Page No.# 1/5 vs The Union Of India
2025 Latest Caselaw 1700 Gua

Gauhati High Court

Page No.# 1/5 vs The Union Of India on 3 January, 2025

Author: Manash Ranjan Pathak

Bench: Manash Ranjan Pathak

                                                                                      Page No.# 1/5

GAHC010260482024




                                                                              2025:GAU-AS:41

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

                                Case No. : Bail Appln./3755/2024

             SUJONUR ROSHID
             S/O HARUNAR RASHID
             VILL- SHIALI, P.O. AND P.S. KRISHNAI
             DIST. GOALPARA, ASSAM, PIN-783126



             VERSUS

             THE UNION OF INDIA
             REP BY INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE
             INTELLIGENCE, GUWAHATI ZONAL UNIT, GUWAHATI.



Advocate for the Petitioner   : MS. A. MEDHI,

Advocate for the Respondent : SC, DRI,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                             ORDER

03.01.2025 Heard Ms. A Medhi, learned counsel for the petitioner and Mr. S C Keyal, learned Special Public Prosecutor, DRI for the sole respondent.

2) Petitioner, namely, Sujonur Roshid, son of Harunar Rashid, resident of Village-Shiali, P.S.- Krishnai, District-Goalpara has filed this application under Section 483 BNSS, 2023 praying for his bail in NDPS Case No. 315/2024, arising out of DRI Case No. 26/CL/NDPS/MORPHINE/DRI/ Page No.# 2/5

GZU/2023-24, registered under Sections 8(C)/22(C)/23(C) of the NDPS Act, 1985, in which, he was arrested on 10.03.2024 and is in custody since then.

3) The said matter is presently pending before the Court of learned Special Judge (NDPS) cum Additional Sessions Judge No. 2, Kamrup (Metro) at Guwahati.

4) According to the petitioner, after completion of the investigation of the case, final complaint/chargesheet was filed by the DRI against the petitioner under Section 36A of the NDPS Act, 1985 for the offence punishable under Sections 21(C)/22(C)/23(C) and 29 of the NDPS Act, 1985 on account of seizure of 2015 grams of Morphine from his possession. Thereafter, the Trial Court on 07.09.2024, took cognizance of the offences under Sections 21(C)/22(C)/23(C) and 29 of the NDPS Act, 1985 against the petitioner.

5) It is contended on behalf of the petitioner that while submitting the final complaint/chargesheet in the case by the by the DRI, it did not submit the FSL report of the alleged NDPS items seized from his possession and that the DRI only on 28.11.2024 submitted the relevant FSL report before the Trial Court i.e., after 295 days of his arrest. According to the petitioner the statutory period of detention in custody is 180 days and due to non-submission of the FSL report by the DRI along with its final complaint, he is entitled for his default bail after 180 days from his detention since 10.03.2024 and that he has been wrongly detained in custody.

6) With regard to the claim of bail due to non-submission of the FSL report with the final complaint, Ms. Medhi, learned counsel for the petitioner relied on the decision of a Division Bench Judgment of the Hon'ble Calcutta High Court in the case of Idul Mia -Vs.- State reported in 2024 SCC OnLine Cal 9109.

7) Ms. Medhi, learned counsel appearing for the petitioner submitted that in a similar case where the bail prayer of an alleged accused in a NDPS matter was earlier rejected by the High Court, where the FSL report was not submitted with the final offence report/charge-sheet, the Hon'ble Supreme Court in the case of Mohd. Arbaaz -Vs.- State (NCT of Delhi) granted interim bail to the alleged accused Mohd. Arbaaz.

8) Ms. Medhi, learned counsel for the petitioner also submitted that the petitioner is a local man from Village-Shiali under the jurisdiction of Krishnai Police Station of Goalpara District and therefore, there is no possibility of his absconding, if released on bail.

9) On the other hand, Mr. Keyal, learned Special Public Prosecutor, DRI submitted that the Page No.# 3/5

issue relating to the submission of the FSL report along with the final complaint/charge-sheet is presently pending before a Special Bench, comprising of 3 (three) Hon'ble Judges of the Hon'ble Supreme Court. As such, the petitioner cannot claim for benefit of bail due to non-furnishing of FSL report at the time of filing of final complaint within the statutory period of his detention.

10) In this regard, Mr. Keyal, learned Special Public Prosecutor, DRI relied on the decisions of the co-ordinate Benches of this Court in the case of (i) Adrish Khan -Vs.- Union of India, decided on 14.05.2024 in Bail Application No. 962/2024 (ii) Jitul Ali -Vs.- Union of India, decided on 20.11.2024 in Bail Application No. 2732/2024 and (iii) Motiar Rahman -Vs.-Union of India decided on 21.11.2024 in Bail Application No. 3246/2024. In addition to those 3 (three) decisions of the co-ordinate Benches of this Court, Mr. Keyal, learned Special Public Prosecutor, DRI have also placed a copy of the order dated 19.03.2024 of the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No. 15293/2023 in the case of Hanif Ansari -Vs.- State (Government of NCT of Delhi).

11) Mr. Keyal, learned Special Public Prosecutor, DRI submitted that this Court in the other cases has already held that in NDPS cases, non-filing of the FSL report along with the charge- sheet submitted within statutory period is not fatal for granting default bail to an accused of the case. In this regard, Mr. Keyal, learned Special Public Prosecutor, DRI from the Panchnama, annexed to this bail application as Annexure-1, placed before the Court that the NDPS item recovered from the possession of the petitioner was found to had given positive result for Morphine, while it was being tested during the time of its seizure by using Field Drug Testing Kit in presence of the petitioner as well as independent witnesses.

12) According to Mr. Keyal, learned Special Public Prosecutor, DRI, it is sufficient that the NDPS item recovered from the possession of the petitioner was Morphine, which is subsequently re- examined and the FSL report that was placed before the Court of learned Special Judge (NDPS), Kamrup (Metro), Guwahati in said NDPS Case No. 315/2024 re-confirmed the seized item as Morphine.

13) Mr. Keyal, learned Special Public Prosecutor, DRI has also submitted that in said NDPS Case No. 315/2024, the learned Trial Court on 12.12.2024 farmed charge under Section 21(C) of the NDPS Act, 1985 against the petitioner and that the said case is fixed 29.01.2025 for recording of evidence of prosecution witnesses.

Page No.# 4/5

14) Considered decision of the Calcutta High Court in the case of Idul Mia (supra) placed on behalf of the petitioner and also the decisions of the co-ordinate Benches of this Court as well as the order of the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No. 15293/2023 dated 19.03.2024, noted above.

15) The Court found that it is not the case of the petitioner that the substance recovered from his possession while being tested during the time of its seizure by using Field Drug Testing Kit, did not give positive result for Morphine. The only objection of the petitioner is that while submitting the final complaint/charge-sheet in the case, the FSL report was not filed along with it, which was submitted subsequently, after 180 days of detention of the petitioner, for which he is entitled for default bail.

16) It is seen that altogether, 2015 grams of Morphine was recovered from the possession of the petitioner, which, according to Mr. S C Keyal, learned Special Public Prosecutor, DRI has a value of Rs. 10,07,50,000/- in the open market.

17) On perusal of the order dated 19.03.2024 in the case of Hanif Ansari (Supra), it is seen that the Hon'ble Apex Court amongst others, considered it's earlier decision in the case of Central Bureau of Investigation-Vs.-Kapil Wadhawan and Another, reported in 2024 INSC 58 that dealt with the question of an incomplete charge-sheet and its impact on bail plea of an accused, where the Hon'ble Apex Court have held that--

"Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of the CrPC."

18) Considering the entire aspect of the matter, the decisions of the co-ordinate Bench of this Court in the case of Adrish Khan (Supra), Jitul Ali (Supra) and Motiar Rahman (Supra) as well as the order of the Hon'ble Supreme Court in the case of Kapil Wadhawan (supra) and Hanif Ansari Page No.# 5/5

(Supra), the Court found that the submissions of Mr. Keyal, learned Special Public Prosecutor, DRI has force. Court also found that of 2015 grams of Morphine, a scheduled NDPS item, much more than commercial quantity was recovered from the possession of the petitioner. Further, the learned Trial Court has already framed charge under Section 21(C) of the NDPS Act, 1985 against the petitioner for recovery of 2015 grams of Morphine from his possession.

19) For the reasons above, the Court is of the opinion that the petitioner is not entitled for any such benefit of Statutory/Default bail, for non-submission of the FSL report while submitting the offence report/charge-sheet in the case that was filed within the statutory period of detention of the petitioner, more particularly, finding that at the time of the seizure from the possession of the petitioner, while testing the seized substance by using the Field Drug Testing kit, the said seized substance gave the positive result for Morphine, a scheduled NDPS item. As such the detention of the petitioner in custody, since 10.03.2024, cannot be considered for his bail in said NDPS Case No. 315/2024, arising out of DRI Case No. 26/CL/NDPS/MORPHINE/DRI/GZU/ 2023-24, presently pending before the Court of learned Special Judge (NDPS) cum Additional Sessions Judge No. 2, Kamrup (Metro) at Guwahati.

20) Accordingly, this bail application of the petitioner, namely, Sujonur Roshid, son of Harunar Rashid in said NDPS Case No. 315/2024, arising out of DRI Case No. 26/CL/NDPS/MORPHINE/DRI/GZU/2023-24 stands rejected.

JUDGE

Comparing Assistant