Abu Bakkar Siddique @ Abu Bakker Siddique v. The State of Assam

ORDER

04.03.2024 Heard Mr. B. Chowdhury, learned counsel for the accused. Also heard Mr. R.J. Baruah, learned Addl. P.P. for the State respondent.

¶2This application, under Section 439 Cr.P.C. is preferred by accused, Abu Bakkar Siddique @ Abu Bakker Siddique, who has been languishing in jail hajoot in connection with Dhubri P.S. Case No. 345/2023, under Sections 22(c) of the Narcotic Drugs and Psychotropic Substance Act, since Page No.# 2/5

02.09.2023, for grant of bail.

¶3It is to be noted here that above noted case has been registered on the basis of an FIR lodged by one Deepjyoti Engti, of Dharmashala W.P. on

01.09.2023.

¶4The essence of allegation, made in the FIR, dated 01.09.2023, is that acting on a tip off, the informant and his police staff conducted search in the house of one Rofiqul Hoque @ Mirajul Hoque and apprehended him and recovered 65 plastic containers, containing 9 grams of suspected heroine, and 288 Nos. of Spas-Trancan Plus Capsules and seized the same in presence of witnesses. And during interrogation, Rofiqul Hoque @ Mirajul Hoque disclosed the name of Abu Bakkar Siddique and Shahidul Islam Bepari @ Pintu and accordingly, he conducted raid in the house of Shahidul Islam Bepari @ Pintu and recovered 190 numbers of suspected Yaba Tablets and total 288 Nos. of Spas-Trancan Plus Capsules and seized the same in presence of the witnesses.

¶5Mr. Chowdhury, learned counsel for the accused, submits that the accused was arrested on 02.09.2023, and since then, he has been languishing in jail hajoot for more than 179 days. Mr. Chaudhury, further submits that the investigation herein this case has culminated in submission of charge sheet before the learned Court below and now the case is pending for evidence now. Mr. Chowdhury, further submits that nothing has been recovered from the possession of the accused and he was arrested only on the basis of statement of co-accused which is not at all admissible. Mr. Chowdhury also submits that the accused is innocent and he will face the trial and he will appear before the learned Court below on each and every date and, therefore, it is contended to allow this petition. Page No.# 3/5

¶6On the other hand, Mr. R.J. Baruah, learned Addl. P. P. submits that charge has already been framed against the accused under section 22(C)/29 NDPS Act and the case is pending for evidence. Further, Mr. Baruah submits that though nothing has been recovered from the possession of the present accused and that he was arrested on the basis of statement of the co-accused and his own statement, yet, on the basis of his statement and on the basis of statement of co-accused, contraband substance was recovered from the possession of co-accused Sahidul Islam Bepari and as such his and co-accused statement can be relied upon. Further Mr. Baruah submits that the quantity of contraband substances, so recovered from the possession of the accused are of commercial quantity and as such, the accused has to satisfy the requirement of Section 37 of NDPS Act but, the accused has failed to satisfy those requirements, and therefore, Mr. Baruah has opposed the petition.

¶7Having heard the submission of learned Advocates for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the scanned copy of the record and case diary received from the learned Court below.

¶8It is not in dispute that the informant has recovered 190 numbers of suspected Yaba Tablets and total 288 Nos. of Spas-Trancan Plus Capsuls from the house of the co-accused, namely, Sahidul Islam Bepari, and seized the same in presence of the witnesses. It is also not in dispute that the quantities of the contraband substances, so recovered from the possession of the accused and also from the other co-accused are of commercial quantity, and as such the accused person has to satisfy the twin conditions of Section 37 of the NDPS Act that - there is no reasonable ground to believe that the accused is not guilty of the offence and that he is not likely to commit any Page No.# 4/5 offence while on bail.

¶9But, from the materials on record, specially from the scanned copy of the record and also from case diary 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.

¶10It 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."

¶11Same principle is also 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.

¶12It is a fact that though nothing has been recovered from the possession of the present accused and that he was arrested on the basis of statement of the co-accused and his own statement. This proposition of law is well settled in the case of Toofan Singh vs. State of Tamil Nadu, reported in (2021) 4 SCC 1. But, the fact remains that on the basis of his statement Page No.# 5/5 and on the basis of statement of co-accused, contraband substance was recovered from the possession of co-accused Sahidul Islam Bepari and as such, the matter stands on a different footing.

¶13In 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.

¶14However, the learned Court below is directed to expedite the trial and conclude the same at the earliest possible time, 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.

¶15In terms of above, the bail application stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010270992023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./4403/2023 ABU BAKKAR SIDDIQUE @ ABU BAKKER SIDDIQUE S/O KASHEM ALI R/O VILL- KISMAT HASDAHA PT. 4, P.O. DHARMASALA P.S. AND DIST. DHUBRI, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. B CHOWDHURY Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN