Nimai Singh vs The State Of Assam
2022 Latest Caselaw 1466 Gua

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GAHC010175482021




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

                              Case No. : Bail Appln./2939/2021

            NIMAI SINGH
            S/O- KUNJA BIHARI SINGH, R/O- PASCHIM NANDAPUR, P..S HOJAI, DIST.-
            HOJAI, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner       : MR. J I BORBHUIYA

Advocate for the Respondent : PP, ASSAM

BEFORE

Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI

Date of hearing : 29.04.2022 Date of Judgment : 06.05.2022 Judgment & Order

Heard Shri JI Borbhuiya, learned counsel for the petitioner, namely, Nimai Singh, who has filed this application under Section 439 CrPC seeking regular bail in connection with NDPS Case No. 50/2021 arising out of Dillai PS Case No. 27/2021 registered under Sections 20 (b) Page No.# 2/7

(ii)(c) / 29 of NDPS Act, 1985. Also heard Ms. SH Bora, learned Additional Public Prosecutor, Assam.

2. The petitioner was arrested on 28.06.2021.

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

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

i. The petitioner was not directly implicated in the FIR and his name had come up only on the basis of a statements made by co-accused Tonanbam Tasken Singh.

ii. As per the statements of the co-accused, only delivery of the contraband was supposed to be made to the petitioner which was actually not done. It is accordingly argued that the petitioner cannot be arrested and detained on apprehension.

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

iv. The petitioner has been arrested only on the basis of the statements made under Section 67 of the NDPS Act by co-accused Tonanbam Tasken Singh.

5. Shri Borbhuiya, the learned counsel for the petitioner submits that the petitioner has been in custody since 28.06.2021 and therefore, there is no requirement of any further custodial detention.

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

i. BA No. 198/2019 (Shashikant Prabhu Vs. the State of Maharashtra);

ii. BA No. 6782/2019 (Rajveer Singh Vs. Union of India );

iii. (2018) 8 SCC 271 (Surinder Kumar Khanna Vs. Intelligence Officer, Directorate of Revenue Intelligence);

iv. BA No. 102/2020 (Abdul Mohammed Shaikh Vs. Union of India);

v. Criminal Appeal No. 822/2020 (Sheesh Singh @ Mor Vs. State of Page No.# 3/7

Punjab);

vi. 2010 6 GLR 464 (Budhua Baruah Vs. State of Assam);

vii. CRM-M-39657 of 2020 (O&M) (Vikrant Singh Vs. State of Punjab).

7. In the case of Shashikant Prabhu (Supra), the Hon'ble Bombay High Court had laid down that statements of co-accused under Section 67 of the NDPS Act is not admissible in evidence. The said proposition is also laid down by the Hon'ble Supreme Court in the case of Surinder Kumar Khanna (Supra) and Seesh Singh (Supra).

8. In the case of Rajveer Singh (Supra), the Hon'ble Allahabad High Court considered the aspect of exclusive possession of the contraband and arresting on the spot. Non recovery of the contraband from the accused was also a consideration of the Hon'ble Bombay High Court in the case of Abdul Mohammad Shaikh (Supra).

9. In the case of Budhua Baruah (Supra), this Court has held that mere filing of charge sheet should not be a ground for rejecting the prayer of bail.

10. In the case of Vikrant Singh (Supra), the Hon'ble High Court of Punjab and Haryana has held that mere implication by co-accused may not be enough wherein no recovery was made from the accused, who was also not named in the FIR.

11. On the other hand, Ms. SH Bora, learned Additional Public Prosecutor, Assam 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 a civil case.

12. The learned APP, Assam submits that that the trial is at an early stage wherein only 2 out of 13 nos. of witnesses have been examined and releasing the petitioner on bail at this stage may jeopardize the proceeding. The further relevant consideration is that the quantity involved is a huge one consisting 20.67 KGs of Ganja falling within 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.

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13. 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 on the basis of a statement of the co-accused and nothing else and therefore, by relying on the cases of various Courts, the petitioner has prayed for bail. The issue of non- recovery from the petitioner has also been highlighted.

14. Prima facie, it appears that in the FIR, the petitioner has not been named initially and subsequently one would come to learn that it is only on the basis of the statements by co- accused that the petitioner has been arrested.

15. The offence involved in this case is one under the NDPS Act and the quantity involved is a commercial quantity. To be more specific, the FIR itself reveals that the following recovery has been made-

"Description of seized item:-

i. One 1109 truck bearing regd. No. AS 01 KC 9163 colour night Grey.

ii. 4 (four) nos. of Polythene packets containing 20.67 Kg Cannabis Ganja.

iii. One duplicate copy of RC for vehicle No. As 01 KC 9163.

iv. One duplicate copy of D/L in the name of Kh. Rajeshwar Singh S/O- Kh. Jogeswar Singh, Vill - Loitang Khunon Maning Leikai, P.O.- Mandripukhuri, Ps- Sekmai, Dist- Imphal West, mainupr Vide D/L No. MN- 0120160047947.

v. One duplicate copy of Voter ID in the name of Tonanbam Tasken.

vi. One duplicate copy of PAN Card in the name of T. Tasken Vide PAN No. JODPS1009M.

vii. One Jio mobile handset, IMEI number 9116511582322304, color black."

16. This Court finds force in the submission of the learned APP, Assam 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 Page No.# 5/7

arrest / detention or even for conviction if there are other convincing and corroborating 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.

17. What is left now is the issue of the arrest being based on the statement of the co- accused. 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.

18. 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-

"13. 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."

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

"14. 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 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."

20. 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, Page No.# 6/7

such statement is necessarily required to be corroborated with other relevant materials.

21. 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 leading to a situation of anarchy and lawlessness.

22. 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. 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.

23. At this stage, it would be gainful to refer the following decisions of the Hon'ble Supreme Court.

i. Satpal Singh Vs. State of Punjab reported in (2018) 13 SCC 813 and

ii. Union of India (NCB) Vs. Md. Nawaz Khan reported in (2021) 10 SCC

100.

24. 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.

25. 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.

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26. 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.

27. 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