Monoj Boro v. The State of Assam

ORDER Date : 04-01-2023 Heard Mr. P Das, learned counsel for the accused and Mr. BB Gogoi, learned Addl. PP, appearing for the State Respondent. This application under section 439 Cr.P.C., is preferred by the accused, namely, Monoj Boro, who is languishing in jail hajot since Page No.# 2/3

18.03.2022, in connection with NDPS Case No.41/2022, under sections 22(C)/29 NDPS Act, corresponding to Changsari PS Case No.123/2022, for grant of bail. The said case has been registered on the basis of an FIR lodged by one ASI Upananda Kalita on 18.03.2022, to the effect that acting on a tip off, they have intercepted one vehicle, bearing registration No.AS-01DT/2019, Mahindra KUV, and found two persons, namely, Md. Safik Ali and Sri Manoj Boro and recovered 65 nos of AL-QUREX cough syrup from the possession of the accused persons and seized the same preparing seizure list in presence of the witnesses. Mr. Das, learned counsel for the accused submits that the accused is behind the bar for the last 293 days and in the meantime, the IO has laid charge sheet against the accused and the learned court below has framed charge against the accused under section 22(c) of the NDPS Act and till date, one witness has been examined by the prosecution side. Referring to the charge sheet, which is enclosed with the petition as Annexure – B, Mr. Das submits that the IO has indicated in the charge sheet that during investigation he came to know that on 17.03.2022, one Abdul Ali, who deals with the business of QUREX, brought the contraband from the pharmacy of Md. Ritul Ali and kept secretly in the dicky of vehicle No.AS 01 DT 2019, which was used by Md. Safik Ali. Referring to the evidence of PW – 1, the first informant, the learned counsel for the accused submits that during search of the vehicle in which accused Safik Ali and Monoj Boro were traveling, he found the dicky of the car open and found one big size plastic jar about 20 litre capacity inside the dicky with AL-QUREX cough syrup bottles. Mr. Das further submits that though 65 numbers of AL-QUREX cough syrup was recovered from the car, in which the accused were travelling, the accused was not aware of the Page No.# 3/3 same and it was not seized from the conscious possession of the accused as per the charge sheet and it was placed by one Abdul Ali, without the knowledge of accused in the vehicle in which he was travelling. And as such, the rigors of section 37 of the NDPS Act will not come into play here and therefore, it is contended to allow this petition. On the other hand, Mr. RJ baruah, learned Addl. PP fairly submits that as per the charge sheet, the 65 bottle of AL-QUREX cough syrup was placed in the vehicle of Safik Ali by one Abdul Ali who procured the same from the pharmacy of Ritul Ali, placed the same in the vehicle where accused Safik Ali and present accused were travelling. This being the position, this Court is of the considered opinion that the bar of Section 37 NDPS Act will not come into play here in this case as it was not recovered from the conscious position of the accused and the co accused Safik Ali, who was travelling with the present accused Monoj Boro, has already been granted bail by this Court in BA No.1381/2022, vide the order dated 21.06.2022, on the same ground. Having considered the above and also considering the submission of learned Advocates for both the sides and the observations made by this Court in BA No.1381/2022, in the order dated 21.06.2022, this Court is of the view that a case for granting bail to the accused is made out and accordingly, it is provided that on furnishing a bond of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned Special Judge, NDPS Act, Amingaon, the accused be enlarged on bail. In terms of above, the bail application stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/3 GAHC010242582022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3253/2022 MONOJ BORO S/O LATE GOPAL BORO R/O VILL- SILAKORAIBARI P.S. CHANGSARI DIST. KAMRUP, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR R K MOUR Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN