Manilal Malakar vs The State Of Assam And Anr
2025 Latest Caselaw 1033 Gua

Gauhati High Court

Manilal Malakar vs The State Of Assam And Anr on 15 July, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

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GAHC010112912025




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

                              Case No. : Bail Appln./1785/2025

            MANILAL MALAKAR
            S/O- SRI LAKHIRAM MALAKAR.
            VILL.- RAJYESWARPUR PT-I, P.S.- KATIGORAH, DIST.- CACHAR, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY PP, ASSAM

            2:UNION OF INDIA
             REPRESENTED BY THE DIRECTORATE OF REVENUE INTELLIGENCE
             SILCHAR
             SUB-REGIONAL UNIT
             SILCHAR

Advocate for the Petitioner   : MR. I H LASKAR, M RAHOMAN,J MEDHI,MR. R. KARIM,MR. P
DAIMARY,MR. P K DEKA

Advocate for the Respondent : PP, ASSAM, MR. D. BORAH, SC, DRI

                                        :: PRESENT ::
                   HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                    For the Petitioner :                     Mr. S. Dutta,
                                                             Senior Advocate.
                                                             Mr. P.K. Deka,
                                                             Advocate.
                    For the Respondent :                     Mr. D. Borah,
                                                             S.C., D.R.I.
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                   Date of Hearing  :                      26.06.2025.
                   Date of Judgment :                      15.07.2025.


                                    O R D E R (CAV)

Heard Mr. S. Dutta, the learned senior counsel assisted by Mr. P.K. Deka, learned counsel appearing for the petitioner. Also heard Mr. D. Borah, the learned Standing Counsel, D.R.I.

2. This is an application under Section 483 of the BNSS, 2023, whereby the petitioner Manilal Malakar who is facing trial in the court of the Special Judge, NDPS, Cachar, Silchar has prayed for releasing him on bail.

3. The petitioner Manilal Malakar was driving a truck bearing Registration No.MZ- 01H-1496. Twenty Six kilograms (26 kgs.) of narcotic drugs suspected to be Methamphetamine tablets were recovered from the truck. The petitioner was arrested. He was informed about the grounds of arrest. Thereafter, the petitioner made telephone calls to his wife Beli Malakar.

4. The principal grounds on which the bail application has been filed are non- compliance of the provisions of Section 47(1) and 48(1) of BNSS, 2023.

5. I have considered the submissions made by the learned counsel of both sides.

6. At this stage, a brief visit to Section 37 of the NDPS Act would be fruitful. It reads as under:

"37. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) every offence punishable under this Act shall be cognizable;

(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--

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(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.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."

7. The Code of Criminal Procedure 1973 no longer exists and it is replaced by the Bharitya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023). Sections 47 and 48 of the BNSS, 2023 are pari materia to Section 50 and 50A of the old CrPC, 1973. Section 37 of the NDPS Act says that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person, involved in an offence relating to commercial quantity of narcotic drugs shall be released on bail if the court is satisfied that there are reasonable grounds for believing that the said person is guilty of such an offence and he is likely to commit any offence while on bail.

8. In paragraph 18 of State of Kerala v. Rajesh, (2020) 12 SCC 122, the Hon'ble Supreme Court has held as under:

"18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522] , it has been elaborated as under:

"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects Page No.# 4/5

and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) '24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.'

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail

are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail.

Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

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9. Coming back to the case in hand, this Court is of the opinion that since the petitioner had informed his wife about his arrest, it is the sufficient compliance of constitutional provisions. This Court is of the opinion that at this stage there are no reasonable grounds for believing that the petitioner is not guilty of such an offence. Therefore, the bail application of the petitioner Manilal Malakar is found to be devoid of merit and stands dismissed accordingly.

JUDGE

Comparing Assistant