Bench dismissed bail application for three petitioners arrested for transporting heroin under NDPS Act. Court rejected prayer, noting petitioner had prior NDPS conviction and failed to establish reasonable grounds believing he was not guilty or likely to re-offend on bail.
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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GAHC010011222023
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./234/2023
MD JAKIR HASSAN @ JAKIR HUSSAIN AND 2 ORS SON OF HAZRAT ALI R/O VILL- PANDIT GHAT DHARAMSALA P.S. KACHUA DIST. NAGAON, ASSAM
2: MD SADDAM HUSSAIN S/O ABDUSH SAMAD R/O VILL- SONARGURI P.S. KACHUA DIST. NAGAON ASSAM
3: MD. SAHIDUL @ SAHIDUL ISLAM S/O ABDUL LATIF R/O VILL- SIMALUGURI P.S. KACHUA DIST. NAGAON ASSA VERSUS
THE STATE OF ASSAM REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR J C BORAH
Advocate for the Respondent : PP, ASSAM
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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 10.02.2023
Heard Mr. J.C. Borah, learned counsel for the petitioners and also heard Mr. R.J. Baruah, learned Addl. P.P. for the State.
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(i) that he was called by the police at 4.10 pm for going to Karkat Basti near petrol pump and accordingly, he had gone there with PW nos. 2 and 3, and on reaching there PW-1 saw people gathered there and the three persons were kept sitting in a police vehicle, and he saw one bag on the road side near the police vehicle. The locals told them that the bag was found in possession of the persons kept sitting in the police vehicle. The bag contained 42 plastic pouches with heroin and the bag and drugs were seized by the police. However, in his cross examination, the PW-1 had admitted that he did not know from whom the bag was recovered and that he had not seen the police in recovery of the bag and also could not say who were kept seated in the police vehicle.
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examination by the petitioners that he did not go through the contents of the seizure list and the same was not read over to him and that he did not give statement (Ext.P-2) to the police.
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“ 21 . In Gudikanti Narasimhulu v. Public Prosecutor, A.P. High Court, (1978) 1 SCC 240, Krishna Iyer, J., while elaborating on the content and meaning of Article 21 of the Constitution of India, has also elaborated the factors that have to be considered while granting bail which are extracted as under:
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22 . Prahlad Singh Bhati v. NCT of Delhi & Ors., (2001) 4 SCC 280 is a case wherein this Court proceeded to state the following principles which are to be considered while granting bail:
"4.(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
23 . This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598, speaking through Banerjee, J., observed as under:
24 . In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr., (2004) 7 SCC 528, this Court observed in paragraph 11 as under:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly, where the accused is charged of having committed a serious offence. Any
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order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
25 . Gobarbhai Naranbhai Singala v. State of Gujarat & Ors., (2008) 3 SCC 775, is a case which concerns cancellation of bail by this Court in a petition filed under Article 136 of the Constitution of India. In the said case reliance was placed on Panchanan Mishra v. Digambar Mishra - (2005) 3 SCC 143 wherein in para 13 it was observed as under:
"13. The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime-It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation."
26 . Further on referring to the State of UP v. Amarmani Tripathi, (2005) 8 SCC 21, this Court noted the facts of the case therein to the effect that the respondent therein had been named in ten other criminal cases in the last 25 years or so, out of which five cases were under section 307 IPC for attempt to murder and another under section 302 IPC for committing murder. That in most of the cases he was acquitted for want of sufficient evidence. Without saying anything further this Court noted that the High Court in the said case completely ignored the general principle for grant of bail in a heinous crime of commission of murder in which the sentence, if convicted, is death or life imprisonment.
27 . It was further observed that in the impugned order therein the findings recorded touched upon the merits of the case and the learned Judge had proceeded as if an order of acquittal was being passed, contrary to what had been said in Amarmani Tripathi (supra) which is that only a brief examination has to be made to satisfy about the facts and circumstances or a prima facie case.
28 . This Court in Ash Mohammad v. Shiv Raj Singh @ Lalla Bahu & Anr., (2012) 9 SCC 446, observed that though the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and
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the criminal antecedents. That these are to be weighed in the scale of collective cry and desire and that societal concern has to be kept in view in juxtaposition to individual liberty, was underlined.
29 . In Neeru Yadav v. State of UP & Anr., (2016) 15 SCC 422, after referring to a catena of judgments of this Court on the consideration of factors for grant of bail observed through Dipak Misra, J. (as His Lordship then was) in paragraphs 15 and 18 as under:
"15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightning having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner.
30 . In Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129, this Court has spelt out some of the significant considerations which must be placed in the balance in deciding whether to grant bail:
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from an application for cancellation of bail by quoting Mahipal v. Rajesh Kumar (2020) 2 SCC 118:
"16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted."
32 . On the aspect of the duty to accord reasons for a decision arrived at by a court, or for that matter, even a quasi-judicial authority, it would be useful to refer to a judgment of this Court in Kranti Associates Private Limited & Anr. v. Masood Ahmed Khan & Ors., (2010) 9 SCC 496, wherein after referring to a number of judgments this Court summarised at paragraph 47 the law on the point. The relevant principles for the purpose of this case are extracted as under:
32.1 Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
32.2 Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
32.3 Reasons reassure that discretion has been exercised by the decisionmaker on relevant grounds and by disregarding extraneous considerations. 32.4 Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
32.5 The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
32.6 Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
32.7 Insistence on reason is a requirement for both judicial accountability and transparency.
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32.8 If a judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
32.9 Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
32.10 It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. [See David Shapiro in Defence of Judicial Candor, (1987) 100 Harvard Law Review 731- 37].
32.11 In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".
33 . Though the aforesaid judgment was rendered in the context of a dismissal of a revision petition by a cryptic order by the National Consumer Disputes Redressal Commission, reliance could be placed on the said judgment on the need to give reasons while deciding a matter.
34 . The Latin maxim "cessante ratione legis cessat ipsa lex" meaning "reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself", is also apposite.
35 . While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-àvis the offence/s alleged against an accused.
36 . We have extracted the relevant portions of the impugned orders above. At the outset, we observe that the extracted portions are the only portions forming part of the "reasoning" of the High court while granting bail. As noted from the aforecited judgments, it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage and the
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allegations of the offences by the accused would not have been crystalised as such. There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. At the same time, a balance would have to be struck between the nature of the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.
37 . Ultimately, the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the accused on the one hand and ensuring purity of the trial of the case on the other.
38 . Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”
13 . The expression 'reasonable ground' came up for discussion in ' State of Kerala and others Vs. Rajesh and others', (2020) 12 SCC 122 and this Court has observed as below:
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Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
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on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.
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bail is rejected.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether bail should be granted to petitioners charged with possession and transport of heroin under the NDPS Act given their prior criminal record and lack of reasonable grounds to believe they are no
Whether the High Court erred in not evaluating the evidentiary value of seizure witnesses while considering the bail application under the NDPS Act.
Whether the petitioners have shown reasonable grounds for believing they are not guilty of the alleged offence to satisfy the requirements of Section 37 of the NDPS Act.
Colour shows how this judgement treated each authority
Gudikanti Narasimhulu v. Public Prosecutor, A.P. High CourtReferred¶33
Gudikanti Narasimhulu v. Public Prosecutor, A.P. High Court, (1978) 1 SCC 240 · Who else cites this
Brijmani Devi v. Pappu KumarReferred¶32
Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 · Who else cites this
Prahlad Singh Bhati v. NCT of Delhi & Ors.Explained¶38
Prahlad Singh Bhati v. NCT of Delhi & Ors., (2001) 4 SCC 280 · Who else cites this
Ram Govind Upadhyay v. Sudarshan SinghApplied¶42
Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 · Who else cites this
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr.Referred¶44
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr., (2004) 7 SCC 528 · Who else cites this
Gobarbhai Naranbhai Singala v. State of Gujarat & Ors.Referred¶50
Gobarbhai Naranbhai Singala v. State of Gujarat & Ors., (2008) 3 SCC 775 · Who else cites this
State of UP v. Amarmani TripathiReferred¶52
State of UP v. Amarmani Tripathi, (2005) 8 SCC 21 · Who else cites this
Ash Mohammad v. Shiv Raj Singh @ Lalla Bahu & Anr.Referred¶54
Ash Mohammad v. Shiv Raj Singh @ Lalla Bahu & Anr., (2012) 9 SCC 446 · Who else cites this
Neeru Yadav v. State of UP & Anr.Referred¶57
Neeru Yadav v. State of UP & Anr., (2016) 15 SCC 422 · Who else cites this
Anil Kumar Yadav v. State (NCT of Delhi)Referred¶61
Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 · Who else cites this
Bhoopindra Singh v. State of Rajasthan & Anr.Referred¶63
Bhoopindra Singh v. State of Rajasthan & Anr. (2021) 17 SCC 220 · Who else cites this
Mahipal v. Rajesh KumarReferred¶65
Mahipal v. Rajesh Kumar (2020) 2 SCC 118 · Who else cites this
Kranti Associates Private Limited & Anr. v. Masood Ahmed Khan & Ors.Applied¶67
Kranti Associates Private Limited & Anr. v. Masood Ahmed Khan & Ors., (2010) 9 SCC 496 · Who else cites this
State of Kerala and others Vs. Rajesh and othersReferred¶88
State of Kerala and others Vs. Rajesh and others, (2020) 12 SCC 122 · Who else cites this
Narcotics Control Bureau v. Mohit AggarwalExplained¶87
Narcotics Control Bureau v. Mohit Aggarwal, AIR 2022 SC 3444 · Who else cites this
Tofan SinghReferred¶94
Tofan Singh
3 provisions across 2 enactments
MD JAKIR HASSAN @ JAKIR HUSSAIN AND 2 ORS
THE STATE OF ASSAM REP. BY THE PP, ASSAM
KALYAN RAI SURANA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
