Gauhati High Court
Mohammad Raqibuddin @ Raqibuddin vs The Union Of India on 1 March, 2023
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GAHC010198942022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2507/2022
MOHAMMAD RAQIBUDDIN @ RAQIBUDDIN
S/O MOHAMMAD SIRAJUDDIN
PERMANENT RESIDENT OF LILONG HAOREIDI MAKHA LEIKAI
P.O. LILONG
P.S. LILONG,
DIST. THOUBAL, MANIPUR, 795130
VERSUS
THE UNION OF INDIA
REP. BY THE STANDING COUNSEL, DIRECTOR OF REVENUE
INTELLIGENCE, GUWAHATI-05.
Advocate for the Petitioner : MR. J ABBAS
Advocate for the Respondent : SC, DRI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 01-03-2023
Heard Mr. J. Abbas, learned counsel for the petitioner. Also heard Mr.
S.C. Keyal, learned S.C. for the Directorate of Revenue Intelligence.
2. The petitioner, namely, Mohammad Raqibuddin @ Raqibuddin,
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who was arrested on 06.04.2022 in connection with D.R.I. Case No.
01/CL/NDPS/HEROIN/DRI/GZU/2022-23 under sections 8(c), 21, 22, 22(c),
23(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act for short), has prayed for regular bail under section 439 Cr.P.C. The
said case is being tried before the learned Court of Special Judge, Kamrup (M),
Guwahati.
3. The learned counsel for the petitioner has submitted that the
petitioner has been in custody for 329 days and there is no chance of an early
trial because Final Complaint was submitted on 30.11.2022 and out of 10 listed
witnesses, no witnesses have been examined so far.
4. The learned counsel for the petitioner has also submitted that
the petitioner was the driver of the vehicle in which drugs were seized and
therefore, he cannot be said to be in conscious possession of the contraband,
which was in possession of the passenger. In support of the said contention,
reliance has been placed on the case of Avtar Singh & Ors. v. State of Punjab,
2002 CrLJ 4330.
5. The learned standing counsel for the DRI has referred to the
objection filed in this case and has submitted that the prosecution has clearly
demonstrated that the petitioner was aware that he would be carrying the
contraband heroin in lieu of handsome extra money. The said contraband was
brought by the passenger of the vehicle with whom he had prior meeting of
mind. It is projected that although the said co-accused had a car for himself, he
boarded the vehicle of the petitioner only to complete the dealing in narcotic
drug, i.e. heroin. It has been submitted that as per the call dial record, the
petitioner was found to be in close contact with the co-accused carrying the
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contraband. Reliance is placed on the case of Nawaz Khan, (2022) 0
Supreme(SC) 508.
6. As per the scanned copy of the case records received from the
learned trial Court, it is observed that in the seizure list dated 05.04.2022,
807.18 grams of heroin were found stored in 65 soap cases, the value of which
is estimated at Rs.5,65,02,600/- (Rupees five crore sixty five lakh two thousand
six hundred only). Thus, there is no doubt that the seized contraband is of
commercial quantity.
7. In the case of Avtar Singh, the trial Court had acquitted the
appellant-accused, which was reversed by the High Court. In the said context, it
was observed by the Supreme Court of India as follows:-
"The High Court resorted to the presumption under Section 35 which relates to
culpable state of mind, without considering the aspect of possession. The trial
court invoked the presumption under S. 54 of the Act without addressing itself to
the question of possession. The approach of both the courts is erroneous in law.
Both the courts rested their conclusion on the fact that the accused failed to give
satisfactory explanation for travelling in the vehicle containing poppy husk at an
odd hour. But, the other relevant aspects pointed out above were neither adverted
to nor taken into account by the trial court and the High Court. Non application of
mind to the material factors has thus vitiated the judgment under appeal ."
8. In the present case, the trial is yet to be concluded.
Nonetheless, the prosecution has been able to prima facie satisfy the Court that
there are materials in the final complaint to suggest that the petitioner was in
conscious possession of huge quantity of contraband.
9. It would also be relevant to quote the provision of Section 436A
Cr.P.C., which is as follows:-
"436A. Maximum period for which an under trial prisoner can be
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detained.- Where a person has, during the period of investigation, inquiry or trial
under this Code of an offence under any law (not being an offence for which the
punishment of death has been specified as one of the punishments under that
law) undergone detention for a period extending up to one-half of the maximum
period of imprisonment specified for that offence under that law, he shall be
released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing, order the continued detention of such
person for a period longer than one-half of the said period or release him on bail
instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during
the period of investigation, inquiry or trial for more than the maximum period of
imprisonment provided for the said offence under that law.
Explanation.--In computing the period of detention under this section for
granting bail, the period of detention passed due to delay in proceeding caused by
the accused shall be excluded."
10. It would also be appropriate to refer to the decision of the
Supreme Court of India in the case of Satender Kumar Antil v. Central Bureau of
Investigation, AIR 2022 SC 3386, wherein it is provided that "Where the
undertrial accused is charged with an offence(s) under the Act punishable with
minimum imprisonment of ten years and a minimum fine of Rupees one lakh,
such an undertrial shall be released on bail if he has been in jail for not less
than five years provided he furnishes bail in the sum of Rupees one lakh with
two sureties for like amount."
11. In the present case, the petitioner is charged of committing
offence punishable under sections 8(c), 21, 22, 22(c), 23(c), 25 and 29 of the
NDPS Act. Under the said provisions, the punishment prescribed is not less than
10 years but which may extend to 20 years and shall also be liable to fine which
shall not be less than Rs.1.00 lakh but which may extend to Rs.2.00 lakh.
Therefore, following the ratio laid down in the case of Satender Kumar Antil
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(supra), as well as the provision of Section 436A Cr.P.C., the petitioner having
been incarcerated for a period of 329 days, has not become entitled to be
released on bail.
12. This application for bail is rejected.
13. Nothing contained in this order shall prejudice either side during
trial.
14. The Registry shall not issue any certified/uncertified copy of any
part of the scanned copy of the record received from the learned trial Court.
JUDGE
Comparing Assistant
