Azbahar Ali v. The State of Assam

ORDER

13.10.2023 Heard Mr. M.U. Mahmud, learned counsel for the applicant and also heard Mr. P. Borthakur, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. Page No.# 2/5

¶2Apprehending arrest in connection with Panbari P.S. Case No.45/2023, under Sections 21(b)/29 of the NDPS Act, this application, under Section 438 of Cr.P.C., is preferred by applicant, namely, Azbahar Ali for grant of pre-arrest bail.

¶3It is to be noted here that the above noted case has been registered on the basis of one FIR lodged by S.I. Sadhan Ch. Dutta of Panbari Police Station on 16.07.2023.

¶4The essence of allegation made in the said FIR, dated 16.07.2023 is that acting on a tip off the informant and his staffs conducted search in the house of applicant Azbahar Ali and apprehended his wife Muklima Bibi and recovered 152.2 gm of narcotic drugs (heroine) and 255.5 gm of suspected cough syrup from his house.

¶5Mr. Mahmud, the learned counsel for the applicant submits that the applicant is innocent and no way involved in the offence alleged in the FIR. Mr. Mahmud further submits that the applicant was not present in his house at the relevant time and nothing has been recovered from his possession and it was planted in his house by his neighbour, with whom he has inimical relation, and that his wife has already been arrested in this case and she has been enlarged on bail also and that he is ready to co-operate with the investigating agency and that he will abide by any of the conditions imposed by this court and therefore, it is contended to allow this petition.

¶6Per contra, Mr. P. Borthakur, the learned Addl. P.P. has vehemently opposed the petition. Mr. Borthakur further submits that the applicant is the main culprit of the case from whose residence 152.2 gm of narcotic drugs (heroine) and 255.5 gm of suspected cough syrup were recovered and he had not been co-operating with investigating agency and evading arrest and though the quantity of contraband substance is of intermediate quantity, yet, there is materials against the applicant, and therefore, it is contended to dismiss the petition.

¶7Having heard the submission of learned Advocates for both the sides, I have carefully gone through the petition and the documents placed on record and also perused the case diary so produced by Mr. Borthakur, the learned Addl. P.P. with his assistance. Page No.# 3/5

¶8It is to be mentioned here that in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, reported in (2011) 1 SCC 694, specially to para 112, Hon'ble Supreme Court had laid the parameters, required to be taken into consideration by the Court, while granting anticipatory bail. The parameters are as follows:- "122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and Page No.# 4/5 unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

¶9It the case in hand, it appears from the case diary that the investigating officer has collected sufficient incriminating materials against the applicant. He had recovered 152.2 gm of narcotic drugs (heroine) and 255.5 gm of suspected cough syrup from the house of the applicant and that the applicant has been absconding since then. Further it appears that the Investigating Officer had arrested the wife of the applicant, namely, Muklima Bibi and forwarded her to the court. However, she has been enlarged on bail.

¶10It also appears from the materials available in the case diary that the contraband substances were collected by the applicant and he was in search of the prospective customers to sell the same. Thus, it cannot be said from the materials available in the Case Diary that custodial interrogation of the applicant is not required in the interest of investigation.

¶11Having considered aforementioned facts and circumstances, and also the nature and gravity of the offence, and the punishment prescribed for the same, and further considering the role played by the applicant of this case, as well as the submission of learned Advocates for both the sides, and also in view of the observation, so made in the case of Siddharam Satlingappa Mhetre (supra) as discussed herein above, and striking a balance between the individual right of the applicant and that of the societal interest, this Court is of the view that this is not a fit case where the privilege of pre-arrest bail can be extended to the applicant.

¶12And accordingly, this petition stands dismissed. The applicant shall surrender before Page No.# 5/5 the Investigating Officer, forthwith. The Case Diary be returned. Comparing Assistant Sd/- Robin Phukan JUDGE

Page No.# 1/5 GAHC010167112023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/2666/2023 AZBAHAR ALI S/O MD. SOHER ALI R/O VILL- NO. 2 GOROIMARI P.O. PANBARI P.S. PANBARI DIST. CHIRANG, ASSAM PIN CODE- 783391 VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. M U MAHMUD Advocate for the Respondent : PP, ASSAM BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN