Gauhati High Court
Rahela Parbin vs The State Of Assam on 25 May, 2023
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GAHC010074552023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1259/2023
RAHELA PARBIN
W/O RABIR HUSSAIN
R/O SOULMARI
P.S. BILASIPARA
DIST. DHUBRI, ASSAM
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. A AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
25.05.2023
Heard Mr. A. Ahmed, learned counsel for the accused petitioner as well as
Mr. B. Sarma, learned Addl. P.P., Assam for the State respondent.
2. By this petition under Section 439 Cr.P.C., the accused/petitioner, namely
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Rahela Parbin has prayed for grant of bail in connection Guwahati GRPS
Case No. 175/2022 u/s 22(c) of the NDPS Act, 1985.
3. The case diary as called for is placed before the Court.
4. Mr. A. Ahmed, learned counsel for the accused woman, submits that she
has been in judicial custody for 148 days and that she is falsely implicated in the
case. Mr. Ahmed further submits that the accused who works as a labourer was
supposed to travel by train to Naharlagun in search of work. But on her way,
she and others were stopped at Guwahati Railway station by the informant RPF
Sub-Inspector and thereafter, handed over only her to the GRP, on accusation of
having recovered narcotic drugs from her possession although nothing was
recovered. Mr. Ahmed emphatically submits that the body of the accused
woman was not searched in presence of a Magistrate or any Gazetted Officer as
required under the mandatory provision of Section 50 of the N.D.P.S. Act and as
such, the rigors of section 37 of the N.D.P.S. Act are not applicable in the instant
case. In support of his submission, Mr. Ahmed, learned counsel, also submits
that the mandatory provision of section 42 of the N.D.P.S. Act was not complied
in the instant case. Therefore, Mr. Ahmed submits that for noncompliance of the
aforesaid mandatory provisions of the N.D.P.S. Act, the accused petitioner is
entitled to be released on bail. In support of his submission Mr. Ahmed has
relied on (1) Order passed by the Hon'ble Orissa High Court in the case of
[email protected] Rajput Thakur Vs. State of Odisha in BLAPL No.2430/2021 (2)
Order passed by the Delhi High Court in Emeka Emmanuel Vs. The State in Bail
Appln. 1231/2022 (3) Order passed by the Hon'ble Supreme Court in Sarija
Banu alias Janarthani alias Janani and Anr. Vs. State Through Inspector of
Police, reported in (2004) 12 SCC 266
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5. Opposing the bail application, Mr. B. Sarma, learned Additional Public
Prosecutor, submits that the accused woman was caught red handed while
carrying 5940 Nos. Yaba tablets containing Methamphetamine and 10 grams of
heroin as per seizure memo and the F.S.L. report while travelling by train. Mr.
Sarma further submits that as per Notification, dated 11.04.2019 of the Ministry
of Finance (Department of Revenue) empowers the officers of the RPF, of the
rank of Assistant Sub-Inspector and above to exercise the powers and perform
the duties specified under section 42 within the areas of their respective
jurisdiction and also authorize them to exercise the powers conferred under
Section 67 of the N.D.P.S. Act. It has been submitted by Mr. Sarma that there
cannot be any dispute that commercial quantity of drugs was seized from the
exclusive personal possession of the accused petitioner and relying on an order,
dated 20.10.2022, passed by the High Court of Karnataka in Joswin Lobo Vs.
State of Karnataka in Criminal Petition No.6916/2021 with reference to the
judgment rendered by the Apex Court, reported in (2000) 9 SCC 549 [Supdt.,
Narcotics Control Bureau, Chennai v. R. Paulsamy ] that the provisions of section
37 of the N.D.P.S. Act cannot be judged in the matter regarding noncompliance
of the formalities during consideration of bail application. Mr. Sarma, learned
Additional Public Prosecutor, strenuously submits that as per the observation of
the Hon'ble Supreme Court, no bail can be granted solely for alleged non-
compliance of the provisions of the N.D.P.S. Act, which is to be tested during the
course of trial only. Therefore, Mr. Sarma submits that in view of the bar under
section 37 of the N.D.P.S. Act, the liberty of bail may not be granted to the
accused woman who is allegedly a drug trafficker.
6. The F.I.R. reveals the allegation of recovery and seizure of 5940 Nos. Yaba
tablets containing Methamphetamine and 10 grams of heroin while she was
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travelling in train No.15817 DN (SKHV to NHLN) Dony Polo Express.
7. It is noticed that the accused woman has been in judicial custody since
22.12.2022, that is, for 155 days.
8. It is further noticed that as per the F.S.L. report, the samples of seized
brown coloured powdery substance gave positive tests for heroin and the pink
coloured tablets gave positive tests for Methamphetamine.
9. A perusal of the case diary reveals that the accused woman was detected
having carried the seized suspected contraband by a joint team of RPF and
Guwahati GRPS under an RPF Sub-Inspector, while Dony Polo Express train
arrived at Guwahati Railway Station P.F. No. 1. The woman RPF personnel
conducted body search inside the rail coach whereupon, the accused woman
was brought to the RPF Post and after body search in presence of women RPF
personnel and others, a seizure list was prepared. It is further revealed that
thereafter, the said RPF Sub-Inspector handed over the accused woman along
with the seized articles to the Officer-in-Charge of GRPS, Guwahati and filed the
F.I.R.
10. It may be mentioned here that by a Notification, dated 11.04.2019, issued
by the Ministry of Finance (Department of Revenue), the Central Government
empowered the officers of the RPF, of the rank of Assistant Sub- Inspector and
above, to exercise the powers and perform the duties specified under Section 42
within the areas of their respective jurisdiction and also to exercise the powers
conferred upon them under Section 67 of the N.D.P.S. Act. In the instant case,
the Sub-Inspector of RPF, Guwahati Post detained the accused woman as per
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authority and got her searched by women RPF personnel in presence of other
witnesses initially in person instead of taking her to the nearest Gazetted Officer
or to the nearest Magistrate to conduct the search in person as per the
provisions of section 50 of the Act. Ex-facie, it is revealed that the procedural
safeguards under Section 50 of the N.D.P.S. Act was not complied with, but the
Sub-Inspector of RPF, Guwahati followed the general provisions relating to
searches provided in Section 100(3) Cr.P.C. Such search in person undertaken by
the RPF Sub-Inspector in the instant case is whether a valid or invalid search is
a matter to be decided by the learned trial Court during trial for the purpose of
conviction or acquittal of the charges, whatever. In this regard the observation
of the Karnataka High Court in Joswin Lobo (supra) is looked into as the
provision of Section 42 of the N.D.P.S. Act, which is a mandatory, provision, as
held in Sarija Banu (supra), was complied with.
11. The investigation into the instant case is being at the incomplete stage,
the principles followed in Emeka Emmanuel (supra) and Raghu (supra) cannot
be scrutinized for application. The evidence, oral and documentary, prima facie
reveals recovery and seizure of commercial quantity of contraband from the
exclusive and conscious possession of the accused women and as such, rigors
of section 37 of the N.D.P.S. Act are well applicable to the case.
12. For the above stated reasons, the bail application stands rejected.
As the accused has been in judicial custody, the investigating officer is
directed to expedite investigation.
Return the case diary.
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This disposes of the bail application.
JUDGE
Comparing Assistant
