Gauhati High Court
Kamal Malakar vs Narcotics Control Bureau on 9 January, 2023
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GAHC010216102022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2812/2022
KAMAL MALAKAR
S/O LATE PARESH MALAKAR
R/O VILL- EAST KANISHAIL, P.O KANISHAIL, P.S. AND DIST. KARIMGANJ,
ASSAM, PIN-788711
VERSUS
NARCOTICS CONTROL BUREAU
REP. BY SC, NCB
Advocate for the Petitioner : MR H R CHOUDHURY
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
09.01.2023
Heard Mr. H.R. Choudhury, learned counsel for the accused and Mr. S.C.
Keyal, learned Standing Counsel, NCB.
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2. This application under Section 439 of the Code of Criminal Procedure,
1973, is preferred by accused, namely, Sri Kamal Malakar, who has been
languishing in jail hazot in connection with the NCB Crime No. 11/2022, under
section 8[C], read with sections 21[c]/29 of the NDPS Act, for granting bail.
3. The allegation made in the complaint is that on 09.05.2022, 303
numbers of cartons containing 30,279 bottles of Phensedyl, Codeine based
Cough Syrup, were recovered from one TATA Truck bearing registration No. AS-
01-CC-8187, and two persons, namely, Kamal Malakar and Suraj Das have been
arrested in connection with the same.
4. Mr. Choudhury, learned counsel for the accused submits that the
accused was arrested on 10.05.2022, and since then he has been languishing in
jail hazoot for last 234 days. Mr. Choudhury further submits that investigation of
the case has already been completed and final complaint has been lodged
against the accused and considering the period of detention, it is contended to
allow the accused to go on bail.
5. On the other hand Mr. Keyal, learned Standing Counsel, NCB has
opposed the petition and submits that within the stipulated time the final
complaint has been filed by the complainant on 03.11.2022 and the quantity of
contraband substance recovered from the possession of the accused is of
commercial quantity and as such, the bar of section 37 of the NDPS Act is
applicable herein this case and the accused has failed to satisfy the 2 conditions
mentioned in section 37 of the NDPS Act, and therefore, it is contended to
dismiss the petition.
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6. Having heard the submission of learned counsel for both the parties I
have carefully gone through the petition and the documents placed on record
and also perused the scanned copy of the final complaint and other documents
received from the learned court below.
7. It appears from the search-cum-seizure list, dated 09.05.2022, that
303 numbers of cartons containing 30,279 bottles of Phensedyl Codeine based
Cough Syrup was recovered from the possession of Kamal Malakar and Suraj
Das from the TATA Truck bearing registration No. AS-01-CC-8187 and the same
bears the signature of Kamal Malakar and Suraj Das.
8. Indisputably the quantity of contraband substance recovered from the
possession of the accused is of commercial quantity and as such, the rigors of
section 37 of the NDPS Act will come into play here in this case. And from the
documents placed on record and also from the submissions of the learned
counsel for the accused, this court is unable to derive its satisfaction that there
exist any reasonable ground for believing that the accused is not guilty of the
offence and that he will not commit similar offence while one bail. The offences
are serious in nature and the period of detention i.e. 234 days, cannot be a
ground to persuade this court to enlarge the accused on bail, in view of
judgment of the Hon'ble Supreme Court in the case of NCB vs. Mohit
Agarwal, reported in 2022 0 Supreme SC 619.
9. In view of above, this petition stands dismissed.
9. However, the learned court below is directed to expedite the trial and if
necessary to take recourse of the section 309[1] of the Cr.P.C.
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JUDGE
Comparing Assistant
