The Gauhati High Court dismissed an anticipatory bail application for accused Moin Uddin in an NDPS case. The court held that the applicant violated interim bail by leaving the state and failed to appear after summons, offering no new facts to justify a fresh grant.
Application for anticipatory bail under Section 438 Cr.PC is dismissed and disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC030002082022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1/2022
Moin Uddin S/o Sonab Ali R/o Village-Tilagaon P.O. Nilambazar, District Karimganj, Assam, 788722 VERSUS State of Mizoram Aizawl, Mizoram
Advocate for the Petitioner : Mr. P D Nair
Advocate for the Respondent : Mrs. Linda L Fambawl (Addl.PP, Mizoram)
BEFORE
HONOURABLE MRS. JUSTICE MARLI VANKUNG ORDER
Date : 14-06-2022
Heard Mr. A.H.Borbhuiya, learned counsel for the applicant and Mrs. Linda L.
Fambawl, learned Addl. Public Prosecutor.
2 . This is an application for release of the applicant on Anticipatory Bail under
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Section 438 of Cr.PC in Sairang P.S. case No. 12/2021 under Section 22(C)/25/29 of ND & PS Act.
3. The learned counsel for the applicant submits that the applicant is a business man and is a permanent resident of Tilagaon village, P.S. Nilambazar, District Karimganj, Assam. He is living with his family and there is no likelihood of him absconding or jumping bail, if he is granted Anticipatory Bail. The First Information Report was lodged on 2.11.2021 before the Sairang Police Station, Sairang and the learned counsel submits that the applicant is no way connected with the offence as alleged in the said FIR and that he has been un-necessarily harassed in connection with the Sairang P.S. Case No. 12 of 2021 under sections 21(C)25/29 of ND & PS Act.
4. The learned counsel further submits that no incriminating article was recovered from the possession of the applicant or from the Scooty which was loaded on the roof of a Maxi Cab (SUMO), Bearing Registration No. MZ-01-L-9897. The said Scooty was to be handed over to one person of Farkawn who is a relative of Salim Uddin of Kaligang against whom the said Scooty is registered. The incriminating seized article was not seized from him or the Scooty which he was carrying and he further submits that he is ready and willing to furnish adequate bond/surety and security for the purpose of bail and undertake to be present before the investigating authority whenever he is called upon to do so, and co-operate with the investigation. That he would not tamper with any evidence or hamper with the investigation of the case. That he had previously left the state of Mizoram while granted interim bail due to medical reasons only.
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5. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor on the other hand submits that on reading of the FIR dated 2.11.2021 submitted by SI (J.Lalchungnunga) of Sairang Police Station, the applicant is the owner of the Scooty which was loaded on the Maxi Cab B/R No. MZ-01 L-9897 which was not brand new and was not registered, this created some suspicion and while checking the Scooty, the said non mizo/applicant had disappeared in the darkness and could not be found. Therein 3(three) Nylon sacks containing some material were found lying near the vehicle about 2 meters away from the Sumo. Upon seizing the nylon sacks, they found that they contained brownish powder kept inside soap cases and were suspected to be Heroin No.4. The suspected contraband items weights 5.574 kgs and estimated to have a value of Rs.1,88,10,000/- (Rupees one crore eighty eight lakhs ten thousand only) in the local market. The suspect namely Joel Zosangliana S/o JC Vanlalvuana of Farkawn was arrested, who was the Driver of Maxi Cab and the owner of the alleged Scooty namely Moin Uddin/Applicant, r/o of Asimganj, Karimganj District, Assam was suspected to be involved in the transaction of the seized contraband. However the non Mizo namely Moin Uddin/applicant could not found though he was searched for that night and the next day.
6. The learned Addl. Public Prosecutor also submits that as per the Case diary the co-accused MoinUddin/applicant could not be contracted over phone and the accused Joel Zosangliana in his statement under Section 161 Cr.PC has implicated the instant applicant. The learned Addl. Public Prosecutor also pointed out that from the Case
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Diary, the said amount was seized article is quite substantial and the considering the grave nature of the case an application was made for the case to be handed over to NCB Guwahati, however, this application was rejected by the Special Court, ND&PS. That the applicant is now not in the state of Mizoram and is hampering the investigation of the case which is of a serious nature and has strongly objected the grant of anticipatory bail at this stage.
7. Having heard the submissions made by both the parties, it is seen that the Judge, Special Court on 15.2.2022 had granted interim bail to the applicant against the Anticipatory Bail No.18/2022 submitted by the applicant, which was however not regularized vide its Order dated 8.3.2022 on the grounds that the petitioner had violated the terms of the interim bail order passed by the Court dated 15.2.2022 by leaving the State of Mizoram without permission of this Court and the applicant had failed to be present in the court inspite of the fact that the date for hearing had been adjourned for the appearance of the applicant. The learned trial court vide its order dated 8/3/2022 had thus dismissed the Anticipatory Bail Application No.18 of 2022.
8. It is also seen that the applicant has now approached this court under section under section 438 Cr.P.C without preferring any revision against the order dated 8/3/2022 passed by the learned Special Court ND&PS. From the submission made by the learned counsel for the applicant no new facts or developments have been mentioned in approaching this court afresh under section 438 Cr.P.C.
9. From the documents available, it is seen that the nature of the case against the
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applicant is of serious nature wherein the charge is under sections 21(C)25/29 of ND
& PS Act. The suspected contraband items weights 5.574 kgs and estimated to have a value of Rs.1,88,10,000/- (Rupees One crore eighty eight Lakhs ten thousand only) in the local market.
10. It is also seen that the applicant had disappeared from the scene on the night the contraband article was seized had could not found even the next day. He had violated the condition imposed by the Special Court ND&PS Act while granting interim bail, not to leave the state till the date fixed for hearing of the anticipatory bail application and had failed to appear before the court inspite of his presence being called for during the hearing. The explanation given by the learned counsel for the applicant that the applicant had to leave the State of Mizoram during his interim bail due to medical reasons is not supported by any document.
11. Again it is seen that though the learned counsel for the applicant has stated that the applicant is a permanent resident of Tilagaon village, P.S. Nilambazar, District Karimganj, Assam, no documents in support of this claim is attached in his application.
12. The Hon’ble Supreme Court…in Gurbaksh Singh Sibbia Etc vs. State Of Punjab reported in 1980 AIR 1632, 1980 SCR (3) 383 held that:
“anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The
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nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and ‘the larger interests of the public or the state’ are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.”
13. In view of the above cited case and the aforesaid reasons mention, the
anticipatory bail application in Anticipatory Bail No.1 of 2022 is dismissed and accordingly stands disposed of.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether anticipatory bail should be granted to an applicant who violated interim bail conditions and failed to appear before the trial court.
Whether new materials were placed before the High Court in the absence of a revision against the lower court's order.
Colour shows how this judgement treated each authority
Gurbaksh Singh Sibbia Etc vs. State Of PunjabReferred¶32
1980 AIR 1632, 1980 SCR (3) 383 · Who else cites this
3 provisions across 2 enactments
Moin Uddin
State of Mizoram
Marli Vankung
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
