Haopu Singson vs The State Of Assam
2025 Latest Caselaw 221 Gua

Gauhati High Court

Haopu Singson vs The State Of Assam on 6 May, 2025

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GAHC010063442025




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

                                Case No. : Bail Appln./964/2025

            HAOPU SINGSON
            R/O- LEIJANGKHOPI,
            P/S-TUIBONG,
            DIST- CHURANDPUR,
            STATE-MANIPUR



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, GOVT.OF ASSAM



Advocate for the Petitioner   : MR. S D ROY, R BARMAN,L HANGZO

Advocate for the Respondent : PP, ASSAM,




                          BEFORE
           HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                           ORDER

Date : 06.05.2025

Heard Mr. L. Hangzo, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent.

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2. This is an application under Section 483 of the BNSS, 2023 read with Section 37 of the NDPS Act, 1985 praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 03/2024, arising out of North Guwahati P.S. Case No. 111/2023, under Section 21(c)/29 of NDPS Act, 1985, pending before the Court of learned District & Sessions Judge, Kamrup(R), Amingaon.

3. Scanned copy of the case record has already been received and I have perused the same.

4. It is submitted by Mr. Hangzo, learned counsel for the petitioner, that false and concocted allegations are brought against the present petitioner and he is not involved in the alleged offence. Nothing has been recovered from his conscious possession. However, he got arrested in connection with this case on 12.09.2023 and since then, he is in custody. More so, he submitted that the charge-sheet has already been filed on 29.12.2024, but till date, the prosecution could examined only 4 (four) numbers of witnesses out of 12 (twelve) numbers of listed witnesses and hence, he submitted that there is no scope of conclusion of trial within a short period and thus, considering his length of detention, the petitioner may be enlarged on bail. He will regularly appear before the learned Trial Court below as and when the date is fixed.

5. In this context, he also relied on the following decisions of Hon'ble Supreme Court:

(i) Mohd Muslim @ Hussain Vs. State (NCT of Delhi) [Special Page No.# 3/7

Leave Petition (Crl.) No(S). 915 of 2023]

(ii) Rabi Prakash Vs. The State of Odisha [Special Leave to Appeal (Crl.) No(S). 4169/2023]

6. In this context, Mr. Goswami, learned Additional Public Prosecutor, raised objection in enlarging the accused/petitioner on bail at this stage and accordingly submitted that the Investigating Officer has collected sufficient incriminating materials against the present accused/petitioner showing his direct involvement in the alleged offence. More so, there was a recovery of contraband in commercial quantity and the same were seized from the conscious possession of the present accused/petitioner and all the witnesses had implicated the present petitioner. He further submitted that the charge-sheet has already been filed finding prima facie materials against the present petitioner and already 4 (four) numbers of witnesses are being examined by the prosecution and thus, it can be held that there is no undue delay in trial proceeding.

7. Mr. Baruah further submitted that the case being the commercial in nature, rigor of Section 37 of NDPS Act will also follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But from the materials collected by the I.O. during investigation, there cannot be any reason to believe that the present accused/petitioner is not guilty of the alleged offence nor there can be any reasonable believe that he will not repeat similar kind of offence while on bail. More so, he submitted that these kinds of offences are very grave in nature as it mainly affects the young people in the society. Thus, he raised serious objection and submitted that it is not at all a fit Page No.# 4/7

case to grant bail to the present accused/petitioner at this stage.

8. After hearing the submissions made by the learned counsels for both sides, I have also perused the scanned copy of the case record along with the Case Diary.

9. As per allegation, it seen that on the day of incident, an information was received from the reliable source regarding transporting of Narcotic Drugs in a Black Colored Hyundai Creta Car from Churachandpur, Manipur. Accordingly, the informant, along with the other police personnel, rushed to the place of occurrence and conducted Naka checking wherein they apprehend the accused persons, wherefrom, on being searched, they found 170 numbers of soap boxed including 2 (two) packets partially burnt, containing suspected herion weighing 2.1 kg in total which were accordingly seized and the accused was also arrested.

10. Further, from the record, it is seen that the charge-sheet was submitted on 29.12.2023 and till date, out of 12 (twelve) numbers of listed witnesses, already 4 (four) witnesses are being examined by the prosecution. It is also an admitted fact that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow.

11. For ready reference, Section 37 NDPS Act is extracted hereinbelow:

"37. Offences to be cognizable and non-bailable.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973

(b) No person accused of an offence punishable for offences under section 19 or Page No.# 5/7

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."

12. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if there is reasonable ground for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, from the materials available in the case record, there cannot be any reasons to believe that the accused/petitioner is not guilty of such offence or he is not likely to commit any offence while on bail. Rather, from the materials so far collected by the I.O., it is seen that the present accused/petitioner is involved in drug trafficking and the present accused/petitioner was apprehended by police on the sport.

13. In this regard, a judgment of the Hon'ble Apex Court can be relied on which was reported in 2024 0 Supreme (SC) 130 (State by the Inspector of Police Vs. B. Ramu), wherein it has been held that in a case involving recovery of commercial quantity of narcotic drug or psychotropic substance, the Court would have to mandatorily record the satisfaction in terms of the rider contained in Section 37 of the NDPS Act. Court would have to record satisfaction that there are grounds for believing that accused is not guilty of offence alleged and that he is not likely to commit any offence while on bail. Further it has been held that the Courts should be slow in granting even regular bail to the accused persons who has the criminal antecedents.

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14. Further, in the case of The State of Meghalaya Vs. Lalrintluanga Sailo & Anr. [Special Leave to Appeal (Crl.) No(s). 16021/2023], the Apex Court has expressed the view that while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 NDPS Act is impermissible. The Hon'ble Apex Court, in paragraph Nos. 8 & 10 of the judgment, has held as under:

"8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and the decisions referred supra revealing the consistent view of this Court that while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible. Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications.

10. The subject FIR viz., FIR No. 06(02)23 under Section(s) 21(c)/29 of the NDPS Act, would reveal that the quantity of the contraband involved is 1.040 kgs of heroin. The impugned order granting bail to accused-Smt. X, dated 29.09.2023 would reveal, this time also, the bail was granted on the ground that she is suffering from HIV and conspicuously, without adverting to the mandate under Section 37(1)(b)(ii), NDPS Act, even after 6 taking note of the fact that the rigour of Section 37, NDPS Act, calls for consideration in view of the involvement of commercial quantity of the contraband substance. When the accused is involved in offences under Section 21(c)/29 of NDPS Act, more than one occasion and when the quantity of the contraband substance viz., heroin is 1.040 Kgs, much above the commercial quantity, then the non-consideration of the provisions under Section 37, NDPS Act, has to be taken as a very serious lapse. In cases of like nature, granting bail solely on the ground mentioned, relying on the decision in Bhawani Singh v. State of Rajasthan3 would not only go against the spirit of the said decision but also would give a wrong message to the society that being a patient of such a disease is a license to indulge in such serious offences with impunity. In the contextual situation it is to be noted that in Bhawani Singh's case the offence(s) involved was not one under the NDPS Act. We have no hesitation to say that in the above circumstances it can only be held that the twin conditions under Section 37 of the NDPS Act, are not satisfied and on the sole reason that the accused is a HIV patient, cannot be a reason to enlarge her on bail. Since the impugned order was passed without adhering to the said provision and in view of the rigour thereunder the accused-Smt.X is not entitled to be released on bail, the impugned order invites interference."

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15. The Hon'ble Supreme Court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. [2005 0 Supreme(SC) 104], has also held that "if a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be question as being violative of Article 21 since the same is authorized by law."

16. In the light of discussion made above and also considering the seriousness of the offence and the fact that there is a prima facie case against the present accused/petitioner and further considering the view expressed by the Hon'ble Apex Court in the case laws referred to hereinabove, this Court is of the view that it is not a fit case to enlarge the accused/petitioner on bail at this stage. Hence, the present bail application stands rejected.

17. The bail application stands disposed of in terms above.

JUDGE

Comparing Assistant