Mostafa Ali v. The State of Assam

ORDER 10-12-2024 Heard Mr. T. A. Laskar, learned counsel for the petitioner and Mr. M. P. Goswami, learned Additional Public Prosecutor, Assam for the State.

¶2Apprehending his arrest, the petitioner, namely, Mostafa Ali, son of late Nouchad Ali, resident of Village-Udiana (Sengtala), P.S.-Rangia, District-Kamrup has filed this application under Section 482 BNSS, 2023, seeking pre-arrest bail Page No.# 2/4 in Rangia P.S. Case No. 262/2024 registered under Section 111(2)(b) BNS, read with Section 20(b)(ii)(B) of the NDPS Act, 1985.

¶3From the case diary, Mr. Goswami, learned APP submitted that the petitioner is a habitual offender and was also arrested on 14.02.2024 in connection with Rangia P.S. Case No. 64/2024 registered under Sections 20(b)

(ii)(B)/21(b) of the NDPS Act.

¶4During search by police personnel from Rangia Police Station in presence of independent witnesses, 2 numbers of white colour polythene bag containing leafy substances, suspected to be Ganja weighing about 5.981 Kgs, together with the plastic polythene bag were recovered from the house of the petitioner. However, on arrival of the police, the petitioner managed to flee away from his house and as such, he was not found in his house.

¶5At this stage, Mr. Laskar, learned counsel for the petitioner submitted that the FIR of the case was lodged by one Sub-Inspector of Police. Further, the said SI of Police made the search in the house of the petitioner and also seized the suspected NDPS items from his house.

¶6According to Mr. Laskar, learned counsel for the petitioner, police is not authorized to search and seize under the NDPS Act. To that extent, Mr. Laskar, learned counsel placed Notification of the Government of Assam dated

25.04.1995 as well as Notification dated 15.05.1995 clarifying that it is only the police personnel in the rank of Inspector can enter, search and seized and arrest under the NDPS Act. However, from the perusal of the FIR, it can be seen that the complainant, the concerned SI of Police indicated the Notification of the Government of Assam under No.Ex.0145/85/290 dated 25.04.1995 under the provision of Section 42(1) of the NDPS Act to enter, search, seize and arrest Page No.# 3/4 without authorization.

¶7From the reading of the Notification dated 25.04.1995, placed before the Court by Mr. Laskar, learned counsel, it can also be seen that the Government of Assam by the said Notification dated 25.04.1995 have empowered all Excise Officer above the rank of Assistant Inspector of Excise, Police Officer and above the rank of Sub Inspector of Police and Drugs Control Officer and above the rank of Inspector of Drugs to exercise the power and perform the duties specified in Section 42 within the areas of their respective jurisdiction and also authorized the said officer to exercise the powers conferred upon them under Section 67 of the NDPS Act w.e.f., the date of publication of the said Notification in the official Gazette.

¶8As the concerned complainant is the Sub-Inspector of Police (UB) Branch as per the Notification dated 25.04.1995, he is authorized to enter, search, seize and arrest under the NDPS Act.

¶9As the case diary reveals sufficient incriminating materials with regard to the involvement of the petitioner in the alleged crime, this Court is of the view that it is not a fit to grant pre-arrest bail to the petitioner in said Rangia P.S. Case No. 262/2024.

¶10Accordingly, this pre-arrest bail application of the petitioner, Mostafa Ali, son of late Nouchad Ali, in said Rangia P.S. Case No. 262/2024 registered under Section 111(2)(b) BNS, read with Section 20(b)(ii)(B) of the NDPS Act, 1985 stands rejected.

¶11Return the case diary.

JUDGE Page No.# 4/4 Comparing Assistant

Page No.# 1/4 GAHC010242092024 2024:GAU-AS:12465 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/3027/2024 MOSTAFA ALI S/O LT. NOUCHD ALI A RESIDENT OF VILL- UDIANA (SENGTALA), P.O. RANGIA, P.S. RANGIA, DIST. KAMRUP, ASSAM VERSUS THE STATE OF ASSAM TO BE REP BY THE LEARNED PP, ASSAM Advocate for the Petitioner : T A LASKAR, A BORBHUYAN Advocate for the Respondent : PP, ASSAM, BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK