Inamul Ali vs The State Of Assam
2025 Latest Caselaw 3737 Gua

Gauhati High Court

Inamul Ali vs The State Of Assam on 5 March, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

                                                                          Page No.# 1/9

GAHC010275442024




                                                                   undefined

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

                               Case No. : Bail Appln./3946/2024

            INAMUL ALI
            S/O MD. AMZAD ALI
            R/O VILL- KALITAPARA,
            P.O. GANESHKUARI, P.S. SIPAJHAR, DIST. DARRANG, ASSAM,
            PIN-784145, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M BISWAS, MS. A K CHOPHI,A GHOSAL,J SINGPHO

Advocate for the Respondent : PP, ASSAM,




                                  BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                           ORDER

Date : 05.03.2025

Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Addl. P.P for the State.

Page No.# 2/9

2. By filing this second bail application u/s 483 of BNSS, 2023, the petitioner has prayed for grant of bail in connection with NDPS Case No.03/2024 (Corresponding to North Guwahati P.S Case No.111/2023) u/s 21 (c)/ 29 of NDPS Act, pending in the Court of learned Sessions Judge, Kamrup, Amingaon.

3. As per FIR lodged on 11.09.2023, commercial quantity of heroin was recovered from a vehicle bearing No. AS01-FM-7800, wherein three persons Hapou Singso, Gogou Haokip and Samingon Doungal were travelling. Accordingly, the recovered heroin was seized and the said three accused were also arrested. Thereafter, a case was registered vide North Guwahati P.S Case No.111/2023.

4. Learned counsel for the petitioner has submitted that no contraband item was recovered from the possession of the petitioner and the petitioner has been arrested on the basis of the statement made u/s 67 of NDPS Act by a co- accused which is inadmissible in evidence as held by the Hon'ble Apex Court in Toofan Singh Vs. State of Tamil Nadu . It is further stated that the contraband

was recovered from the aforesaid three persons who were arrested along with the heroin. Under such backdrop, the petitioner may be released on bail.

5. Another point raised by the learned counsel for the petitioner is that except the statement recorded u/s 161 of Cr.PC, there is no allegation against the petitioner to be involved in this case. It is also pointed out that the accused has been languishing in judicial custody for more than one year and only three witnesses have been examined till date. There is no possibility to complete the trial within a short span of time. In view of the above, the petitioner is entitled to grant bail on the ground of prolonged incarceration.

Page No.# 3/9

In support of his submission, learned counsel for the petitioner has relied on the following case law-

a) Special leave to appeal (Crl) No.16768/2024 (Indrajit Rava Vs. State of West Bengal )

6. Per contra, learned Addl. P.P has argued that though no contraband was recovered from the possession of the petitioner but he was directly involved with the alleged trafficking of narcotic drugs. From the evidence of the witnesses, it appears that all the arrested accused persons disclosed that they brought drugs to deliver the same to the present petitioner along with two other co-accused, who were waiting near Sangsita Hotel, Amingaon. Accordingly, the petitioner along with two other accused were apprehended by the I.O who were waiting in the said Hotel.

7. According to the learned Addl. P.P, the alleged conduct of the petitioner shows that he is very much involved with the trafficking of the seized contraband. As such, the learned Addl. P.P prays for dismissal of the bail application.

8. In terms of the arguments raised by the counsels across the bar, as noted above, this Court is to decide whether a case for grant of bail is made out or not. Before going into the merits of the contention, it is essential to note that across the line of precedents settled by the Hon'ble Supreme Court, it is well settled that for grant of bail in respect of commercial quantity, the conditions as prescribed u/s 37 of the Act have to be taken into consideration before granting of the bail.

Page No.# 4/9

Section 37 of the Act is 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 2[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--

(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."

9. In terms of the mandate of Section 37 (1) (b) (ii), it is essential that the public prosecutor be heard and it is also essential that the Court should record its satisfaction that there are "reasonable grounds" for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The word "reasonable ground" for believing that the Page No.# 5/9

accused is not guilty came up for interpretation and the consistency in so far as the phrase "reasonable ground" is concerned was summarized by the Hon'ble Apex Court in the case of Union of India (NCB) Vs.

Md. Nawaz Khan, reported in, AIR 2021 SC 447. The relevant paras are as under-

"19.The standard prescribed for the grant of bail is 'reasonable

ground to believe' that the person is not guilty of the offence. Interpreting the standard of 'reasonable grounds to believe', a two- judge Bench of this Court in Shiv Shankar Kesari, reported in (2007) 7 SCC 798 held that -

"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

8. The word "reasonable" has in law the prima facie meaning of

reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable".

"7. ... In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the Page No.# 6/9

idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy."

(See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage

Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1 SCC 532]

10. The word "reasonable" signifies "in accordance with reason". In

the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]

11. The court while considering the application for bail with reference

to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

20. Based on the above precedent, the test which the High Court

and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under Page No.# 7/9

the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed."

10. The said phrase was also explained by the Hon'ble Supreme Court in the case of State of Kerala vs. Rajesh and others, reported in (2020) 12 SCC 122,

wherein the Hon'ble Supreme Court held as under:

"20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates."

11. The law laid down by the Apex Court in the case of Union of India Vs. Rattan Mallik @ Habul, reported in (2009) 2 SCC 624, wherein the apex court has

observed that when a special statute makes a specific provision for dealing with matters arising there under including the application for grant of bail, such provision cannot be ignored. In a later decision rendered by the Apex Court in the case of Rajesh (supra), the Apex Court has reiterated the same ratio and held that the twin conditions laid down u/s 37 of the NDPS Act must be satisfied Page No.# 8/9

for enlarging an accused on bail under the NDPS Act. The Hon'ble Apex Court by the said judgment while cancelling the bail order of the accused viewed that the finding mandated u/s 37 of NDPS Act is a sine qua non for granting bail to an accused under the NDPS Act.

12. In the case of Haricharan Biswas Vs. State of Tripura and Anr., reported in (2018) 2 TLR 733, it was held that the twin conditions laid down in Section 37 of

the NDPS Act which are cumulative and not in the alternative must be satisfied under the NDPS Act. It was also observed that in view of the Greater Societal Interest involved in such cases, a liberal approach in the matter of bail under the NDPS Act would not be appreciated.

13. In the instant case, the substance recovered by the Investigating Agency is of commercial quantity, even though the accused has raised the plea that he was not involved in any manner in the alleged transportation of the contraband, such plea of the accused petitioner cannot be accepted at this stage in view of the materials available against him.

14. PW-1, in his evidence clearly stated that on being asked all the three persons found in the Thar vehicle stated to them that they had brought the drugs to deliver the same to Khalilur Rahman, Inamul Ali (present petitioner) and Abdul Ali who were waiting near Sangsita Hotel, Amingaon. Thereafter, they have kept Hapou Singso, Gogou Haokip and Samingon Doungal with their staff and they proceeded in their Thar vehicle with one backup vehicle to Sangsita Hotel. When they reached Sangsita Hotel, Khalilur Rahman, Inamul Ali (present petitioner) and Abdul Ali came to their vehicle and asked to deliver the drugs. They did not know them. Thereafter, they apprehended Khalilur Rahman, Inamul Ali (present petitioner) and Abdul Ali, who were waiting there in one Page No.# 9/9

black color Creta vehicle bearing No. AS01-FE-1589.

15. As noted, accused in the present case has been charged with Section 21(c)/29 of NDPS Act where the contraband involves commercial quantity. Therefore, Section 37 of the NDPS case applies to this case. The question which falls for consideration of this Court is whether the accused has qualified the test provided u/s 37(1)(ii) of the NDPS Act.

16. As discussed, there are sufficient prima-facie materials against the petitioner as per evidence of PW-1. It is reported that out of ten witnesses, three witnesses have already been examined. Therefore, there is no scope for this Court to hold at this stage that there are reasonable grounds for believing that the petitioner is not guilty of the charge of offence brought against him and he is not likely to commit any offence while on bail.

17. In view of the law laid down by the Apex Court in the judgments as above and the given facts and circumstances of the case, this Court is of the opinion that the petitioner should not be enlarged on bail at this stage of trial. Consequently, his bail application stands rejected. However, the trial judge may take all necessary steps to expedite the trial of the case.

18. However, any observation made hereinabove is neither an expression of opinion on the merits of the case.

19. Accordingly, the bail application is disposed of.

JUDGE

Comparing Assistant