This High Court dismissed a bail application under Section 439 CrPC involving five accused-petitioners charged under the NDPS Act. The court held that the recovery of commercial quantity metande from a vehicle occupied by the accused failed to satisfy the requirement of reasonable grounds for releasing them on bail.
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GAHC010200512021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3163/2021
MONOWAR HUSSAIN AND 4 ORS. S/O ALMAS SHEIKH VILL- COLLEGE NAGAR
P.S. MANKACHAR DIST. SOUTH SALMARA MANKACHAR ASSAM
2: AKHIRUL ISLAM S/O ABDUR ROUF VILL- NO. 2 PUBERGAON P.S. MANKACHAR DIST. SOUTH SALMARA MANKACHAR ASSAM
3: SELIM MIAH S/O ANOWAR ZAMAL VILL- JORDANGA PART-I P.S. MANKACHAR DIST. SOUTH SALMARA MANKACHAR ASSAM
4: NUR NOBI S/O LT. GULE RAHMAN VILL- JORDANGA PART-I P.S. MANKACHAR DIST. SOUTH SALMARA MANKACHAR ASSAM
5: RAJU BEPARI S/O LT. MILJAR RAHMAN VILL- BEPARIPARA
SUKHCHA
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P.S. KUKHCHAR DIST. SOUTH SALMARA MANKACHAR ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP ASSAM
-----------Advocate for : MR. A T SARKAR Advocate for : PP ASSAM appearing for THE STATE OF ASSAM
BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 13-12-2021
Heard Mr. H.R.A Choudhury, learned Senior Counsel for the accusedpetitioners and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the respondent State of Assam.
2 . By this application filed under Section 439, Code of Criminal Procedure, 1973 [‘CrPC’ and/or ‘the Code’, for short], the accused-petitioners viz. 1) Monowar Hussain, 2) Akhirul Islam, 3) Selim Miah, 4) Nur Nobi and 5) Raju Bepari have prayed for their release on bail in connection with Mankachar Police Station Case No. 591/2021 registered for offences punishable under Sections 22[c]/24/29 of the Narcotic Drugs and Psychotropic Substances [NDPS] Act, 1985.
3 . The First Information Report [FIR] was lodged by one Assistant Sub-
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Inspector of Police attached to Mankachar Police Station on 19.07.2021. As per the FIR, an information was received on that day to the effect that a Bolero pickup van loaded with Yaba tablets was coming from Kuchnimara side and was proceeding to sell those tablets in Meghalaya. On receipt of the said information, the same was registered as General Diary Entry no. 431 dated 19.07.2021. Thereafter, a team of police personnel went to a place near R.C.C. bridge at Mirjumla with a view to set up Naka checking. During the Naka checking, a Bolero pickup van bearing registration no. ML-08/G-6203 was found proceeding from Jordanga side towards the side of Meghalaya. When search was made of the vehicle which was also loaded with vegetables, 600 nos. of suspected WY tablets contained in 3 [three] blue colour plastic packets were found behind the seat of the driver and accordingly, the same were seized in presence of independent witnesses.
4 . Mr. Choudhury, learned Senior Counsel for the accused-petitioners has submitted that though the 5 [five] accused-petitioners herein were occupants in the said Bolero pickup van but they are vegetable vendors. The accusedpetitioners were carrying their vegetables in the said Bolero pickup van in order to sell them in the market and it was not within their knowledge that the contraband substances were carried inside the vehicle.
5 . Mr. Gogoi, learned Additional Public Prosecutor who has received the case diary, has submitted that a total of 6 [six] nos. of persons comprising of the driver and the 5 [five] accused-petitioners, were occupants of the Bolero pickup van when search and seizure was carried out in presence of independent witnesses. Samples were sent to the Forensic Science Laboratory [FSL], Assam
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for examination and the results gave positive test for Metamfetamine.
6 . I have considered the submissions of the learned counsel for the parties and also perused the materials available in the case diary produced by the learned Additional Public Prosecutor.
7 . As per the materials available in the case diary, a total of 600 tablets contained in 3 [three] packets were seized from inside the Bolero pickup van during search. The samples of 25 [twenty five] nos. of tablets taken therefrom were sent to the FSL, Assam for examination and as per the FSL report dated 07.08.2021, each of the 25 [twenty five] nos. of tablets gave positive test for Metamfetamine. Entry no. 159 in the Table to the NDPS Act mentions Metamfetamine. As per the said Table, a quantity of 50 grams and above is commercial quantity. As per the FSL report, the weight of Metamfetamine per tablet is 0.1 gram, meaning thereby, the total quantity of Metamfetamine seized is 60 grams. Evidently, the total quantity of Metamfetamine seized is commercial quantity. The materials in the case diary further indicate that all the accusedpetitioners were occupants in the Bolero pickup van when the search and seizure was made at about 01-30 a.m. in the night intervening 19.07.2021 and 20.07.2021. The search and seizure was carried out in presence of independent witnesses. Each of the accused-petitioners has claimed ignorance about the existence of the packets containing the contraband.
8 . At this stage, it is apposite to refer to Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 as substituted by Act 2 of 1989 with effect from 29.05.1989 with further amendment by Act 9 of 2001, reads as follows :
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" 37. Offences to be cognizable and non-bailable .-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless –
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."
9 . It is settled law that the powers of this Court to grant bail under Section 439, CrPC are subject to the limitations contained in Section 37 of the NDPS Act, 1985 and the restrictions placed on the powers of the Court under Section 37, NDPS Act, 1985 are applicable to this Court also in the matter of granting bail.
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10 . The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. The Court while considering the application for bail with reference to Section 37 of the NDPS Act, 1985 is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and to record its satisfaction about the existence of such grounds. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act, 1985.
11 . The 5 [five] accused-petitioners were occupants in the Bolero pickup van which was intercepted by police on the basis of information received and thereafter, upon search, 3 [three] packets containing 600 nos. of tablets were found. It cannot be envisaged that existence of 3 [three] packets was not within the knowledge of the occupants inside the Bolero pickup van. Evidently, commercial quantity was recovered from inside a vehicle where the accusedpetitioners were occupants and the same was intercepted during the middle of the night.
12 . Considering the above facts and circumstances, this Court is not persuaded to reach to a finding that there are reasonable grounds for believing
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that the accused-petitioners are not guilty of the offences alleged against them. Consequently, this application for bail of the accused-petitioners is found devoid of merits and the same is dismissed.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether bail can be granted under Section 439 CrPC when the offence involves commercial quantity under the NDPS Act.
Whether the occupants of a vehicle carrying commercial quantity of narcotics can claim ignorance to satisfy 'reasonable grounds' for bail under Section 37 NDPS Act.
3 provisions across 2 enactments
MONOWAR HUSSAIN AND 4 ORS.
THE STATE OF ASSAM
MANISH CHOUDHURY
As recorded by the court registry
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