'ble Supreme Court reiterated that the rigors of granting bail under the NDPS Act should be strictly followed and the conditions laid down under Section 37 of the Act are to be mandatorily followed.

18. In the case of Md. Nawaz Khan (Supra), the Hon'ble Supreme Court by referring to various earlier judgments had laid down that a finding of absence of possession of contraband on the person does not necessarily absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.

19. In his reply, the learned counsel for the petitioner submits that in the case of Md. Nawaz Khan (Supra), the Hon'ble Supreme Court in paragraphs 26 and 30 took into consideration certain other relevant factors including CDR analysis and also the fact that the quantity involved is a commercial one.

20. The submissions made by the rival parties have been carefully considered and the scanned copy of the case records perused. It appears that the thrust of the argument made on behalf of the petitioner in support of the prayer for bail is that the arrest and detention has been made solely on the basis of a statement of the co-accused and nothing else and therefore, by relying on the cases of the Hon'ble Supreme Court, the petitioner has prayed for bail. Further, no recovery, whatsoever, has been made from the petitioner.

21. Prima facie, it appears that in the FIR, the petitioner has not been named and from the Forwarding Report, one would come to learn that it is only on the basis of the statement by a co-accused Najor Ali that the petitioner has been arrested.

22. The offence involved in this case is one under the NDPS Act and the quantity involved Page No.# 6/8

is a commercial quantity. The contraband involved is also chemical manufactured drugs. To be more specific, the FIR itself reveals that the following recovery has been made-

      i.        200 Nos. of suspected Nitrazen Tablets.

      ii.       288 Nos. of Spsphen + Capsules

      iii.     14400 Nos. of suspected Nitrapam Tablets IP.

23. This Court finds force in the submission of the learned APP that offences under the NDPS Act are part of an organized crime wherein difference roles are played by different accused persons. Therefore, recovery or seizure cannot be held to be a sine qua non for the arrest / detention or even for conviction if there are other convincing materials. Therefore, this Court is unable to accept the plea that since no recovery was made from the petitioner, his involvement can be ruled out.

24. What is left now is the issue of the arrest being based on the statement of the co- accused Najor Ali. At this stage, it is to be kept in mind that it is only the question of grant of bail which is the subject matter of the petition and this Court is not required to go to the aspect as to whether conviction on the sole testimony of a co-accused is sustainable.

25. To resolve the aforesaid issue, one may gainfully refer to the relevant provision of law, namely, Section 133 of the Indian Evidence Act, which reads as follows-

"133. Accomplice.

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."

26. Since, the aforesaid aspect also finds mention by way of an illustration to Section 114 of the said Act, to come to a correct finding the same is also required to be consideration which is extracted hereinbelow-

"114. Court may presume existence of certain facts.

The court may presume the existence of any fact which it things likely to have happened regard being had to the common course of natural events human conduct and public and private business, in their relation to the Page No.# 7/8

facts of the particular case.

Illustrations

The Court may presume-

(a) ...

(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars."

27. A conjoint reading of the aforesaid provisions would lead to a conclusion that though a statement of an accomplice can be relied upon for the purpose of conviction of a co-accused, such statement is necessarily required to be corroborated with other relevant materials.

28. The above provision of law and the discussion made are in the context of coming to a finding of conviction which is at a much later stage. However, in the instant case, that stage has not even come and the trial is at a very initial stage. Further, this Court is of the view that if an arrest and detention is not permissible on the basis of a statement of a co-accused, no investigation would be possible at all leading to a situation of anarchy and lawlessness.

29. Further, this Court is of the view that it is a settled position of law that in a case involving the NDPS Act, though the length of detention may be a relevant factor, the same shall not be the sole factor for determining a bail application and various other factors are taken into consideration like the quantity of the contraband, nature of the substance, nature of involvement etc. In the present case, the contraband is a commercial quantity and the substance is chemically manufactured drug. Moreover, Section 37 of the NDPS Act lays down that before granting a bail, the relevant factors are that the Court should come to a satisfaction that prima facie the petitioner is not guilty of the offence and also the petitioner has to satisfy the Court that in case bail is granted, he is not likely to commit further offence. The aforesaid two factors do not seem to be fulfilled in the present case.

30. In that view of the matter and also taking into consideration the very object of the enactment, namely to curb the menace of drugs and its ill effects on the society which has the propensity to destroy the generation as a whole, this Court is of the opinion that no case for grant of bail is made out at this stage. Accordingly, the same stands rejected.

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31. It is however clarified that the observation made are tentative in nature and shall not cause prejudice to either of the parties in the trial.

JUDGE

Comparing Assistant