Amir Hussain @ Md. Amir Hussain v. The State of Assam

ORDER Date : 17.02.2023

Heard Mr. N.J. Dutta, learned counsel for the petitioner. Also heard Mr. Bankim Sarma, the learned Addl. P.P. for the State.

¶2The petitioner, Amir Hussain @ Md. Amir Hussain, who was arrested on 21.06.2022 and forwarded on 22.06.2022 in connection with Page No.# 2/7 Panbazar P.S. Case No. 163/2022, under Section 21(c) of the NDPS Act, 1985, is seeking regular bail under section 439 IPC.

¶3The learned counsel for the petitioner has submitted that the petitioner is in custody for last 240 days and there is no chance of early trial of the case. It is also submitted that no contraband drugs was recovered from the petitioner and therefore, the petitioner has been apprehended only on suspicion and/or because of statement made by a co-accused, which is otherwise not admissible in trial.

¶4The learned Addl. P.P. has submitted that the scanned copy of the case diary is available with the record of B.A. No. 219/2023 and accordingly, it was submitted that he is ready with the matter and opposed the prayer for bail. Accordingly, although the case is listed in the "motion column", the matter has been heard for disposal.

¶5As per the case diary, on 21.06.2022, an FIR was lodged in Panbazar PS on the basis of information received at 6.30 am that two vehicles with consignment of drugs was coming from Jorabat area to Panbazar area. Accordingly, in a checking of vehicles was conducted in the Panbazar locality. During such checking, two following vehicles, i.e. Scorpio, bearing registration number AS-01-DV-1033 and one Tata Harrier vehicle without number plate were intercepted. From the Tata Harrier vehicle, in 14 packets, 133 blue colour small packets were found with each packet containing 200 numbers of orange colour 'WY' tablets. Thus total 26,600 (twenty six thousand six hundred) WY tablets (i.e. methamphetamine) were recovered. The said tablets are banned narcotic and psychotropic substance and it is of commercial quantity. Three accused who were travelling in Tata harrier vehicle and two accused persons including the Page No.# 3/7 petitioner travelling in Scorpio vehicle were apprehended and on the next day, they were remanded on 22.06.2022.

¶6The Part Final Report/Charge-sheet No. 75/2022 dated

31.08.2022 was submitted against the petitioner and 4 (four) other co-accused on 03.09.2022. In the charge-sheet, it has been mentioned to the effect that investigation is being carried out only in respect of owner of the Tata Harrier vehicle, and that the investigation in respect of the 5 (five) accused persons was complete. Therefore, there is no doubt that final form/ charge-sheet was submitted against the petitioner. Nonetheless, it is not in dispute that under the provision of section 173(8) Cr.P.C. the investigating agency/ police is empowered to direct further investigation.

¶7As per the FIR dated 21.06.2022, on specific information that two vehicles carrying narcotics were about to enter Panbazar area of Guwahati and therefore, police had started checking vehicles on road and two vehicles, i.e. AS-01-DV-1033 (Scorpio) and Tata Harrier vehicle without number plate were intercepted and during search, 26,600 WY (World is yours) tablet, which as per the FSL report, was tested positive for "methamphetamine", which is a contraband narcotic drug, was recovered from Tata Harrier vehicle.

¶8There are materials on record in the case diary indicating that both the vehicles were travelling together and the occupants of both vehicle including the petitioner are involved in the racket of smuggling commercial quantity of contraband narcotic drugs, which has a huge market value. From the statement of the arrested 5 (five) accused persons, prima facie, it appears that they were all travelling together.

Page No.# 4/7

¶9While considering the prayer for bail, the Court is required to consider the twin requirement of Section 37 of the NDPS Act, 1985. A 3-Judge Bench of the Supreme Court of India in the case of Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497, had held that the Court is required to strike a balance between the nature of the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused. It was further observed that the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the accused on the one hand and ensuring purity of the trial of the case on the other.

¶10We would also like to refer to the case of Narcotics Control Bureau v. Mohit Aggarwal, AIR 2022 SC 3444, wherein a 3-Judge Bench of the Supreme Court of India had observed and held as follows:-

¶13The expression 'reasonable ground' came up for discussion in ' State of Kerala and others Vs. Rajesh and others', (2020) 12 SCC 122 and this Court has observed as below: "20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal Page No.# 5/7 approach in the matter of bail under the NDPS Act is indeed uncalled for.' [emphasis added]

¶14To sum up, the expression 'reasonable grounds' used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

¶15We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.

¶16Coming back to the facts of the instant case, the learned Single Judge of the High Court cannot be faulted for holding that the appellant-NCB could not have relied on the confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down by a Three Judges Bench of this Court in Tofan Singh (supra), wherein as per the majority decision, a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act. Therefore, the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside. However, this was not the only material that the appellant-NCB had relied on to oppose the bail application filed by the respondent. The appellant-NCB had specifically stated that it was the disclosures made by the respondent that had led the NCB team to arrive at and raid the godown of the co-accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups. Counsel for the appellant-NCB had also pointed out that it was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on and the CDR details of the mobile phones of all co-accused including the respondent herein showed that they were in touch with each other. Page No.# 6/7

¶17Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.

¶11Thus, appreciation of the evidence to find out whether or not the accusation is sustainable should be left to the trial Court and such examination is not envisaged at the stage of deciding a bail application.

¶12In this case, a huge quantity of 26,600 contraband methamphetamine tablets was seized from one of the two vehicles travelling together. Thus, when two vehicles are travelling together, merely because no contraband was seized from one vehicle would not entitle the petitioner for bail as he was travelling in such vehicle. The 5 (five) accused persons including the petitioner were apprehended together. Hence, the Court has no material to record its satisfaction that the petitioner is not guilty of the offence or that if granted bail, he would not repeat such offence, which is the requirement of Section 37 of the NDPS Act, 1985.

¶13Accordingly, the prayer for granting bail to the petitioner, Amir Hussain @ Md. Amir Hussain, who was arrested in connection with Panbazar P.S. Case No. 163/2022, under Section 21(c) of the NDPS Act, 1985 is refused at this stage.

¶14This application for bail is disposed of. Page No.# 7/7

¶15The Registry shall not issue certified/uncertified copy of any document from the scanned copy of case diary received from the learned Additional Sessions Judge No.3 (FTC), Kamrup (Metropolitan), Guwahati. JUDGE Comparing Assistant

Page No.# 1/7 GAHC010031532023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./533/2023 AMIR HUSSAIN @ MD. AMIR HUSSAIN S/O LALCHAND MIAH VILL- KAKRIPARA, P.S. MANKACHAR DIST. SOUTH SALMARA, MANKACHAR, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. N J DUTTA Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA