Sahab Uddin vs The State Of Assam
2025 Latest Caselaw 3476 Gua

Gauhati High Court

Sahab Uddin vs The State Of Assam on 25 February, 2025

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GAHC010262732024




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                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./3837/2024

            SAHAB UDDIN
            S/O LATE MUSADDAR ALI
            R/O VILL- KABARIBOND
            P.O. AND P.S. PATHARKANDI
            DIST. SRIBHUMI, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR H R CHOUDHURY, A S PRODHANI,S. TALUKDAR

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

Date : 25.02.2025

1. Heard Mr. H. R. Choudhury, the learned counsel for the petitioner. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor appearing for the State of Assam.

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2. This is an application under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 by the petitioner namely, Sahab Uddin, who has been detained behind the bars since 29.09.2024 in connection Special NDPS Case No. 46/2024 arising out of Nilambazar P. S Case No. 92/2024 under Section 22(c)/25/29 of the NDPS Act, 1985.

3. The gist of the accusation in this case is that on 13.04.2024, one Shri Sujit Sinha, SI of Police, had lodged an FIR before the Officer-In-Charge of Nilambazar Police Station, inter-alia, alleging that on receipt of an information through reliable sources that one vehicle would be carrying huge quantity of drugs from Karimganj side to Nilambazar via National Highway No. 8. A police team was constituted and a naka was placed near a A1 family restaurant at Shri Krishnanagar at around 9.30 pm.

4. During naka checking, a black colour Kia car bearing Registration No. AS01-FK-2939 coming from Karimganj side was intercepted.

5. On search, two occupants were found inside the vehicle, namely, Abul Hasan and Saharul Islam.

6. During search of the vehicle, 10.916 kg of Yaba tablets were found from the said vehicle.

7. On receipt of the said FIR, Nilambazar P. S. Case No. 92/2024 was registered and investigation was initiated.

8. Ultimately, on completion of investigation, charge-sheet was laid against the accused persons including the present petitioner.

9. The learned counsel for the petitioner has submitted that the petitioner is in no way involved in the offence alleged in the FIR and he has been falsely implicated in this case.

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10. It is submitted that the petitioner was called on 27.09.2024 by the second officer of Patharkandi Police Station to get some help as to whether he know one person named Azhar from Silchar.

11. On this, the petitioner responded that he said Azhar is his nephew. The petitioner was thereafter, requested by the police to visit Silchar and accordingly, on the next day, i.e., on 28.10.2024, the petitioner visited Silchar and however, the police could not nab the said Azhar on this said day and the petitioner was asked to visit Bazaricherra Police Station. When petitioner visited Bazaricherra Police Station, he was arrested and was kept in the lock-up.

12. Later on, he came to know his son Rahim Uddin has been made an accused in this case.

13. The learned counsel for the petitioner has submitted that nothing was seized from the position of the present petitioner and he is in no way involved in the offence alleged in this case. He submits that apart from the statement of the co-accused, there is nothing against the present petitioner and therefore, in view of the observation of the apex court in the case of "Tofan Singh Vs. State of Tamil Nadu" reported in (2021) 4 SCC 1 that the statement recorded under Section 67 of the NDPS Act, 1985 is inadmissible in a trial of offence under Section 97 of the NDPS Act, 1985.

14. On the other hand, the learned Additional Public Prosecutor, Mr. R. J.

Baruah, has vehemently opposed the grant of bail to the present petitioner, on the ground that there are sufficient incriminating materials against the petitioner on record and as the quantity of contraband seized Page No.# 4/7

in this case is of commercial quantity, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He therefore, prays for rejecting the prayer for bail by the petitioner.

15. The learned Additional Public Prosecutor has submitted that the seized contraband in this case was meant for delivery to the present petitioner and his son Rahim Uddin as apparent from the statement of the co- accused persons recorded during investigation.

16. The learned Additional Public Prosecutor has also submitted that the call detail report of the arrested accused persons shows that they were in frequent contact with a Mobile No. i.e., "6900410756" which was used by the present petitioner.

17. The learned Additional Public Prosecutor has also submitted that the petitioner has also admitted regarding his involvement in the alleged offence during interrogation by the Investigating Officer.

18. The learned Additional Public Prosecutor has submitted that due to embargo of the Section 37 of the NDPS Act, 1985 unless reasonable grounds are there to believe that the petitioner is not involved in the offence alleged and is not guilty of the offence alleged in this offence, he may not be granted bail and the circumstances in this case i.e., the statement of the accused persons as well as the petitioner and the call detail reports suggest the complicity of the petitioner in the offence alleged. Hence, he submits that this is not a fit case to grant bail to the petitioner.

19. In support of his submission, he has cited ruling of the Apex Court in the case of:

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i. Union of India (NCB) ETC. Versus Khalil Uddin ETC. reported in 2022 Live Law (SC) 878 ; as well as ii. Narcotic Control Bureau Versus Mohit Agarwal reported in 2022 Live Law (SC) 613.

20. I have considered the submissions made by learned counsel for both the parties and have gone through the materials available on record.

21. In the instant case, the recovery of the contraband was not made from the possession of the present petitioner. He has been implicated mainly on the basis of the statement made by the co-accused, who were apprehended in this case.

22. The other material which the prosecution intends to rely is the call detail report of the mobile phone of co-accused which indicates that the petitioner was in touch with the co-accused persons through Mobile No. "6900410756".

23. On careful perusal of the materials on record, it appears that the SIM card of the Mobile No. "6900410756" was not in the name of the present petitioner.

24. Further, it appears that apart from the statement of the co-accused as well as that of the petitioner recorded during the course of the investigation. There is no other material to show the complicity of the present petitioner in the offence alleged in this case.

25. It is no longer res integra after the judgment of the Apex Court in the case of "Tofan Singh Vs. State of Tamil Nadu" (Supra) that the statement recorded under Section 97 of the NDPS Act, 1985 cannot be or not admissible in trial of an offence under the NDPS Act, 1985. Thus, prima facie for the purpose of consideration of the instant bail application, Page No.# 6/7

it appears that no other admissible evidence is there in record, which would show the complicity of the present petitioner in the offence alleged in this case.

26. Under the aforesaid circumstances, this Court is of considered opinion that for the limited purpose of granting bail to the present petitioner, it can be held that there is reasonable ground to come to the finding that petitioner is not guilty of the offence alleged in this case. Further, there is no other criminal antecedent of the present petitioner on record.

27. Therefore, this Court is of considered opinion that the embargo of Section 37 of the NDPS Act, 1985 is not applicable to this case.

28. In view of the above, the petitioner, namely, Sahab Uddin, is allowed to go on bail of Rs. 2,00,000/- (Rupees Two Lakh only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of learned Sessions Judge, (Karimganj) Sribhumi with the following conditions:

i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 46/2024, which is pending in the Court of learned Sessions Judge, (Karimganj) Sribhumi; ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner;

iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN Card as well as Mobile Number, and other contact details before the Trial Court;

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v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioner shall not commit any offence while on bail.

29. Violation of any of the above condition would be a good ground for the Trial Court to exercise its powers under Section 483(3) of the BNSS, 2023.

30. With the above observation, this bail application is accordingly, disposed of.

JUDGE

Comparing Assistant