Pawan Kumar Yadav and Anr v. The State of Assam

ORDER Date : 03.04.2024

¶1Heard Mr. A. Ahmed, learned counsel for the petitioners. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State.

¶2This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioners, namely, Pawan Kumar Yadav and Sanoj Kumar who have been detained behind the bars since 26.08.2022 (for last one year, seven months and six days) in connection with Special NDPS Case No. 121/2022 corresponding to Bazaricherra P.S. Case No. 156/2022 under Sections 20(b)(ii)(C)/29 of the NDPS Act, 1985.

¶3The gist of accusation in this case is that on 25.08.2022, one Dibakor Gogoi, S.I. of Police of Kathaltoli W.P. had lodged an FIR before the Officer-in-charge of Bazaricherra Police Station, inter alia, alleging that on that day an information was received that four persons were travelling on a passenger magic vehicle and were carrying 7 to 8 bags of Ganja with them. Accordingly, on the same day at about 12.15 PM, the first informant arrived at Kathaltoli Bazar Magic stand and found four persons with luggage as passenger in magic vehicle bearing Registration No. AS-11-AC-2925. All the four persons were apprehended and eight bags belonging to them were also seized and it was found that they were carrying total 73 kgs of Ganja in fifteen numbers of packets. Page No.# 3/8 On the basis of the said FIR, Bazaricherra P.S. Case No. 156/2022 was registered under Sections 20(b)(ii)(C)/29 of the NDPS Act, 1985 and investigation was initiated. Ultimately, on completion of the investigation, the charge-sheet was laid against four numbers of accused persons including the present petitioners.

¶4The learned counsel for the petitioners has submitted that though the petitioners have been detained behind the bars for last one year, seven months and six days, however, until now only three out of nine of the listed witnesses have been examined and there is unlikelihood of culmination of trial and, therefore, on the ground of prolonged incarceration, the counsel for the petitioner has prayed for allowing the petitioners to go on bail. It is also submitted by the learned counsel for the petitioners that the contraband seized from the individual capacity of the present petitioners is less than the commercial quantity and it was wrong to club the contraband that was seized individually from the petitioners together to bring it under the purview of commercial quantity. It is submitted by learned counsel for the petitioners that from perusal of the FIR itself it would be clear that from the custody of PW-1 i.e., Pawan Kumar Yadav, total 20 kgs. of Ganja was seized whereas from Sanoj Kumar, 18 Kgs. of Ganja was seized.

¶5The learned counsel for the petitioners has submitted that as the seizure from the petitioners was made individually from their luggage which was carried individually by the petitioners as has been mentioned in the FIR and as there is nothing on record Page No.# 4/8 to show that there was any abatement or conspiracy within the meaning of Section 29 of the NDPS Act, the contraband seized from the petitioners could not have been calculated to bring it under the purview of the commercial quantity.

¶6It is submitted by the learned counsel for the petitioners that if calculated individually, the total quantity of contraband seized from each of the present petitioners would be less than commercial quantity as for being commercial quantify of Ganja it has to be more than 20 kgs which is not the case in the instant case. Learned counsel for the petitioners has also submitted that if the seized contraband is calculated individually it would not be within the purview of commercial quantify and, therefore, the embargo of Section 37 of the NDPS Act, 1985 would not be applicable in this case. In support of his submissions, the learned counsel for the petitioners has cited a ruling of the Apex Court in the case of "Amarsingh Ramjibhai Barot Vs. State of Gujarat" reported in "(2005) 7 SCC 550" wherein it was observed as follows:- "8. Although, at first blush, the argument of the learned counsel appeared attractive, on careful appreciation of the facts on record we are satisfied that the High Court judgment is fully justified and needs to be upheld. It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased Danabhai Virabhai Rabari. In our view, however, there was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the Page No.# 5/8 recovered substances. Hence, it was not possible for the High Court to take the view that Section 29 was attracted."

¶7The learned counsel for the petitioners has also cited a ruling of the High Court of Bombay in the case of "Smt. Rashida Iqbal Khan Vs. State of Maharashtra" (Criminal Application No. 2177/2006 dated 21.06.2006) as another ruling of the High Court of Bombay in the case of "Sagar Nana Borkar Vs. The State of Maharashtra" (In Criminal Bail Application No. 3636/2022, dated 15th September, 2023).

¶8On the other hand, learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioners on the ground that all the four accused persons arrested in this case were found together in the magic vehicle bearing Registration No. AS-11-AC-2925 and all were going to Bihar from Patharkandi and the total quantity of Ganja seized from their possessions was 73 Kgs. and, therefore, it was commercial quantity of Ganja and embargo of Section 37 of the NDPS Act is applicable in this case.

¶9It is also submitted by learned Additional Public Prosecutor that mere fact that the all the four accused persons including the present petitioners were found in the same vehicle carrying the same contraband is itself an indication that there was an abatement and criminal conspiracy between them within the meaning of Section 29 of the NDPS Act, 1985. Learned Additional Public Prosecutor has also submitted that as out of nine witnesses three witnesses have been examined and there is likelihood of Page No.# 6/8 culmination of the trial very soon.

¶10I have considered the submissions made by learned counsel for both the sides and have perused the scanned copy of the case record of Special NDPS Case No 121/2022 including the case diary of Bazaricherra P.S. Case No. 156/2022.

¶11On perusal of the FIR, it appears that the seizure of contraband was made from eight separate bags belonging to four accused persons including the present petitioners and it has been specifically mentioned in the FIR as to from whose bag how much quantity of contraband was recovered. It also appears from the FIR, that from the two bags belonging to petitioner Pawan Kumar Yadav total 20 Kgs. of Ganja was recovered. Whereas, from Sanoj Kumar i.e., the petitioner No. 2, two bags containing 18 Kgs. of Ganja was recovered. It appears that at this stage apart from the fact that the petitioners were found in the same passenger vehicle and were found carrying similar contraband, no other material could be shown to suggest that there was abatement or criminal conspiracy within the meaning of Section 29 of NDPS Act, 1985. Though, the petitioners were found together in the said vehicle, however, they were found carrying the bags individually from where the contraband was recovered and therefore as per the judgment of the Apex Court of India in the case of "Amarsingh Ramjibhai Barot Vs. State of Gujarat (supra) at least prima facie for the purpose of consideration of the instant bail application, there is no material to show that Section 29 is attracted in this case. Moreover, as the contraband found Page No.# 7/8 individually from the possession of the present petitioners is less than commercial quantity, this court is of the considered opinion that embargo of Section 37 of NDPS Act would not be applicable in this case.

¶12Further, as the petitioners have already been detained behind the bars for last one year, seven months and six days, this court is of considered opinion that they are entitled to get bail in this case.

¶13In view of above reasons, the above named petitioners are allowed to go on bail of Rs.50,000/- (Rupees Thirty Thousand) each with two sureties of like amount and one of the surety may be a Government servant, subject to the following conditions:- i.That the petitioners shall cooperate in the remaining part of the trial and shall appear before the trial court as and when so directed by the trial court without fail; ii. That the petitioners shall not directly or indirectly make any inducement, threat or promise to any of the listed witnesses or any other person/persons who may be acquainted with the facts of the case so as to dissuade such persons from disclosing such facts during the trial; iii. That the petitioners shall not indulge in any offence similar to that with which they are charged with in the instant case. Page No.# 8/8

¶14With the above observation, this bail application is hereby disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/8 GAHC010177182023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oBailoAppln./2824/2023o PAWANoKUMARoYADAVoANDoANRo S/OoHRIDOYoYADAVo R/OoWARDoNO.o09,o VILL-oUSAN,oP.S.oGOGRIo DIST.oKHAGARIA,oBIHAR 2:oSANOJoKUMAR oS/OoPAWANoKUMARoYADAVo R/OoWARDoNO.o09 o VILL-oUSAN oP.S.oGOGRIo DIST.oKHAGARIA oBIHARo VERSUSo THEoSTATEoOFoASSAMo REP.oBYoTHEoPP,oASSAM AdvocateoforotheoPetitionerooooo:oMR.oDoMoCHAKRABORTYo AdvocateoforotheoRespondento:oPP,oASSAMoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA