Santosh Chetry and Anr. Vs the State of Assam

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GAHC010004272025

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2025:GAU-AS:1271

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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./158/2025

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SANTOSH CHETRY AND ANR S/O LATE DOMBOR BH. CHETRY, R/O NO. 3, UDAIPUR KUHIARBARI, P.S. LEKHAPANI PIN CODE- 786179 DIST. TINSUKIA 2: REKHA CHETRY W/O SANTOSH CHETRY R/O 3 NO. UDAIPUR KUHIARBARI P.S. LEKHAPANI DIST. TINSUKIA PIN-78617 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM

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Advocate for the Petitioner : MR. K K DEY, MR V K BAROOAH

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Advocate for the Respondent : PP, ASSAM,

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BEFORE

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HONOURABLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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Date : 07.02.2025

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Heard Mr. K.K. Dey, learned counsel for the accused and Mr. P.S. Lahkar, learned Additional Public Prosecutor, Assam, appearing for the State respondent.

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2. This application under Section 483 of the BNSS, 2023, is preferred by accused, namely, 1. Santosh Chetry, and 2. Rekha Chetry, who have been languishing in jail hazot, in connection with NDPS Case No. 38/2024, arising out of Lekhapani P.S. Case No. 21/2024, under Section 21(c)/29 of NDPS Act, 1985, pending in the Court of learned Additional Sessions Judge (FTC) No.1, (NDPS)cum- Special Judge, NDPS, Margherita, Tinsukia, for grant of bail.

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3. It is to be noted here that, above noted case has been registered on the basis of one FIR lodged by one SI (P), namely, Pranjal Phukan of Lekhapani P.S. on 06.05.2024. The allegation in the F.I.R dated 06.05.2024, is that acting on a tip off, the informant with other staffs, on 05.05.2024, at about 4.30 P.M. apprehended one Dipak Chetry and Bimal Chetry, with one motor cycle, while they were handing over drugs to another accused, namely, Tez Bahadur Chetry, near Phaneng Keniya Bridge, 2 No. Udaipur and recovered 10 soap boxes containing suspected Heroine, in white colour carry bags, weighing 112 grams in the said soap boxes and seized the same in presence of witnesses. Thereafter, search was conducted in the house of Dipak Chetry and recovered 14 packets of suspected Heroine in 14 soap boxes, in one Almirah placed at the corner of the house and on weighing the same; they found its weight to be 164 grams and thereafter, seized the same in the presence of the witnesses. And during preliminary enquiry, it has been found that aforementioned accused

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persons had collected the said contraband substances from Santosh Chetry and Rekha Chetry of No. 3 Udaypur village.

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4. Mr. Dey, learned counsel for the accused submits that the accused are innocent and no way involved with the offence alleged in the FIR and nothing has been recovered from their possession and that they are languishing in jail hazoot since 06.05.2024 and that they are ready to co-operate with the investigating agency and that except the statement of the co-accused no incriminating materials are there and that the statement of the co-accused is not admissible in evidence and that the accused are behind the bar for more than six months and therefore, it is contended to allow this petition.

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5. On the other hand, Mr. Lahkar, learned Additional Public Prosecutor, Assam, submits that the I.O., during investigation had collected sufficient materials against the accused persons and that the case is pending at the stage of framing of charge and if the accused are enlarged on bail at this stage, it will cause delay in trial. Therefore, Mr. Lahkar, learned Additional P.P. has contended to dismissed the petition.

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6. Having heard the submission of learned Advocates of both the parties, I have carefully gone through the petition and the documents placed on record and also perused the scanned copy of the record along with the up-to-date status report with the assistance of Mr. Lahkar, learned Additional P.P.

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7. It appears that nothing has been recovered from the possession of the present accused. And it also appears that they were arrested on the basis of statement of the co-accused. Though nothing has been recovered from the possession of the accused yet there are materials to show that the co-accused persons had collected the materials from the present accused person and as

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such the charge sheet was submitted under section 29 of the Act besides Section 21(C). Further, it appears that the contraband substances allegedly recovered from the possession of co-accused are of commercial quantity i.e. ( 112 grams + 164 grams= 276 grams). And since the total quantity of contraband substances recovered here in this case is of commercial quantity as such the embargo under Section 37 of the NDPS Act would come into play here in this case and the accused have to satisfy the requirement of twin requirement of Section 37 of the NDPS Act.

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7.1. But, from the submissions of learned counsel for the accused and also from the scanned copy of the record this court is unable to derive satisfaction that the accused are not guilty of the offence and that they will not commit any offence while on bail.

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7.2. And unless these two conditions are satisfied with, the accused cannot be released on bail, as held by Hon’ble Supreme Court in the case of Union of India vs. Ajay Kumar Singh @ Pappu , in Criminal Appeal No. 952 of 2023 [Arising out of SLP (CRL.) No.2351 of 2023] and also in the case of Narcotics Control Bureau vs. Kashif, in Criminal Appeal No. 5544 of 2024 [arising out of Special Leave Petition (Crl.) No. 12120 of 2024].

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8. It is to be noted here that in the case of Ajay Kumar Singh @ Pappu (Supra) , the Hon’ble Supreme Court has held as under:-

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“ In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not

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guilty of such an offence and that he is not likely to commit any offence while on bail.”

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9. It is also to be note here that in the case of Kashif (Supra) , Hon’ble Supreme Court has held as under:

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“ 39. The upshot of the above discussion may be summarized as under:

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(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

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(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.

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……………………………………………… ...”

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10. Considering above and also the nature and gravity of the offence allegedly committed by the present accused involving commercial quantity of the contraband substances and its impact upon the society as well as collective interest of the society and when the same are balanced against the individual interest of the accused, the delay cannot be a persuasive ground for granting bail. [See – NCB vs. Mohit Agarwal , reported in (2022) 0 Supreme (SC) 619 ].

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11. In the result, I find this petition bereft of merit and accordingly, the petition stands dismissed .

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12. However, the learned trial court is requested to expedite the trial and conclude the same as soon as practicable, without granting any adjournment to either of the parties.

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13. In terms of above, this bail application stands dismissed.

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JUDGE

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Santosh Chetry and Anr. v. the State of Assam

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