Abdul Jalil v. The State of Assam

ORDER Date : 30-05-2024

Heard Mr. M. Nath, learned Senior Advocate for the petitioner Sri Abdul Jalil, who has filed this application under Section 439 of the Code of Criminal Procedure, 1973 (CrPC for short) with a prayer for bail as he is behind bars since 11.09.2023 in connection with Special Case No.365/2022 arising out of Page No.# 2/4 Dhubri Police Station Case No.861/2020 under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act for short).

¶2The FIR unfolds that the informant along with his team while checking an auto bearing registration No. 17B 8883 at Gadaldhora Bridge, found 114 bottles, each containing 100 ml of cough syrup from the possession of one Monjur Ali, who was arrested. Thereafter, these bottles were seized in connection with this case. The arrested accused informed that the present petitioner had sent those cough syrup bottles with him to be sold as there are other huge amounts of contraband in his house. The house of the present petitioner was searched but the petitioner managed to escape.

¶3Heard Mr. B. B. Gogoi, learned Additional Public Prosecutor, Assam for the respondent State.

¶4I have considered the submissions at the bar with circumspection.

¶5It is submitted that charge sheet has been laid against the petitioner on

13.07.2022 under Section 22(b) of the NDPS Act but the learned Trial Court framed charge under Section 22(c) of the NDPS Act without applying judicial mind. As NBWA was issued against him, the petitioner had approached this Court and vide order dated 29.08.2025 in Criminal Petition No. 905/2023, the petitioner was directed to appear before the learned Trial Court. When, in compliance of the order of this Court, the petitioner appeared before the Trial Court, the petitioner was forwarded to custody on 11.09.2023 and since then he is behind bars.

¶6Heard the learned Additional Public Prosecutor, Assam for the respondent State. Page No.# 3/4

¶7The learned Additional Public Prosecutor has raised serious objection stating that the learned Trial Court has correctly framed charge under Section 22(c) of the NDPS Act as the quantity recovered from the co-accused was above commercial quantity. The petitioner has relied on the decision of Hon'ble the Supreme Court in Chitta Biswas @ Subhas Vs. State of West Bengal in Criminal Appeal No. 245/2020 wherein it has been observed that : "4. According to the prosecution, the appellant was found to be in possession of narcotic substance i.e. 46 bottles of phensydryl cough syrup containing codeine mixture above commercial quantity.

¶5The appellant was arrested on 21.07.2018 and continues to be in custody. It appears that out of 10 witnesses cited to be examined in support of the case of prosecution four witnesses have already been examined in the trial.

¶6Without expressing any opinion on the merits or demerits of the rival submissions and considering the facts and circumstances on record, in our view, case for bail is made out. We therefore, allow this appeal and direct as under:

(a) Subject to furnishing bail bond in the sum of Rs.2 lakhs with two like sureties to the satisfaction of the Judge, Special Court, NDPS Act, Nadia at Krishnagar, the appellant shall be released on bail.

(b) The Special Court may impose such other conditions as it deems appropriate to ensure the presence and participation of the appellant in the pending trial."

¶8The instant case is distinguishable from the case referred to by the petitioner. In this case 114 bottles of cough syrup were recovered from the co-accused of the petitioner. In his case, the petitioner earlier allegedly fled from his house during investigation and when he was directed to appear before the Trial Court by an order of this Court, he was forwarded to custody on

11.09.2023, Only 4 (Four) witnesses are cited as witnesses. Charges were framed on 22.09.2023. Trial has just commenced. It cannot be considered that the Court or the prosecution has procrastinated the trial. At this juncture, petition with prayer for bail is rejected. However, the petitioner is at liberty to Page No.# 4/4 apply for bail if trial is procrastinated any further by the prosecution or by the Court. The Trial Court is directed to make every endeavour to expedite the trial for speedy disposal of this case.

¶9In the above terms this Bail Application stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/4 GAHC010035052024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./505/2024 ABDUL JALIL S/O ABDUS SAMAD R/O KISMAT HASHDOHA (HASDAHA ) PART-IV, P.S. DHUBRI (SADAR), DIST. DHUBRI, ASSAM VERSUS THE STATE OF ASSAM TO BE REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. A A R KARIM Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND