Md Mokbul Hussain vs The State Of Assam
2022 Latest Caselaw 4315 Gua

                                                                 Page No.# 1/6

GAHC010190732022




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

                         Case No. : Bail Appln./2367/2022



         MD MOKBUL HUSSAIN
         SON OF LATE MAZIBAR RAHMAN
         R/O GAURIPUR
         WARD NO. 4
         PS. GAURIPUR
         DIST. DHUBRI
         ASSAM


          VERSUS

         THE STATE OF ASSAM
         REP. BY THE PP
         ASSAM


         ------------
         Advocate for : MR. M AHMED
         Advocate for : PP
         ASSAM appearing for THE STATE OF ASSAM



                                    BEFORE
                   HON'BLE MR. JUSTICE ROBIN PHUKAN

                               ORDER

07.11.2022

Heard Mr. H.R.A. Chaudhury, learned senior counsel assisted by Mr. M.A.

Page No.# 2/6

Sheikh, learned counsel for the accused and also heard Mr. B.B. Gogoi, learned Addl. P.P.

2. This application, under Section 439 of Cr.P.C., is preferred by accused, namely- Mokbul Hussain, who has been languishing in jail hazoot in connection with Gauripur P.S. Case No. 306/2022 under section 22(C) of the NDPS Act, since 20.07.2022.

3. The said case has been registered on the basis of one FIR lodged by S.I. Kapil Ch. Das, of Gauripur P.S. on 05.07.2021, to the effect that on the same day, acting on a tip off they have apprehended one Pranab Chakravarty from his residence at Balajn PT-I and recovered from his possession (i) 917 numbers of Pyeevon Spas Plus Capsul and (ii) Caffenx Cough Syrup 21 Bottles and seized the same preparing seizure list in presence of witnesses. During interrogation said person reveals that one Bakkar of Chourangeegimore procured the psychotropic substance and recovered the same in his house and distributed the same to small drug paddlers and one Opiol Dumardaha Pt-II and Zakir Hussain @ Napi regularly collects the same from Bakkar and Opiol had handed over the aforesaid psychotropic substance to him before two days back.

4. Mr. H.R.A. Chaudhury, learned senior counsel for the accused submits that the accused was arrested on 05.07.2022, and since then he has been languishing in jail hazoot. Mr. Chaudhury further submits that nothing has been recovered from the possession of the accused and except the statement of the co-accused there is no incriminating material against him, and therefore, it is contended to allow this petition. Mr. Chaudhury further submits that in similarly situated case, i.e. in AB No. 3678/2021, vide order dated 17.01.2022, this court Page No.# 3/6

relied upon a decision of Hon'ble Supreme Court in Bharat Chaudhury vs. Union of India Special leave to Appeal (Crl.) No. 5703 of 2021, and Tofan Singh vs. State of Madras reported in (2021) 4 SCC 1, has extended the privilege of pre-arrest bail to the applicant of said case. Mr. Chaudhury also referred another case of Hon'ble Supreme Court in Sanjeev Chandra Agarwal & Anr vs. Union of India Criminal Appeals No(s). 1273/2021, in support of his submission, and thereafter, contended to allow this petition.

5. On the other hand, Mr. B.B. Gogoi, the learned Addl. P.P. has vehemently opposed the petition and producing the Case Diary before this court he submits that there are sufficient materials to reveal the complicity of the applicant with the offence alleged in the FIR. Mr. Gogoi also referred to case of Hon'ble Supreme Court in Union of India (NCB) Etc. vs. Khalil Uddin Etc. reported in 2022 Livelaw (SC) 878, Mr. Gogoi submits that the situation has now changed and the courts cannot ignore the mandate of section 37 of the NDPS Act, and in the said case Hon'ble Supreme Court has set aside the bails granted by this court.

6. The concept and philosophy of bail was discussed by Hon'ble Supreme Court in several judgments. A distillation of plethora of precedents would reveal that conceptually, bail continues to be understood as a right for assertion of freedom against the State imposing restraints. Dictionary meaning denotes it as a security for appearance of a prisoner for his release. It is a conditional liberty. It must be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.

7. In the case of Prahlad Singh Bhati v. NCT, Delhi, reported in (2001) 4 Page No.# 4/6

SCC 280, Hon'ble Supreme Court has culled out the principles, which the courts has to consider at the time of granting or refusing bail as under:-

"The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

8. Keeping the above principles in mind, now an endeavour will be made to analyze the submissions of learned Advocates of both sides and also the facts and circumstances on the case record of learned court below. From a bare perusal of the record and the Case Diary I find the following:-

                 (i)               The FIR was registered on 05.07.2022 and the
                 accused was arrested on 20.07.2022.
                                                                            Page No.# 5/6

                  (ii)             The accused is behind the bar for more than
                  100 days.

                  (iii)           The investigation is still going on.

                  (iv)           The I.O. has not submitted charge sheet till date.

                  (v)              The I.O. has collected some materials against
                  the accused.

                  (vi)           He has been running one shop by taking a room

on rent from co-accused Abu Bakkar Siddique from whose house the I.O. has recovered 53 bottles of Coffex Cough Syrup,

9. But, at this stage there is no material before this court for believing that the accused is not guilty of offence under section 22(C) of NDPS Act. Nor there is any material to convince this court that similar offence is not likely to be committed by the accused if enlarged on bail. I have gone through the case law referred by the learned counsel for the accused and I afraid that the law laid down therein would come into the aid of the accused as the same is restricted to its own fact, and in view of the law laid down in the case of Khalil Uddin Etc.(supra), where it has been held that the mandate of section 37 of the NDPS Act cannot be ignored.

10. Thus, having balanced the personal liberty of the accused with that of the greater interest of the society, this court is left unimpressed that this is a fit case to grant bail. Accordingly, the petition stands dismissed.

11. Return the case diary.

Page No.# 6/6

JUDGE

Comparing Assistant