Dismissed

Lakhan Das v. the State of Assam

Gauhati HC9 Dec 2021Bail Appln./3243/2021

Case brief

AI extract

What is this about?

In a joint bail application under Section 439 CrPC, the Gauhati High Court refused release for two accused in a commercial quantity drug smuggling case. The court held that evidence established guilt and the quantity involved attracted strict restrictions on bail under the NDPS Act.

What did the court decide?

Both bail applications (B.A. no. 3243/2021 and B.A. no. 3325/2021) were dismissed as they were bereft of merit under the NDPS Act.

Lakhan Das Vs the State of Assam — Narcotics (NDPS) | Gauhati HC (2021)

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GAHC010193472021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Bail Appln./3243/2021

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LAKHAN DAS S/O LATE SURESH DAS VILL- LONGKRANG BOSTI P.S. BOKAJAN DIST. KARBI ANGLONG, ASSAM

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VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM

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Advocate for the Petitioner : MR. N DUBEY

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Advocate for the Respondent : PP, ASSAM

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Linked Case : Bail Appln./3325/2021

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MD. SHAHIJUL HOQUE S/O MD. MUNURUDDIN VILL- JOR SIMALI P.S. CHAIGAON DIST. KAMRUP (R) ASSAM

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VERSUS

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THE STATE OF ASSAM REP. BY THE PP ASSAM

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-----------Advocate for : MR. N DUBEY Advocate for : PP ASSAM appearing for THE STATE OF ASSAM

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 09-12-2021

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Heard Ms. M. Daimary, learned counsel for the accused-petitioners in B.A. no. 3243/2021 and B.A. no. 3325/2021 and Ms. S.H. Borah, learned Additional Public Prosecutor for the respondent State of Assam.

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2 . By these two applications filed under Section 439, Code of Criminal Procedure, 1973 [‘CrPC’ and/or ‘the Code’, for short], the accused-petitioners viz. Sri Lakhan Das in B.A. no. 3243/2021 and Md. Shahijul Hoque in B.A. no. 3325/2021, have prayed for their release on bail in connection with NDPS Case No. 80/2021, arising out of Barpather Police Station Case no. 30/2021, the trial in respect of which is pending presently before the Court of learned Special Judge, NDPS, Karbi Anglong, Diphu.

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3 . In deference to the previous order dated 18.11.2021 of this Court, the scanned copies of the case record and the case diary have been received.

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4 . The First Information Report [FIR] was lodged by a Sub-Inspector for Police, attached to Barpather Police Station, Karbi Anglong, on 25.05.2021. As per the FIR, a secret information was received from a source regarding smuggling of huge quantity of suspected psychotropic substances through the National Highway by a passenger bus. Upon receipt of the said information, Barpather Police Station General Diary Entry no. 443 dated 25.05.2021 was registered. Based on the information, a special check post was set up at Khakrajan and a team of police personnel started Naka checking at the said spot. A drug testing kit was also kept for testing of suspected contraband. At about 11-00 a.m., a passenger bus bearing registration no. AS-19/AC-0074 which was coming from Bokajan side towards Silonijan side on the National Highway, was intercepted. The bus as well as the passengers travelling by the bus were searched. One lady passenger who identified herself as Mrs. Rimpa Hazarika, resident of Matipul Khatkhati Tilla Bosti, Police Station – Khatkhati, District – Karbi Anglong was found carrying two travel bags. The said two travel bags were searched in presence of independent witnesses. On being searched, 64 nos. of plastic soap boxes, identical in shape and size, were found. In each of those boxes, one plastic packet was found wherein identical brown coloured power-like substance, suspected to be Heroin, was kept. The entire quantity of suspected Heroin was weighed. Those boxes and other articles were seized and said Mrs. Rimpa Hazarika was apprehended. The arrested accused, Mrs. Rimpa Hazarika was produced before the Court of learned Sub-Divisional Judicial Magistrate [M], Bokajan on 26.05.2021 and after being so produced, the arrested accused, Mrs. Rimpa Hazarika was remanded to custody. During the course of investigation, the accused-petitioner viz. Sri Lakhan Das was apprehended and after being apprehended, he was produced before the learned

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Sub-Divisional Judicial Magistrate [M], Bokajan on 24.06.2021. On the other hand, the accused-petitioner viz. Md. Shahijul Hoque was apprehended and after being apprehended, he was produced before the learned Sub-Divisional Judicial Magistrate [M], Bokajan on 28.05.2021. Since their remand to custody, both the accused-petitioners viz. Sri Lakhan Das and Md. Shahijul Hoque are in custody till date.

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5 . The seized contraband substances, suspected to be Heroin, having a net weight of 794.44 grams were produced before the Court of learned Judicial Magistrate, First Class, Bokajan on 27.05.2021 and respective samples were taken. The samples were then, forwarded to the Forensic Science Laboratory [FSL], Assam, Guwahati for chemical examination and opinion. During the course of investigation, another accused person viz. Mrs. Th. Phane @ Didi was shown arrested on 22.07.2021. The Forensic Science Laboratory [FSL] gave its opinion on 19.06.2021. As per the FSL report, the samples gave positive test for Heroin and the percentage of Heroin was found to be 78.68%. A number of other items/documents including Bank passbooks, mobile phones, etc. of the accused persons were seized. Call record details along with requisite certificates under Section 65B, Information Technology Act, 2000 were collected. The statements of Accounts in respect of the bank accounts of the accused persons were sought for from the concerned banks under Section 91, CrPC. After completion of investigation, the Investigating Officer of the case submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 18/2021 dated 31.07.2021 against four accused persons including the present two petitioners.

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6 . Ms. Daimary, learned counsel for the accused-petitioners has submitted

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that the contraband articles were not seized from the direct possession of any of the two accused-petitioners. Moreover, the investigation of the case has already been completed and their release on bail at the stage of trial is not going to hamper the course of trial and they may be released on bail considering their prolonged detention.

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7 . Opposing the said prayer, Ms. Borah, learned Additional Public Prosecutor has submitted that the charges against the accused-petitioners have already been framed and the offences involve commercial quantity of contraband i.e. Heroin. Considering the materials available in the case diary, there is no reasonable ground to hold that the accused-petitioners are not guilty of the offences.

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8 . I have considered the submissions of the learned counsel for the parties and also perused the materials available in the case records [scanned copy] of NDPS Case no. 80/2021.

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9 . As per the status report of NDPS Case no. 80/2021 furnished by the learned Special Judge, NDPS, Karbi Anglong, Diphu, charges have been framed against the accused-petitioner viz. Sri Lakhan Das under Sections 21[c]/23[c] r/w Section 29 of the NDPS Act and against the accused-petitioner viz. Md. Shahijul Hoque under Sections 21[c]/23[c]/27A r/w Section 29 of the NDPS Act on 30.10.2021 and the case i.e. NDPS Case no. 80/2021 is pending at the stage of evidence.

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10 . From the materials on record, it is prima facie evident that the quantity of

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Heroin involved in the case in hand is commercial quantity.

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11 . 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 .-

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(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

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(a) every offence punishable under this Act shall be cognizable;

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(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 –

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(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

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(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.

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(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."

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12 . It is settled law vide Narcotics Control Bureau vs. Kishan Lal and others, [1991] 1 SCC 705 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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13 . Section 37 of the NDPS Act, 1985 starts with a non-obstante clause. Keeping the non-obstante clause in mind, a reading of sub-section (2) of Section 37 of the NDPS Act, 1985 makes it clear that the power to grant bail to a person accused of having committed an offence either under Section 19 or Section 24 or Section 27A and also offences involving commercial quantity under the NDPS Act, 1985 is not only subject to the limitations imposed under Section 439, CrPC, it is also subject to the restrictions placed by sub-clause (b) of subsection (1) of Section 37 of the NDPS Act, 1985. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other two conditions viz. (i) the satisfaction of the Court that there are “reasonable grounds” for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. In other words, these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail. The operative part of Section 37, NDPS Act, 1985 is in the negative form. Such stringent restrictions have been put on the discretion of the Court for considering application for release of a person accused of offences prescribed therein by the Legislature consciously in view of the seriousness of the offences. The conditions mentioned in Section 37 of the NDPS Act, 1985 are cumulative and not alternative. The satisfaction contemplated regarding the accused being

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not guilty, has to be based on "reasonable grounds".

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14 . In Satpal Singh (supra), the restrictions placed on the discretion to be exercised by the Court while considering an application for bail, by way of Section 37, NDPS Act, 1985 have been reiterated. It has been observed that before allowing a bail application, the Court must be satisfied that there are “reasonable grounds” for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. The Court has held that these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail.

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15 . 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 [Collector of Customs, New Delhi vs. Ahmadalieva Nodira, [(2004) 3 SCC 579 and State of Kerala etc. vs. Rajesh etc., [AIR 2020 SC 721]. 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

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aspects, noted above, is sine qua non for granting of bail under the NDPS Act, 1985.

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16 . In an application for bail involving contraband of commercial quantity which brings in the limitations prescribed in Section 37 of the NDPS Act, 1985, it is not the period of detention but the merits qua the twin conditions laid down in Section 37 of the NDPS Act, 1985 which are required to be considered.

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17 . From the materials on record, it has emerged that the owner of the bus bearing no. AS-19/AC-0074 had asked the driver of the bus to drive the bus to Dimapur with a consignment of apples and the said consignment was booked by a person named Md. Shahijul Hoque at the Inter-State Bus Terminus [ISBT], Guwahati. When the bus was returning back from Dimapur to Guwahati it was stopped at a place near Saila Mandir, Khatkhati and at that place, two lady passengers boarded into the bus. One of them carried two nos. of travel bags. It was the said lady passenger, later on identified as Mrs. Rimpa Hazarika who was found carrying the two travel bags containing 64 packets of Heroin. There were only three passengers inside the said bus at the time when it was intercepted. Independent witnesses have stated to the effect that the accusedpetitioner viz. Sri Lakhan Das had visited the house of Mrs. Rimpa Hazarika on the previous date carrying travel bags to her house. Sri Lakhan Das visited the house of Mrs. Rimpa Hazarika along with another person by a Santro Car bearing no. AS-15/B-6809, which was later on recovered from the house of the accused-petitioner viz. Sri Lakhan Das. The accused-petitioner viz. Sri Lakhan Das left the bag in the house of Mrs. Rimpa Hazarika. Independent witnesses had stated that the accused-petitioner viz. Sri Lakhan Das used to visit the

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house of Mrs. Rimpa Hazarika often. From the materials collected from the mobile phones of the arrested accused persons, it has emerged that there were frequent contacts amongst the accused persons including the present two accused-petitioners. From the accounts statement of Sri Lakhan Das, transactions amounting to Rs. 76,47,269.87/- were found during the period from 01.01.2019 to 03.06.2021. The statements of accounts of the arrested accused Mrs. Rimpa Hazarika revealed the deposit of Rs. 19,61,014/- during the period from 01.01.2021 to 30.06.2021 though she is a housewife, having no known source of income. The call detail records of the mobile phones of the arrested accused persons revealed good number of telephonic conversations between each of them. The materials indicate that arrested accused, Mrs. Rimpa Hazarika used to carry contrabands from Dimapur to the ISBT, Guwahati where she used to hand over the contraband items to the accused-petitioner viz. Md. Shahijul Hoque. It is further revealed that Md. Shahijul Hoque made payments of Rs. 4,05,000/- on 04.02.2021, Rs. 3,51,000/- on 10.02.2021, Rs. 2,70,000/on 21.02.2021, Rs. 2,70,000/- on 26.02.2021, Rs. 30,97,500/- on 04.03.2021 and many other amounts in the bank accounts of the arrested accused, Mrs. Rimpa Hazarika through online transactions.

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18 . From a perusal of the materials on record, as have been briefly outlined above, this Court is not persuaded to hold a view that the accused-petitioners are not guilty of the offences for which charges have been framed against them and the quantity of contraband involved is commercial quantity. In view of the above, this Court finds both the applications bereft of any merits. Consequently, the same are dismissed.

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19 . It is, however, made clear that the observations made above are only in respect of consideration of the two accused-petitioners’ prayer for bail and none of the observations made in this order shall have any bearing on the trial of the accused-petitioners.

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JUDGE

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Comparing Assistant

Lakhan Das v. the State of Assam

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Lakhan Das v. the State of Assam

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