Gauhati High Court
Page No.# 1/5 vs Union Of India on 20 October, 2022
Page No.# 1/5
GAHC010165102022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2044/2022
MD. IDOMEI AND ANR
S/O MD.KHAMBA,
VILL.- KEIBUNG MAYAI LEIKAI, KHEKMAN GRAM PANCHAYAT,
P.S.- THOUBAL,
DIST.- THOUBAL,
STATE- MANIPUR.
2: MD. NAWAZ KHAN
S/O LATE ZUMA KHAN
VILL.- KEIBUNG MATAI LEIKAI
KHEKMAN GRAM PANCHAYAT
P.S.- THOUBAL
DIST.- THOUBAL
STATE- MANIPUR
VERSUS
UNION OF INDIA
NARCOTICS CONTROL BUREAU.
REP. BY THE STANDING COUNCEL, NARCOTICS CONTROL BUREAU.
Advocate for the Petitioner : MR. N N B CHOUDHURY
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 20.10.2022
Heard Mr. N. N. B. Choudhury, learned counsel appearing for the accused
petitioners as well as Mr. S. C. Keyal, learned Standing counsel, NCB.
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By this petition under Section 439 Cr.P.C., the accused-petitioners, namely,
1. Md. Idomei, 2. Md. Nawaz Khan, have prayed for grant of bail in
connection with NCB Crime No.15/2022 (Basistha P.S. Case No.
151/2022) under Sections 21(C)/24/29 of the NDPS Act.
The scanned copy of the case record along with a status report, as called
for, is placed before the Court.
Mr. N. N. B. Choudhury, learned counsel appearing for the accused
petitioners, submits that the accused persons are under judicial custody since
01.02.2022 on a false accusation of having possessed 4.5 Kg of suspected
heroin and despite having completed the statutory period of detention. Mr.
Choudhury further submits that the aforesaid case was taken over by the
respondent/NCB and registered as N.C.B. Crime No. 15/2022 on 03.06.2022. It
has been submitted that the NCB Investigating Officer filed a petition on
26.07.2022 praying for extension of time for completion of investigation beyond
180 days under Section 36A(4) of the NDPS Act and to give permission for
investigation for another 60 days which is nonest in law. According to Mr.
Choudhury, as per Section 36A(4) of the NDPS Act only the Public Prosecutor is
empowered to file such a petition indicating progress of investigation, but it was
not done in the instant case. It has also been submitted that the Public
Prosecutor is appointed under Section 24 Cr.P.C., where concurrence is required
to be taken from the District Judge concerned. Therefore, grant of additional
period for extension of period to complete the investigation within 60 days that
too without notice to the accused persons was par se illegal. Concluding the
submission, Mr. Choudhury, learned counsel submits that the accused persons
are entitled to be released on default bail otherwise it amounts to violation of
Article 21 of the Constitution of India. Mr. Choudhury in support of his aforesaid
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submission relied on the ratio of judgment rendered in:-
1. Hitendra Vishnu Thakur and others etc., -vs- State of Maharashtra
and others, reported in 1994 Legal Eagle (SC) 577; and
2. Sanjay Kumar Kedia alias Sanjay Kedia -vs- Intelligence Officer, NCB
and another, reported in (2009) 17 SCC 631.
Opposing the bail application, Mr. S. C. Keyal, learned Standing Counsel,
NCB, submits that the NCB had taken over the instant case from police on
03.06.2022 when it was at a nascent stage of investigation and, as such, on
26.07.2022, a petition under Section 36A(4) of the NDPS Act was moved before
the learned Special Judge (NDPS Act), Kamrup (M), Guwahati, praying for
extension of period of investigation for another period of 60 days beyond the
normal period of 180 days to complete the investigation. Accordingly, after due
consideration and on being satisfied with the grounds, the learned Court by
order, dated 26.07.2022, allowed the petition. Mr. Keyal further submits that
after the aforesaid petition was duly vetted by the learned Special Public
Prosecutor of NCB, it was moved before the said Court. In this context, Mr.
Keyal relied on the judgment of the Hon'ble Supreme Court, dated 13.02.2019
in the State of Maharashtra -Vs- Surendra Pundlik Gadling & others (Crl. Appeal
No. 264/2019). Mr. Keyal, learned Standing Counsel, NCB submits that at the
time of filing the aforesaid petition under Section 36A(4) of the NDPS Act,
copies of the same for both the accused persons were submitted to the Court.
Mr. Keyal emphatically submits that the final complaint in the case was
submitted within the extended time period and, as such, the accused persons
are not entitled to be released on default bail as prayed and on the other hand,
they are not entitled to bail in view of the stringent bar in Section 37 of the
NDPS Act.
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This matter relates to recovery and seizure of 4.500 Kg of contraband
Morphine from a truck, bearing registration No.JH-19-A-5623 from the exclusive
and conscious joint possession of the present accused petitioners, on
31.01.2022, on NH No. 37, near Basistha Chariali, Guwahati, Assam.
The aforesaid quantum of seized contraband Morphine (4.500 Kg) is more
than the minimum commercial quantity of 250 grams specified in Serial No. 77
of the Govt. of India, Revenue Notification S.O. 1055(E), dated 19.10.2001.
Therefore, the statutory restrictions specified in Clause (b) of Sub-Section (1) of
Section 37 of the NDPS Act in addition to the limitations under the provisions of
Cr.P.C. are applicable to the accused petitioners.
The learned Special Judge (NDPS Act) -cum- Sessions Judge, Kamrup (M),
Guwahati, by order dated 26.07.2022, passed in NCB Crime No. 15/2022
allowed the aforesaid petition filed under Section 36A(4) of the NDPS Act, dated
26.07.2022.
The above order of the learned Special Judge (NDPS Act), Kamrup (M),
Guwahati, it is noticed, cited reasons, after hearing the Investigating Officer
through the learned Special Public Prosecutor, for allowing the petition
extending the period of investigation beyond 180 days for additional 60 days to
complete the investigation.
It is further noticed that the accused persons are under judicial custody
since 01.02.2022, that is, for 261 days and as per the report of the learned
Special Judge (NDPS Act), Kamrup (M), Guwahati, dated 05.09.2022, final
complaint is yet to be submitted although the learned Standing Counsel, NCB
submits that the final complaint has been submitted on 26.09.2022 during the
aforesaid extended period of 60 days beyond 180 days to complete the
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investigation.
In view of the above rival contentions and for the purpose of a just disposal of
the instant bail application, the Registry shall issue requisition for the following
documents:-
1. Legible scanned copy of the up-to-date order sheet of the Court in
NCB Crime No. 15/2022; and
2. Legible scanned copy of the complaint.
List this matter on 17.11.2022.
Let a copy of this order be forwarded to the learned Special Judge (NDPS
Act), Kamrup (M), Guwahati.
JUDGE
Comparing Assistant
