Sh. Golam Wazid Barbhuiya v. State of Mizoram and Anr

ORDER

05.12.2023 This is an application under Section 37 of the ND&PS Act, 1985 read with Section 439 CrPC for enlargement of the applicant on bail pending trial.

¶2The case of the prosecution is that the applicant was arrested on 11.08.2023 at 10:30 am in connection with the seizure of 1.314 kgs of heroin kept in soap cases Page No.# 2/7 which was further kept in two gallons (blue and black colour). As per the seizure and arrest memo, the illicit articles were seized at the outskirt of Keifang. The seized articles marked as S-1 to S-11 were recovered from inside the blue colour plastic gallon and S-12 to S-105 from black colour gallon which was carried on the roof of the seized Bolero Pick Up vehicle bearing Registration No. AS-11 EC-5417. Alongwith it, a Swift Car bearing Registration No. AS-11 Z-4750 was also seized. As per seizing Officer, he received a report on 10.08.2023 at around 9:00 pm from his source stating that one non-Mizo person named Monir Uddin and his friend transported some quantity of heroin from Zokhawthar and requested him to take further necessary action as per law. The said Monir Uddin was located and intercepted at Keifang alongwith his friend while driving Swift Car BR No. AS-11-Z-4750. During that time, one Bolero pick up vehicle BR No. AS-11-EC-5417 passed by and the driver of the Bolero Pickup and Monir Uddin and his friend gave signal to each other. The seizing Officer then checked the Bolero Pickup vehicle and recovered 105 soap cases containing suspected heroin. Accordingly, Excise Case No. 224/2023 dated 12.08.2023 under Section 21(c) of the ND&PS Act has been registered against the applicant i.e. Sh. Golam Wazid Barbhuiya alongwith, co-accused, namely, Monir Uddin Laskar, Salman Uddin Laskar, Burhan Uddin Tabadar, Mayajul Hoqu Barbhuiya and the investigation has already been completed and the trial has commenced.

¶3Mr. C. Lalfakzuala, learned counsel appearing on behalf of the applicant submits that applicant has been languishing in Jail since the date of his arrest i.e. 11.08.2023 for alleged commission of offence under Section 21(c) of the ND&PS Act, 1985. He further submits that the applicant is innocent of the offence charge against him and has never indulged in any kind of criminal activities and have no previous record and this is the first time that he has been arrayed as an accused.

¶4By referring to the seizure and arrest memo dated 11.08.2023 and the report of seizure and arrest submitted to the Officer-in-Charge, Anti Narcotic Squad of Excise & Page No.# 3/7 Narcotics, Aizawl, he further submits that there are no statements or allegations connecting the applicant with the seizure of 1.314 kgs from the said Bolero vehicle. The applicant was not travelling in the said Bolero vehicle from where the said contraband articles has been seized. The applicant was travelling in another vehicle (Swift car) and hence was not aware of the contraband articles seized from the Bolero vehicle.

¶5On the other hand, Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State strongly opposes the prayer for bail.

¶6By referring to the FIR (annexure-2) as well as the chargesheet (annexure-6), she submits that there are materials to indicate that the applicant though was traveling in the said Swift vehicle had conscious possession of the contraband articles seized from the said Bolero vehicle.

¶7Mr. C. Lalfakzuala counters the said argument of the Addl. Public Prosecutor, by submitting that the applicant in the instant case cannot by any stretch of imagination be said to have conscious possession of the contraband articles seized from a vehicle in which he was not present and in this regard, references are made to the decision of the Apex Court in the cases of (i) Ismailkhan Aiyubkhan Pathan Vs. State of Gujarat reported in (2000) 10 SCC 257 at para 4, 5 and 8, and (ii) Avtar Singh & Others Vs. State of Punjab, reported in (2002) 7 SCC 419 para 6 and to the decision of this Court in the case of Onyx Maiphok & Ors Vs. State of Assam & Another reported in 2010 (4) GLT 565 at para 10, 11 and 12.

¶8I have considered the submissions made by both sides and also perused the materials available on record.

¶9It appears that the applicant was not travelling in the said Bolero vehicle from where the contraband articles had been seized. Further, there are no materials to Page No.# 4/7 show that there was nexus in between the applicant and the co-accused from whose possession, the said contraband articles have been recovered. No phone call data has been collected during the course of the investigation. It appears from the chargesheet submitted that the investigating officer after collection of investigation has found a prima facie case under Section 21(c) of ND&PS Act, 1985 only against the applicant for illegal possession and transporting of the contraband articles and has accordingly charged the applicant under Section 21(c) of the ND&PS Act. The applicant is not charged under Section 29 of the ND&PS Act.

¶10Section 21(c) of the ND&PS Act, provides as hereunder:- "21. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-state, exports inter-state or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,- c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees; Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]" In order to bring home the charge of Section 21(c), either, manufacturing, possession, selling, purchasing, transporting , etc, as the case may be, of any manufactured drugs has to be established.

¶11The question therefore arises for consideration is whether the applicant can be said to have conscious possession of the said contraband articles recovered from Page No.# 5/7 another vehicle, where he was not present. In the case of Union of India Vs. Md. Nawaz Khan reported in (2021) 10 SCC at page 100, the Apex Court has held in paragraph 26 as hereunder:- "What amounts to "conscious possession" was also considered in Dharampal Singh Vs. State of Punjab, 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 Vs. State of Rajasthan, 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."

¶12'Possession' in terms of the aforesaid decision of the Apex Court may not mean physical possession of the contraband articles but also mean personal knowledge as to the existence of the contraband and the intention based on this knowledge. In the present case, the contraband articles have not been seized from the vehicle in which the applicant was travelling. The Investigating Officer has arrested the applicant on the basis of suspicion. The vehicle in this case is admittedly a private vehicle. There is no materials on record to indicate that the applicant had personal knowledge as to the existence of the seized contraband articles in the said Bolero vehicle. In the absence of such materials of knowledge/intention against the applicant, no prima-facie case for transportation of such contraband articles by the applicant can be reasonably be said to have been made out. As such, the argument of Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor to the effect that the applicant had conscious possession of what is being transported in the Bolero vehicle cannot be accepted. Further, the fact Page No.# 6/7 that the concerned investigation officer has not found any materials to charge the applicant under Section 29 of the ND & PS Act, is suggestive of the fact that the applicant has no role to play in transporting the said contraband articles and as such not a conspirator or abettor to the crime in question.

¶13The ND&PS Act has to be construed in the back drop of Article 21. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual pending adjudication of the trial. There are no materials on record to indicate that the applicant when released is likely to commit any offence. Further, the trial is not likely to conclude soon.

¶14Upon analyzing and considering the totality of the case, as a whole, as well as considering the materials available on record, this court is of the opinion that there are reasonable grounds for believing that the appellant is not guilty of such offence and that he is not likely to commit any offence while on bail.

¶15In the result, the applicant is granted bail.

¶16Accordingly, the applicant/accused named above, is ordered to be released on bail in connection in connection with an offence being Excise Case No. 224/2023 dated

12.08.2023 under Section 21(c) of the ND&PS Act on furnishing bail bond of Rs. 30,000/- (Rupees Thirty thousand Only) with two suitable sureties of the like amount, to the satisfaction of the jurisdictional Special Judge, under the ND&PS Act and subject to the conditions that the applicant shall;

(a) Not take undue advantage of liberty or misuse liberty;

(b) Not act in a manner injurious to the interest of the prosecution;

(c) Surrender passport, if any, to the Special Court, ND&PS Act, Aizawl within a week; Page No.# 7/7

(d) Not leave India without prior permission of the Special Judge, Special Court, ND&PS Act, Aizawl;

(e) Appear regularly before the Special Court, ND&PS Act, Aizawl on all dates to be fixed from time to time till the case is disposed of.

(f) Furnish latest and permanent address of residence as well as mobile number to the Investigating Officer and also to the Court at the time of furnishing bail bond and shall not change the residence without prior permission of the Special Court, ND&PS Act, Aizawl.

(g) Shall refrain from committing any offences similar to the one of which he is accused.

¶17It is needless to clarify that, any observations made in this order is tentative and for the purpose of disposal of this bail application only and shall not be used for any other purpose, including in the pending trial of the case. None of the observations shall have any bearing on any other proceedings. The bail application accordingly stands allowed. JUDGE Comparing Assistant

Page No.# 1/7 GAHC030006262023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./57/2023 Sh. Golam Wazid Barbhuiya Sonai, Cachar District, Assam VERSUS State of Mizoram and Anr. Aizawl, Mizoram 2:The Officer-in-Charge Anti-Narcotics Squad Excise and Narcotics Mizoram Aizaw Advocate for the Petitioner : Mr C Lalfakzuala Advocate for the Respondent : P.P./Addl.PP, Mizoram B E F O R E HON'BLE MR. JUSTICE KAUSHIK GOSWAMI