Md Baser Sheikh vs The State Of Assam
2022 Latest Caselaw 4971 Gua

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GAHC010208652022




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

                               Case No. : Bail Appln./2634/2022

            MD BASER SHEIKH
            S/O MD. SALIM UDDIN SEIKH
            R/O TIAMARI PT.2,
            P.S. GAURIPUR IN THE DISTRICT OF DHUBRI, ASSAM



            VERSUS

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



Advocate for the Petitioner   : MR A W AMAN

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN
                                   ORDER

15.12.2022

Heard Mr. S. Das, learned counsel for the accused and also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent.

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2. This application, under Section 439 Cr.P.C., is preferred by accused Mr. Basir Sheikh, who has been languishing in jail hajoot in connection with Special Case No.317 of 2022, under Section 22 (c) NDPS Act, pending before the court of learned Special Judge, Dhubri, since 10.04.2022, for grant of bail.

3. The said case has been registered on the basis of an FIR lodged by S.I. Perminder Singh of Chagalia Police Out Post, on 09.04.2022, to the effect that on the same day, acting on a tip off, he has intercepted one car bearing Registration No. AS-01/LC-2403, at about 7.10 am and during checking of the vehicle he found 6 numbers of plastic container with white powder like substance, suspected to be brown sugar, weighing 19 grams and 23 bottles of Phensedyl Cough Syrup and also recovered a sum of Rs. 2,81,300/, which was kept concealed in the dickey and dash board of the car and he seized the same preparing seizure list.

4. Mr. S. Das, learned counsel for the accused submits that the case has already been charge sheeted and the accused has been charged under Section 22(c) of the NDPS Act, along with other co-accused, and the accused pleaded not guilty to the charge. Mr. Das further submits that the learned court below has, thereafter, examined as many as six witnesses and the evidence so brought on record failed to establish that the present accused is guilty of the offence. Mr. Das further submits that the accused is behind the bar for last 239 days, and considering the same it is contended to allow this petition. Mr. Das also referred following case laws in support of his submissions :-

(i) Union of India vs. Shivshankar Kesari, MANU/SC/7905/2007,

(ii) Union of India vs. Ratan Mallik, MANU/SC/0079/2009,

5. Per contra, Mr. R.J. Baruah, learned Additional Public Prosecutor has Page No.# 3/6

vehemently opposed the petition and submits that there is material to show that the contraband substances were recovered from the possession of the accused person and the same are of commercial quantity, and that the accused had failed to satisfy the two conditions of section 37 of the NDPS Act. Mr. Baruah further submits that this court is not entitled to appreciate evidence at this stage like a trial court and the case is at the last stage and enlarging the accused on bail at this stage will cause delay in disposal of the case, and therefore, it is contended to dismiss this petition.

6. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the scanned copy of the record received from the learned court below. Also, I have carefully gone through the case laws referred by Mr. Das, learned counsel for the accused.

7. There is no dispute that the contraband substances, so recovered from the possession of the accused, are of commercial quantity. And as such the embargo under section 37 of the NDPS Act will be applicable herein this case. Further, it appears from the record of the learned court below that the prosecution side has examined as many as six witnesses, out of eight witnesses, cited in the charge sheet. But, this court, while dealing with bail application is not entitled to appreciate the evidence like a trial court and the same has rightly been pointed out by the learned Addl. P.P. In the case of Mohit Agarwal (supra) Hon'ble Supreme Court has beautifully explained the same in paragraph No. 15, as under:-

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"15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail."

8. The same view is also expressed in the case laws (i) Shivshankar Kesari (supra) and (ii) Ratan Mallik (supra). In both these cases, it has been held that while considering an application for bail with reference to Section 37 of the Act, the Court is not called upon to record a finding that the accused person is not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such ground. But, the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

9. While keeping the principles, so laid down in the case of Mohit Agarwal (supra), Shivshankar Kesari (supra) and Ratan Mallik (supra) in mind, and as discussed herein above, an exercise is carried out to find out the availability of reasonable ground for believing that the accused is not guilty of the offences that he has been charged with, by examining the materials and the evidence on Page No.# 5/6

the record of the learned court below, for the limited purpose of releasing him on bail, and to ascertain that he is unlikely to commit an offence under the Act, while on bail, this Court is unable to derive its satisfaction that there exist any reasonable ground to show that the accused is not guilty of the offence and that he is unlikely to commit such offence while on bail. Though Mr. Das, the learned counsel for the accused, submitted that the evidence so brought on record, are not at all sufficient to reveal complicity of the accused with the offence charged, yet, this court is unable to record concurrence to the same. In view of the discussions, made herein above, the ratio laid down in the cases referred by him, would not come into his aid.

10. There is no dispute that the accused was arrested on 10.04.2022, and since then he has been languishing in jail hajot. But, in view of a decision of Hon'ble Supreme Court, in NCB vs. Mohit Agarwal, reported in [2022] 0 Supreme (SC) 619, the length of period of his custody or the fact that the charge sheet has been filed and the trial has commenced are by themselves are not consideration that can be treated as persuasive ground for granting relief to the accused under section 37 of the NDPS Act. This being the position, the submission of Mr. Das, the learned counsel for the accused, in respect of the period of detention as the ground for releasing the accused on bail, is devoid of any substance. It is well settled by Hon'ble Supreme Court in the case of Mohit Agarwal (supra) that liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

11. In view of the above and also in view of the embargo under Section 37 of Page No.# 6/6

the NDPS Act, this Court is of the view that it is not a fit case where the privilege of bail that can be extended to the accused.

12. Accordingly, the instant petition stands dismissed. However, the learned court below is directed to expedite the trial and complete the same within the earliest possible time, without being influenced by any of the observation made herein above, as the same is made only for the purpose of disposing of this bail application, not on the merit of the case. If necessary, the learned court below shall take recourse to the provision of section 309(1) Cr.P.C.

JUDGE

Comparing Assistant