Gauhati High Court
Nanda Ray vs The State Of Assam on 28 June, 2024
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GAHC010040792024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./599/2024
NANDA RAY
S/O LT. JAGJIBAN RAY, R/O BAHRAMPUR, PS AND PO RAGHAPUR,
DISTRICT BAISALI, BIHAR
VERSUS
THE STATE OF ASSAM
REP. BY PP ASSAM
Advocate for the Petitioner : MR. A DUTTA
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
28.06.2024
Heard Mr. A. Dutta, learned counsel for the petitioner. Also heard Mr. R. J.
Baruah, learned Additional Public Prosecutor for the State respondent.
2. This is an application under Section 439 of the Code of Criminal Procedure,
1973 for grant of bail to the accused/petitioner, who has been arrested on
10.08.2023 in connection with NDPS Case No.44/2024, registered under
Sections 20(b) (ii) (C) of NDPS Act, pending before the Court of learned
Additional District & Sessions Judge No.-2, Kamrup (M), Guwahati.
3. The scanned copy of the LCR along with the Case Diary has already been
received and I have perused the same.
4. It is submitted by Mr. Dutta, learned counsel for the petitioner that the
accused/petitioner was arrested in connection with this case on 10.08.2023 and
since then, he is behind the bar. It is further submitted that the charge was
framed on 10.04.2024 and accordingly, the matter was fixed on 29.05.2024 for
evidence, however, on the said date the PWs remained absent and the next
date for evidence was fixed on 06.07.2024. He further submits that the
petitioner was 78 years old when he got arrested in the year 2023 and presently
he is 79 years old and hence, considering his old age as well as the length of
detention he may be enlarge on bail. Upon perusal of the seizure list, it is seen
that there was no independent witnesses at the time of seizure of the
contraband. Thus, he submits that there is non compliance of Section 42 (2)
and 50 of NDPS Act and on non-compliance of those mandatory provisions the
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accused/petitioner is entitled for bail.
5. In addition to his submission, Mr. Dutta, learned counsel for the petitioner
relies on the decision passed by the Punjab & Haryana High Court in CRM-M-
25498-2021 dated 14.06.2022 [Pankaj vs. State of Punjab] wherein, the said
High Court had expressed the view that where there was a total non compliance
of Section 42 of NDPS Act, the accused ought to have granted the concession of
regular bail and it is also observed that a prima facie satisfaction can be
recorded under Section 37 of the NDPS Act, if there is total non compliance of
Section 42 of NDPS Act.
6. He also relies on the decision passed by the Orissa High Court passed in
BLAPL No.2430 of 2021 decision on 14.10.2022 [ Raghu @ Rahul Rajput
Thakur vs. State of Orissa ] wherein, it has been held that the total non
compliance of mandatory provision of Sections 42 and 50 of NDPS Act can be
considered while entertaining an application for bail. More so, the learned
counsel for the petitioner relies on another decision passed by this Court
reported in 2018 (2) GLT 402 [Joginder Singh & Anr. vs. Union of
India], passed in Criminal Appeal Case No.256 of 2014 & 16 of 2015 decided
on 08.03.2018, and also relied on the decision of the Apex Court reported in
AIR 2021 SUPREME COURT 1913 [Boota Singh & Ors. vs. State of
Haryana] wherein, the Apex Court has observed the that the accused is entitle
for acquittal, if there is non compliance of Section 42 of NDPS Act.
7. Accordingly, he submitted that considering the entire aspect of the case as
well as age of the accused/petitioner and the length of detention already
undergone by the accused/petitioner, he may be enlarged on bail. Further it is
submitted that the accused/petitioner is a permanent resident of his addressed
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locality and there is no chance of absconding if the accused/petitioner is
enlarged on bail, rather, he will appear before the learned Trial Court on each
and every date fixed for the trial.
8. In this context, Mr. Baruah, learned Additional Public Prosecutor, has
submitted that it was a chance recovery and the contraband was recovered from
the possession of the accused/petitioner when the Railway Team had conducted
the joint checking drive, wherein, the accused/petitioner was found with the
possession of the suspected ganja and accordingly complying the required
formalities those were seized from the possession of the accused/petitioner. He
further submitted that it is not a case that the Railway authority had conducted
the drive with prior information, but, it was a chance recovery and on observing
all the formalities the contraband was seized. He further submitted that there is
no total non compliance of Section 50 of NDPS Act as the IO has observed all
the necessary formalities required at the time of seizure while producing the
accused/petitioner before the concerned Magistrate. He further submitted that
presently the case is at the stage of evidence and next date of evidence is fixed
on 06.07.2024 and hence, there is probability of disposal of the case within a
reasonable period. Further, he submitted that as the case was under the
commercial quantity, the rigor of Section 37 has to be followed and he
accordingly submitted that there is no reason to believe that the
accused/petitioner is innocent and he is not involved in the alleged offence nor
there can be any belief that he will not commit such kind of offence if he is
enlarged on bail, which are mandatory requirement while dealing with a case of
commercial in nature. Accordingly, he raised objection and submitted that it is
not a fit case to allow the accused/petitioner to go on bail at this stage and
apart from that the accused/petitioner belong to another State and hence the
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possibility of absconding also cannot be denied at this stage.
9. After hearing the submissions made by the learned counsels for both
sides, I have also perused the case record and the relevant annexures and the
other documents annexed along with the petition as well as in the case record.
10. It is a fact that the present accused/petitioner, arrested in connection with
this case on the allegation of recovery of commercial quantity of contraband
from his conscious possession. From the record, it is seen that seizure was done
in presence of the witnesses and that apart prayer was accordingly made for
certification under Section 52 A of the NDPS Act and accordingly, the inventory
was also prepared which were produced before the learned Magistrate for
certification of the inventory which was accordingly done by the learned
Magistrate and order for drawing the sample was also passed by the Magistrate
concerned which were accordingly sent to FSL examination. Thus, it cannot be
held that there was total non compliance of Sections 42 and 50 of NDPS Act for
consideration of bail. However, detail discussion may be required at the time of
final hearing of the case. But at present it is seen that there is a prima facie
case against the accused/petitioner and this Court do not find any reason to
belief that the accused/petitioner is innocent and he will not commit the same
kind of offence. Further, it is a case of commercial quantity and hence, the rigor
of Section 37 NDPS Act will follow.
11. For ready reference, Section 37 NDPS Act is extracted hereinbelow:
"37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973
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(b) No person accused of an offence punishable for offences under
section 19 or section 24 or section 27A and also for offences involving
commercial quantity shall be released on bail or on his own bond unless--
(i)the Public Prosecutor has been given an opportunity to oppose the
application for such release, and
(ii)where the Public Prosecutor opposes the application, the court is
satisfied that there are reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to commit any offence while
on bail."
12. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted,
if there is no reasonable ground for believing that accused is not guilty of such
offence and that he is not likely to commit any offence while on bail. But, from
the materials available in the case record as well as the evidences of the
witnesses, there cannot be any reasons to believe that the accused/petitioner is
not guilty of such offence or he is not likely to commit any offence while on bail
as per Section 37 (1) (b) of NDPS Act.
13. Further, as per the view of the Apex Court, the Court should be slow in
granting bail to the accused if the matter is involved with the commercial
quantity. In this context, a judgment of the Apex Court, passed in the case of
State by the Inspector of Police vs. B. Ramu (Criminal Appeal No. 801
of 2024), can be relied on, wherein in paragraph Nos. 9, 11, 12, 14 and 15
thereof, it has been held as under:
"9. A plain reading of statutory provision makes it abundantly clear
that in the event, the Public Prosecutor opposes the prayer for bail either
regular or anticipatory, as the case may be, the Court would have to
record a satisfaction that there are grounds for believing that the accused
is not guilty of the offence alleged and that he is not likely to commit any
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offence while on bail.
11. In case of recovery of such a huge quantity of narcotic substance,
the Courts should be slow in granting even regular bail to the accused
what to talk of anticipatory bail more so when the accused is alleged to be
having criminal antecedents.
12. For entertaining a prayer for bail in a case involving recovery of
commercial quantity of narcotic drug or psychotropic substance, the Court
would have to mandatorily record the satisfaction in terms of the rider
contained in Section 37 of the NDPS Act.
13. Manifestly, a very strange approach has been adopted by the
learned Single Judge in the impugned order whereby the anticipatory bail
was granted to the respondent on the condition that the appellant would
deposit a sum of Rs.30,000/- to the credit of the registered Tamil Nadu
Advocate Clerk Association, Chennai along with various other conditions.
The condition no.(a) (supra) so imposed by the High Court is totally alien
to the principles governing bail jurisprudence and is nothing short of
perversity.
14. The fact that after investigation, the charge-sheet has been filed
against the respondent-accused along with other accused persons,
fortifies the plea of the State counsel that the Court could not have
recorded a satisfaction that the accused was prima facie not guilty of the
offence alleged.
15. As a consequence, the impugned order is cryptic and perverse on
the face of the record and cannot be sustained. Thus, the same is
quashed and set aside."
15. Further, it is not the case that the trial has not yet commenced and it is
seen that the case has already been fixed for evidence after framing of the
charge. So, it is not a case to grant bail to the present accused/petitioner only
considering the period of incarceration.
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16. The Supreme Court in the case of Kalayan Chandra Satkar Vs. Rajesh
Ranjan Alias Pappu Yadav & Anr. [(2005) 2 SCC 42] has expressed the
view that the accused cannot be granted with bail solely on the ground of
period of incarceration undergone by the accused. It was further held that the
sole ground of delay in conclusion of the trial without taking into consideration
the allegation made by the prosecution in regard to the existence of prima facie
case, gravity of the offence and the allegation of tampering with the witnesses
by threat and inducement when on bail.
17. In the case of Rajesh Ranjan [(2004) 7 SCC 528], the Supreme Court
has held that mere fact that the accused has undergone certain period of
incarceration by itself would not entitle the accused to be enlarged on bail nor
the fact that the trial is not likely to be concluded in the near future, either by
itself or coupled with the period of incarceration would be sufficient for
enlarging the accused on bail. It is also held that while considering the bail
application, the Court must consider the nature of acquisition, the severity of
the punishment in case of conviction, the nature of supporting evidence,
reasonable apprehension of tampering with the witnesses or apprehension of
threat to the complainant and prima facie satisfaction of the court in support of
the charge.
18. In view of the discussions made above and also considering the entire
facts and circumstances of the case, nature and gravity of the offence and
further considering the view expressed by the Apex Court in the case laws
referred to hereinabove, this Court is of the opinion that there is a prima facie
case against the accused/petitioner and thus, at this stage, I am of the view
that it is not a fit case to enlarge the accused/petitioner on bail only considering
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the period of incarceration and hence, the same stands dismissed.
19. The bail application stands disposed of in terms above.
20. Returned the Case Diary.
JUDGE
Comparing Assistant
