Habib Ahmed vs The State Of Assam
2025 Latest Caselaw 2309 Gua

Gauhati High Court

Habib Ahmed vs The State Of Assam on 27 January, 2025

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GAHC010136432024




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

                               Case No. : Bail Appln./2109/2024

            HABIB AHMED
            S/O NOIMUL HOQUE, R/O VILL- KANAKPUR, P.O. AND P.S.-NILAMBAZAR,
            DIST- KARIMGANJ, ASSAM, PIN-788724



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR SISHIR DUTTA, MR. S DUTTA,MS S MOCHAHARI

Advocate for the Respondent : PP, ASSAM,




                                  BEFORE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                           ORDER

27.01.2025

1. Heard learned Senior Counsel Mr. S. Dutta for the petitioner Habib Ahmed.

2. This application has been filed by the petitioner under Section 439 of the Cr.PC, 1973/Section 483 of the BNSS, 2023 with prayer for bail as he is behind Page No.# 2/8

bars since 04.06.2024 in connection with Special NDPS Case No. 122/2021, arising out of Nilam Bazar P.S. Case No. 432/2021 under Sections 22(c)/25/29 of NDPS Act, 1985.

3. Heard Mr. K. Baishya, learned Additional Public Prosecutor, Assam for the respondent State.

4. It is submitted on behalf of the petitioner that the contraband was not seized from the conscious possession of the petitioner. Charge-sheet was laid against the petitioner being C.S. No. 43/2022 dated 19.05.2022, under Sections 22(c)/25/29 of the NDPS Act.

It is submitted that the petitioner is entitled to bail as he has been apprehended only on the statement of the co-accused. In compliance of the rigours of the Section 37 of the NDPS Act, the petitioner is entitled to bail. The co-accused have already been granted bail in connection with Criminal Revision petition No. 513/2023 on 26.10.2022, and Criminal Revision petition No. 94/2023 on 08.02.2023. The petitioner has thus prayed for bail on the grounds of parity. It is submitted that charges are not yet framed. The case is proceeding at a snail's pace. 4 absconders have been released on bail. The petitioner is highly prejudiced as he is wrongly incarcerated since 04.06.2024.

5. The petitioner has relied on the decision of the Hon'ble Supreme Court in Bharat Chaudhary and Ors Vs. The Union of India and Ors reported in (2021) 20 SCC 50, wherein it has been observed that :

" 13. .... .... Most Importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16-3-2020. Reliance on printouts of WhatsApp messages downloaded from the mobile phone Page No.# 3/8

and devices seized from the office premises of A -4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited.

14. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the Impugned order dated 15-7-2021. This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh². The impugned order qua A-4 is, accordingly, quashed and set aside and the order dated 2-11-2020 passed by the learned Special Judge, EC & NDPS cases, is restored. As for Raja Chandrasekharan (A-1), since the charge-sheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial court. "

It is further submitted on behalf of the petitioner that he was not at all aware about charge-sheet being laid against him and when summons were issued by the learned Trial Court, he learnt that charge-sheet was laid against him, and thereafter he preferred a Criminal Revision Petition No. 95/2023, and vide order dated 03.05.2023, this Court directed the petitioner to appear before the Trial Court within 20 days and pray for regular bail which may be considered by the Court as per merits of the case. It is further submitted that as the petitioner was taking care of his ailing parents, he failed to appear before the learned Trial Court within the stipulated time. The petitioner then approached this Court for pre-arrest bail but the petitioner's prayer was rejected in connection with A.B. No. 3518/2024 vide order dated 17.02.2024. On 04.06.2024, the petitioner surrendered before the Trial Court and he was forwarded to custody.

6. It is submitted that the secret information received by the investigating team was not taken down in writing and Section 42(i) of the NDPS Act has not been complied with. The Standing order 1 of 1989 and Procedure under Section 52(A) of the NDPS Act has not been complied with. The petitioner is thus Page No.# 4/8

entitled to bail, more so, when the petitioner is an innocent citizen and was never involved in any offence relating to narcotics and such other contraband. During investigation, no evidence was collected against the petitioner nor any contraband was seized from his conscious possession to connect the petitioner to the offence. The petitioner is a local permanent resident and he is not a flight risk.

7. Learned Additional Public Prosecutor Mr. K. Baishya and Mr. B. Sharma have raised serious objection stating that charge-sheet has been laid against the petitioner as during investigation, sufficient materials were found to connect the petitioner to the crime. 32.55 kgs of Yaba tablets were recovered depicting the enormity and the gravity of the offence.

8. Learned Trial Court has rejected the bail petition vide order dated 04.06.2024. The petitioner was found deeply involved in transportation of contraband. The conduct of the petitioner also reveals that the petitioner is not entitled to bail. Any bail relating to the petitioner is restricted by rigours of Section 37 of the NDPS Act.

9. The petitioner who was evading arrest was forwarded to custody only on 04.06.2024, which clearly reveals that his right to personal liberty has not been infringed atleast at this stage of trial. At this juncture, it cannot be held that trial has been procrastinated by the Court or by the prosecution. A close scrutiny of the Trial Court Records clearly reveals that trial has been procrastinated not by the Prosecution or by the Court but by the petitioner himself who was evading appearance and thus the petitioner is not entitled to bail.

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10. I have considered the submissions at the Bar with circumspection. Charge-

sheet has been laid against the petitioner and seven other accused. The petitioner was shown as absconder in the charge-sheet. Charges are yet to be framed. The case was procrastinated by the co-accused who has been evading arrest. The last date was passed on 30.07.2024, and another date has already been fixed for consideration of charge.

11. The petitioner has also relied on the decision of the co-ordinate bench of this

Court in Ahadul Hussain & Ors Vs. The State of Assam in connection with B.A. No. 126/2021, wherein vide a common order dated 30.04.2021, 8 bail applications were disposed of and the petitioners were granted bail. It was observed by this Court that:-

" In Nurezzaman Islam @ Nurajjaman (supra), neither narcotic drugs and psychotropic substances nor any objectionable documents were recovered from the house of the accused-petitioner therein. No material was collected during the investigation to indicate that the said accused-petitioner was running any business in drugs or had employed the other accused persons to transmit the drugs. The entire case therein was hinged and was based around the statement of the co-accused without any other positive evidence. In Ashik Ahmed Mondal @ Larju (supra), pursuant to a secret information, three accused persons were intercepted when they were going in a vehicle. On being searched, contraband substance involving commercial quantity were seized from their possessions. The accused-petitioner therein was arrested by the Narcotics Control Bureau (NCB) on the basis of a statement of one of the afore-stated three arrested accused persons, made purportedly under Section 67 of the NDPS Act, that he would sell a part of the contraband substance to the accused-petitioner therein. No contraband substance was seized from the possession of the said accused petitioner and no other material was brought on record to connect the said accused-

petitioner with the recovery of contraband or the offence involved in the said case. Having considered the above fact situations, the co-ordinate benches arrived at opinions that there were no reasonable grounds to Page No.# 6/8

believe that the two accused-petitioners in Nurezzaman Islam @ Nurajjaman (supra) and Ashik Ahmed Mondal @ Larju (supra) may ultimately be held liable for the offences of those cases for which they were made accused. "

12. I have considered the submissions at the Bar with circumspection. Reverting

back to this case, it is held that the facts and circumstances of this case is not similar to the facts and circumstances referred to by the petitioner i.e., the case of Bharat Chaudhary (Supra) and the case Ahadul Hussain and Ors (Supra). In Bharat Chaudhary's case, the petitioners approached the Hon'ble Supreme Court as bail granted to the petitioners was reversed vide order dated 15.07.2021, by the High Court of Judicature at Madras. It was held by the Hon'ble Supreme Court that there was no live link to establish that the petitioners were involved in the crime. The petitioners were arrested only on the basis of statements of the co-accused. Moreover, in Para-13 of the judgment, it was also observed that:-

" 13. In the absence of any clarity far on the quantitative analysis SO of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16-3-2020. Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of A -4 cannot be treated at this stage as sufficient material to establish a live link between him and Page No.# 7/8

A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited."

13. It is thus clear that in Bharat Choudhary's case, admittedly, a large number

of tablets seized by the DRI contained herbs/medicines meant to enhance male potency, and they do not attract the provisions of the NDPS Act.

14. On the contrary, this case is related to a bail application after the petitioner's

prayer for anticipatory bail was rejected. Charges are yet to be framed in connection with this case and the petitioner has the option to place the same submission at the point of consideration of charge relating to the possibility of conviction. The petitioner has prayed for bail at a nascent stage. The facts and circumstances of Ahadul Hussain's case is also not similar to this case. The procrastination of this case has been contributed by the accused shown as absconders in this case whereas, there is no such allegation of procrastination by the accused in the case of Ahadul Hussain and Ors (Supra).

15. It is true that the accused who were on the same footing were granted bail

in connection with this case, but it cannot be ignored that in cases relating to serious offences, the length of detention and the ground of parity is not required to be taken into consideration.

16. This is a case relating to a serious offence and the allegation against the petitioner and the co-accused is that they were involved in transporting :-

(1) 50 blue coloured Yaba tablets, each packet contained 200 Yaba tablets,

each parcel contains 10,000 tablets, total 70,000 Yaba tablets. (2) 46 black coloured packets and each containing 200 tablets;

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each packet containing 200 Yaba tablets, total 9200 Yaba tablets. (3) 18 parcels containing 50 tablets,

each packet containing 200 tablets and a total of 1,80,000 Yaba tablets.

17. The number of tablets as mentioned above reveals the gravity of the offence.

At this juncture, it is held that the rigours of Section 37 of the NDPS Act fetters bail. I am constrained to reject the bail petition. At this juncture, bail stands rejected.

18. However, the petitioner is at liberty to pray for bail if there is procrastination

to frame the charges or proceed with the trial expeditiously.

JUDGE

Comparing Assistant