Gauhati High Court
Anowar Hussain vs The State Of Assam on 3 May, 2024
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GAHC010032682024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./471/2024
ANOWAR HUSSAIN
S/O LATE ABDUL KARIM
R/O VILL- KAKRIPARA
P.S. MANKACHAR
PIN CODE- 783131, DIST. SOUTH SALMARA MANKACHAR, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. Y S MANNAN
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
22.04.2024
Heard Mr Y S Mannan, learned counsel for the petitioner, Anowar Hussain.
2. The petitioner has filed this application under Section 439 CrPC, with prayer for
bail, as he is behind bars since 22.01.2022, in connection with Sessions Case No.
203/2022, arising out of Panbazar PS Case No. 163/2022, registered under Sections
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21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, for
short).
3. Heard Mr K Baishya, learned Additional Public Prosecutor for the State of Assam.
4. It is submitted on behalf of the petitioner that there was no recovery from the
petitioner or from the vehicle occupied by the petitioner. Thus, no conscious possession
can be attributed to the petitioner. None of the witnesses or co-accused have
incriminated the petitioner when the statements were recorded. There were no
incriminating evidence against the petitioner when the seizure witnesses gave their
statements. Only one witness has been examined so far.
5. The learned counsel for the petitioner has also relied on the decision of Hon'ble the
Supreme Court in the case of Mohd Muslim @ Hussain -Vs- State (NCT of Delhi), in
connection with Special Leave Petition (Crl.) No. 915 of 2023, wherein it has been
observed that-
"20. The standard to be considered therefore, is one, where the
court would look at the material in a broad manner, and reasonably see
whether the accused's guilt may be proved. The judgments of this court
have, therefore, emphasized that the satisfaction which courts are
expected to record, i.e., that the accused may not be guilty, is only
prima facie, based on a reasonable reading, which does not call for
meticulous examination of the materials collected during investigation
(as held in Union of India v. Rattan Malik). Grant of bail on ground of
undue delay in trial, cannot be said to be fettered by Section 37 of the
Act, given the imperative of Section 436 A which is applicable to
offences under the NDPS Act too (ref. Satender Kumar Antil (supra).
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Having regard to these factors the court is of the opinion that in the
facts of this case, the appellant deserves to be enlarged on bail."
6. The learned counsel for the petitioner has also relied on the decision of Hon'ble the
Supreme Court in Rabi Prakash -vs- The State of Odisha, in connection with Special
Leave to Appeal (Crl.) No. 4169 of 2023, wherein it has been observed that-
4. As regard to the twin conditions contained in Section 37 of the
NDPS Act, learned counsel for the respondent - State has been duly
heard. Thus, the 1 st condition stands complied with. So far as the 2 nd
condition re: formation of opinion as to whether there are reasonable
grounds to believe that the petitioner is not guilty, the same may not be
formed at this stage when he has already spent more than three and a
half years in custody. The prolonged incarceration, generally militates
against the most precious fundamental right guaranteed under Article
21 of the Constitution and in such a situation, the conditional liberty
must override the statutory embargo created under Section 37(1)(b)(ii) of
the NDPS Act.
7. The learned Additional Public Prosecutor has raised serious objection stating that
charge was framed on 15.12.2022. It is true that only one witness was examined so far,
but there are about 13 witnesses enlisted in the charge sheet and PW-1 was examined on
17.05.2023. The petitioner was driving the vehicle and there is a nexus between this
vehicle and the other vehicle from which 26600 Yaba tablets were recovered.
8. I have considered the submissions at the Bar.
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9. The FIR unfolds that on a tip-off on 21.06.2022 that two vehicles with consignment
of drugs were approaching from Jorabat side towards Guwahati, a naka checking was
held by the investigating team. After following proper procedure, two vehicles, one
black coloured Scorpio, bearing Registration No. AS01DV1033 and one Tata Harrier
(black colour) without registration number was intercepted. The Tata Harrier without
number plate was driven by Md Safique and 14 packets wrapped with yellow coloured
tape containing 133 blue coloured small packets containing total number of 26,600 Yaba
tablets were seized from the black coloured Tata Harrier. These tablets were concealed in
the artificial deck below the mat of the dickey of the car and the occupants of the car
were Md Irfan Khan and Md Musharraf, and the driver Md Safique, were apprehended.
Further, the driver of the Scorpio, bearing Registration No. AS01DV1033 is the present
petitioner and the occupant was Md Amir Hussain and they were also involved with the
consignment seized in connection with this case. Investigation commenced and charge
sheet was laid against the present petitioner.
10. I have scrutinized the scanned copies of the Trial Court Record and also the
statements of the co-accused. The statements of the witnesses and co-accused are not
brought to the fore as this case is subjudiced and trial is under progress.
11. The record reveals that the present petitioner was driving the Scorpio, bearing
Registration No. AS01DV1033. Without bringing the statements of the witnesses under
Section 161 CrPC to the fore, it is observed that charge sheet has been laid against the
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petitioner. At this juncture, it cannot be decided on the basis of the evidence of a single
witness that the petitioner is innocent. It is true that the articles seized in connection with
this case, more particularly, the Yaba tablets along with Rs. 7 lacs have not been seized
from the vehicle of the petitioner, but at the same time, investigation of this case
culminated into a charge sheet and the charge sheet was also laid against the petitioner.
12. Mohd Muslim @ Hussain's case (supra) is distinguishable from this case. The
appellant, Md Muslim was arrested in the intervening night of 03/04.10.2015 and he was
behind bars continuously since then till 28.03.2023. 34 witnesses were yet to be
examined, but the appellant, Mohd Muslim was languishing in the jail. In the instant
case, the present petitioner is behind bars since 22.01.2022. At this juncture, it cannot be
held that trial has been procrastinated by the prosecution or by the Court and personal
liberty of the petitioner has been curtailed. the case of Rabi Prakash (supra) is
distinguishalble from this instant case. The appellant Rabi Prakash was behind bars for
more than 3 ½ years and only 1 out of 19 witnesses have been examined in connection
with the case of the appellant, Rabi Prakash.
13. The double pronged embargo under Section 37 of the NDPS Act, is a fetter to the
bail application at this stage.
14. Petition with prayer for bail is rejected at this juncture, with a liberty to the
petitioner to apply for bail later, if trial is procrastinated further. The learned trial Court
is directed to expedite the trial for the speedy disposal of this case.
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15. Bail Application stands disposed of.
JUDGE
Comparing Assistant
