Faruk Ahmed v. The State of Assam

ORDER

23.01.2024. Heard Mr. A. Ahmed, learned counsel for the accused. Also heard Mr. B. Sharma, learned Addl. P.P. for the State respondent. Page No.# 2/6

¶2This application, under Section 439 of the Code of Criminal Procedure, 1973, is preferred by accused Faruk Ahmed, who has been languishing in jail hazoot since 02.02.2023, in connection with the Special (NDPS) Case No.108/2022, arising out of Patharkandi P.S. Case No. 177/2022, under Sections 22(C)/25/29 of the NDPS Act, pending before the learned Special Judge, Karimganj, for grant of bail.

¶3It is to be noted here that the aforementioned case has been registered on the basis of an FIR lodged by S.I. M. Narendra Singh of Patharkandi P.S. on 02.02.2023.

¶4The essence of allegations, made in the said FIR is that acting on a tip off on 18.07.2022, at about 2 am, the informant along with staff, conducted search in the cow shed of the house premises of one Ashab Uddin of South Keoti and recovered 30,000 suspected Yaba Tablets, weighing 3.270 kg and seized the same preparing seizure list. And during interrogation accused Asab Uddin reveals that his son Faruk Ahmed has started peddling of drugs and he might have kept the tablets concealed inside a School Bag and he is at Mizoram for some work.

¶5Mr. Ahmed, learned counsel for the accused, submits that the accused was arrested on 02.02.2023, and since then he has been languishing in jail hazoot. Mr. Ahmed further submits that search and seizure is illegal in as much as it was conducted during night hours and no reason has been assigned by the I.O. for conducting the same at night besides, mandatory provision of section 42 NDPS has not been followed. Mr. Ahmed also submits that nothing has been recovered from the possession of the accused and that the I.O. has submitted part charge sheet and no final charge sheet has been submitted till date. Further Mr. Ahmed submits that the accused is ready to face trial and will appear before the court on each and every date and therefore, it is contended to allow the petition.

¶6On the other hand, Mr. B. Sharma, the learned Addl. P.P. submits that all total 30,000 suspected Yaba Tablets, weighing 3.270 kg were recovered from the house of the accused and that the same were of commercial quantity and that the accused has failed to fulfill the twin requirement of section 37 of the NDPS Act. Mr. Sharma further submits that the issue of part charge sheet has already been dealt with by the learned court below vide order dated 07.08.2023, and that the case is pending for appearance of the co-accused and that the offences are serious in nature and therefore, it is contended to dismiss the petition.

¶7Having heard the submissions of learned Advocates of both sides, I have carefully gone through Page No.# 3/6 the petition and the documents placed on record and also perused the scanned copy of the case record, and also the Status Report, received from the learned Court below.

¶8The scanned copy of the record of the learned court below reveals that the accused was arrested on

02.02.2023, and since then he has been languishing in jail hazoot. It also appears from the record that learned court below had taken cognizance of the offence against the present accused under Sections 22(C)/25/28/29 of the NDPS Act on 16.09.2023 and now the case is pending for appearance of the co-accused. Further it appears that the issue of part charge sheet has already been dealt with by the learned court below vide order dated 07.08.2023, and the said order has not been challenged by the accused.

¶9It is, however, a fact that at the time of recovering the seized contraband substances the accused was not present at his house and as per version of his father, who is also a co-accused herein this case, he was at Mizoram at the relevant point of time. But, that does not mean that the seized contraband were not in his conscious possession. The issue of possession has been dealt with by Hon'ble Supreme Court in the case of Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100 as under:-

¶25We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7 SCC 465 : 2003 SCC

(Cri) 1664] this Court held that : (SCC p. 472, paras 19-23 & 26)

"19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

¶20Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

¶21It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. Page No.# 4/6

¶22The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] to work out a completely logical and precise definition of "possession" uniform[ly] applicable to all situations in the context of all statutes.

¶23The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. ***

¶26Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54, where also presumption is available to be drawn from possession of illicit articles."

¶26What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab [Dharampal Singh v. State of Punjab,

(2010) 9 SCC 608 : (2010) 3 SCC (Cri) 1431] , where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan [Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 : (2015) 3 SCC (Cri) 881] , this Court also observed that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

¶10Keeping these governing principles in mind the issue has to be decided only after taking evidence of the prosecution side, which has not yet been started before the learned court below.

¶11Even for the sake of argument it is accepted that the contraband substances were not recovered from the conscious possession of the present accused yet the same does not absolve it of level of scrutiny required under section 37(1) (b) (ii) of NDPS Act, as held by Hon'ble Supreme Court in Union Page No.# 5/6 of India through NCB, Lucknow vs. Nawaz Khan reported in (2021) 10 SCC 100, as the quantity of contraband substance recovered from the cow shed of the house premises of the accused is of commercial quantity, and as such, the embargo under Section 37 of the NDPS Act will definitely come into play.

¶12But, from the materials on record, specially from the scanned copy of the record received from the learned court below and also from the submission of learned counsel for the accused, this Court is unable to derive its satisfaction that there exists any reasonable ground for believing that the accused is not guilty of the offence and that he is not likely to commit any offence, while on bail.

¶13It is also to be mentioned here that in the case of Union of India vs. Ajay Kumar Singh @ Pappu, Criminal Appeal No.952 of 2023 [Arising out of SLP (CRL.) No.2351 OF 2023], decided on 28 March, 2023, Hon'ble Supreme Court, while setting aside the order of granting bail by the Allahabad High Court, to the accused involving in commercial quantity of contraband substance, has held as under:- "In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail."

¶14Same principle is echoed by Hon'ble Supreme Court in the case of NCB vs. Mohit Agarwal (Criminal Appeal Nos. 1001-1002 of 2022, arising out of petitions for Special Leave to Appeal (Crl.) No. 6128-29 of 2021, decided on 19 July, 2022.

¶15In view of above, and also in view of the nature and gravity of the offence and the punishment prescribed for the same this Court is of the opinion that this is not a fit case to grant the privilege of bail under Section 439 of the Cr.P.C. to the accused and therefore, the same stands dismissed.

¶16However, the learned Court below is directed to complete the trial as expeditiously as possible, without being influenced by any of the observations made by this court herein above. And if necessary, the learned court below shall take recourse to the provision of Section 309(1) of the Cr.P.C. Page No.# 6/6

¶17In terms of above, the bail application stands disposed of. JUDGE Comparing Assistant

Page No.# 1/6 GAHC010217772023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3467/2023 FARUK AHMED S/O ASAB UDDIN R/O VILL- SOUTH KEUTI P.S. PATHARKANDI DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM TO BE REP. BY THE PP, ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : PP, ASSAM BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN