Gauhati High Court

Kamrul Islam vs The State Of Assam on 3 March, 2025

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GAHC010029792025




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

                               Case No. : Bail Appln./425/2025

            KAMRUL ISLAM
            S/O- LATE MAHMOD ALI, R/O- VILL- KAMARBAND, P.S- PATAHARKANDI,
            DIST- SRIBHUMI, (KARIMGANJ),ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M A CHOUDHURY, MR A AHMED,U U KHAN,MR. A
AHMED

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

Date : 03.03.2025

1. Heard Mr. A. Ahmed, the learned counsel for the petitioner. Also heard Mr. B Sarma, the learned Additional Public Prosecutor.

2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has been filed by the petitioner, namely, Kamrul Islam, Page No.# 2/6

who has been detained behind the bars since 16.01.2024 in connection with Special NDPS Case No. 09/2024 corresponding to Patharkandi P.S. Case No. 12/2024.

3. The gist of the accusation in this case is that on 15.01.2024, one Bishal Chettry, S.I of Police, had lodged an FIR before the Officer-In-Charge of Patharkandi Police Station, inter-alia, alleging that on receipt of information through reliable sources that some persons were dealing with illegal narcotic substance in front of Kanaibazar M.E School at Gerarmukh. The informant accompanied with Police staff reached that place and found two suspected persons standing in front of Kanaibazar M.E School and one of them was holding a black coloured polythene. Both the persons were apprehended by the police.

4. The petitioner was one of the persons, who was apprehended. The other person was Md. Wahiduzz Zaman @ Suman Ahmed.

5. The learned counsel for the petitioner submits that the petitioner is in no way involved in the offence alleged in the FIR. He was picked up when he was found standing along with the co-accused Md. Wahiduzz Zaman @ Suman Ahmed.

6. The learned counsel for the petitioner has submitted that on perusal of the seizure list it would be clear that the seized contraband which was found in a black colour polythene packet was held by Md. Wahiduzz Zaman @ Suman Ahmed only and there is no material to connect the present petitioner with the offence alleged in this case apart from the fact that he was merely present along with the co-accused, from whose possession the contraband was recovered.

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7. The learned counsel for the petitioner has further submitted that as the contraband was not seized from the present petitioner, he could be only implicated under Section 29 of the NDPS Act, 1985 and for that also some materials shall have to be there to connect him with the crime. However, he submits that from the materials available on record, nothing is there to connect him with the offence alleged in the FIR except the fact that he was present along with the other co-accused from whose possession the contraband were seized by the police.

8. On the other hand, the learned Additional Public Prosecutor Mr. B. Sarma has vehemently opposed the grant of bail to the present petitioner and has submitted that there are sufficient materials in the case diary, which show the complicity of the present petitioner in the offence alleged in this case. He also submits that as the quantity of contraband involved in this case is commercial quantity, therefore, the embargo of the Section 37 of NDPS Act, 1985 is applicable to this case.

9. I have considered the submissions made by learned counsel for both sides and have gone through the scanned copy of the records of the Special NDPS Case No. 09/2024.

10. On perusal of the materials available on record, it appears that the contraband seized in this case was recovered from the possession of co-accused Md. Wahiduzz Zaman, when he was holding the same in a black polythene packet.

11. It also appears that the present petitioner was also found present along with the co-accused Md. Wahiduzz Zaman when he was found in possession of the seized contraband.

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12. Further, it appears on perusal of the materials available on record that apart from the statement of the accused persons, namely, the present petitioner as well as co-accused Md. Wahiduzz Zaman, there is no other material to link the present petitioner in the offence alleged in this case.

13. There is no dispute that the place where the co-accused was found possessing the seized contraband, i.e., in front of Kanaibazar M.E School at Gerarmukh, which is a public place. Hence, apart from mere presence of the present petitioner, there has to be some other admissible evidence on record to show the complicity of the present petitioner in the offence alleged in this case.

14. It is no longer res integra after the judgment of the Apex Court in the case of Tofan Singh vs. State of Tamil Nadu reported in (2020) 4 SCC 1 that the statement of the accused recorded under Section 67 of the NDPS Act, 1985 is not admissible as evidence in an offence under NDPS Act, 1985. In the instant case, the Investigating Officer has not collected any other admissible material on the basis of the lead which it got during the investigation, in the form of the statement of the accused persons recorded under Section 67 of the NDPS Act, 1985.

15. As the seized contraband was recovered from the co-accused Md. Wahiduzz Zaman and there is no admissible evidence on record to connect the present petitioner with the offence alleged in this case, hence, for the limited purpose of consideration of the instant bail application, prima facie it may be concluded that there are reasonable grounds to believe that the petitioner is not guilty of the offence involved in this case. Further, as no criminal antecedent of the petitioner can be shown before this Court, hence, there is no material on record to suggest that he is likely to commit any offence if bail is granted to him. Under such facts and circumstances of this case, the embargo of Section Page No.# 5/6

37 of the NDPS Act, 1985 does not appear to be applicable in the case of the present petitioner.

16. In view of the above, the petitioner, namely, Kamrul Islam, is allowed to go on bail of Rs. 1,00,000/- (Rupees One 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, Sribhumi with the following conditions:

i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 09/2024, which is pending in the Court of Sessions Judge, 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, mobile number, and other contact details before the Trial Court;

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;

vi. The Petitioner shall regularly appear before the Officer in charge of Patharkandi Police Station once in every fortnight till the pendency of the trial in Special NDPS Case No. 09/2024; and vii. That the petitioner shall not commit any offence while on bail.