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2019 DIGILAW 768 (GAU)

Nurezzaman Islam v. State of Assam

2019-06-19

MIR ALFAZ ALI

body2019
ORDER : Mir Alfaz Ali, J. 1. Heard Mr. S.K. Talukdar, learned counsel for the petitioner and Mr. S.C. Keyal, learned Standing Counsel for the Narcotics Control Bureau (NCB). Also perused the report of the prosecution agency. 2. This is an application u/s. 439 Cr.P.C. praying for bail by the petitioner, namely, Nurezzaman Islam @ Nurajjaman, who is in detention in connection with NCB (Crime) Case No. 3/2019 under sections 21(c)/22(c)/29 of the NDPS Act, 1985. 3. Learned counsel for the petitioner Mr. Talukdar submits that no contraband substance was seized from the possession of the petitioner, nor any cogent material could be brought on record to connect the present petitioner with the offence of this case, except a statement of the co-accused purportedly recorded u/s. 67 of the NDPS Act. The contention of the learned counsel is that one cannot be convicted for a serious offence, like the one under the NDPS Act, which provides stringent punishment, solely on the basis of a so-called confession of a co-accused. 4. Resisting the prayer of bail of the petitioner, learned standing counsel Mr. Keyal contends, that the restrictions of section 37 of the NDPS Act applies in this case, as the contraband substances seized were of commercial quantity. Learned counsel further contends that the petitioner himself admitted his involvement in the illegal trafficking of contraband substance during statement recorded u/s. 67 of the NDPS Act, and as such, he is not entitled to the privilege of bail. 5. Undisputed position is that, commercial quantity of contraband substance is involved in this case and as such, the restriction of section 37 of the NDPS Act shall apply. Therefore, in terms of the provision of section 37 and also in view of the decision of the Supreme Court in Satpal Sing Vs. State of Punjab, (2018) 13 SCC 813 , it is imperative on the part of the court to record a finding as to it's satisfaction as per section 37 of the NDPS Act, before granting or refusing bail. The Apex Court in Satpal Singh Vs. State of Punjab (supra) observed as under:- "15. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. The Apex Court in Satpal Singh Vs. State of Punjab (supra) observed as under:- "15. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Section 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not been entered, the order dated 21.09.2017 is only to be set aside and we do so." 6. Section 37 (i) (b) of the NDPS Act reads as under:- "(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- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is Crl.M.C. 6222/15 & con. cases 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." 7. A similar provision imposing restriction on bail has been provided under Section 21 (4) of the The Maharastra Control of Organized Crime Act, 1999, which is as under:- "(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act, shall, if in custody, be released on bail or on his own bond, unless- (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and (b) 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." 8. The Supreme Court had the occasion to consider the above provision of the Maharashtra Control of organized Crime Act, 1999 in great detail, in the case of Ranjitsing Brahmajeetsing Vs. State of Maharashtra & Anr. The Supreme Court had the occasion to consider the above provision of the Maharashtra Control of organized Crime Act, 1999 in great detail, in the case of Ranjitsing Brahmajeetsing Vs. State of Maharashtra & Anr. (2005) AIR SCW 2215, where the Apex Court observed as under:- "Similar provisions exist in the Maharashtra Control of Organized Crime Act, 1999 and in particular Section 21 thereof. The Supreme Court in the recent case of Ranjitsigh Brahmajeetsing Sharma v State of Maharashtra and another 2005 AIR SCW 2215 had occasion to consider the said provision in great detail. In that provision also restrictions on the power of the court to grant bail have been imposed. However, the Supreme Court observed that the restrictions on the power to grant bail should not be pushed too far and it was of the opinion that if the court, having regard to the materials brought on record, is satisfied that in all probability the accused may not be ultimately convicted, an order granting bail may be passed. It further held that the satisfaction of the court as regards his likelihood of not committing any offence while on bail must be construed to mean an offence under the very Act and not any offence whatsoever be it a minor or major offence. It further observed that for the purpose of considering the application for grant of bail, although detailed reasons are not necessary to be assigned the order granting bail must demonstrate an application of mind, at least in serious cases, as to why the applicant has been granted or denied the privilege of bail. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities." 9. The Apex Court was of the opinion that restriction imposed in section 21 (4) of the Maharashtra Control of Organized Crime Act, 1999, does not imply, that court must give a positive finding that the person seeking bail has not committed the offence. The Apex Court was of the view, that if the court on the basis of materials brought on record, is satisfied that in all probabilities the accused may not be ultimately convicted, an order granting bail may be passed. The Apex Court was of the view, that if the court on the basis of materials brought on record, is satisfied that in all probabilities the accused may not be ultimately convicted, an order granting bail may be passed. It further held that the satisfaction of the court as regards the likelihood of not committing any offence while on bail, must be also construed to mean an offence under the NDPS Act and not any offence whatsoever be it a minor or major offence. It further observed that for the purpose of considering the application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate as to why the bail has been granted or denied. The court also observed that, the duty of the court at this stage "is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities". 10. Keeping in view the above principle, let me consider the prayer for bail of the petitioner on the basis of materials brought on record. Pankaj Kr. Chauhan Intelligence Officer, NCB received a secret information on 25.02.2019, that one Mograb Ali along with his two accomplice Jiaur Rahman and Abdul Matleb Mir were going to transport huge quantity of Recofex codeine based cough syrup by his own vehicle bearing registration no. 26-B/5506 from Guwahati to Dhubri. Pursuing the said information, the NCB team intercepted the above mentioned vehicle and found accused Magrab Ali, Jiaur Rahman and Abdul Matleb Mir in the vehicle and seized 600 bottles of codeine based ASLAC of cough syrup, 1200 bottles of codeine based Recofex cough syrup and 758 methamphetamine tablet (68 gms) from the above three accused persons. Evidently no contraband article was seized from the possession of the present petitioner, nor he was present at the place of occurrence. According to the learned Standing Counsel for the NCB petitioner was arrested on the basis of statement of the co-accused Magrab, who stated in his statement purportedly recorded u/s. 67 of the NDPS Act, that he would sell 68 gms of methamphetamine tablets to the present petitioner. The petitioner in his statement purportedly recorded u/s. 67 of the NDPS Act denied such averment of the co-accused Magrab. The petitioner in his statement purportedly recorded u/s. 67 of the NDPS Act denied such averment of the co-accused Magrab. Therefore, materials on record clearly show that no contraband involved in this case was recovered or seized from the possession of the present petitioner, inasmuch as, admittedly all the contraband, i.e., 18000 bottles of cough syrup and 758 methamphetamine tablets were seized from the possession of the other co-accused as mentioned above. Except the purported statement of co-accused Magrab Ali recorded u/s. 67 NDPS Act, that he was suppose to sell the 68 gms of methamphetamine tablets to the present petitioner, which was denied by him, no other material has been brought on record to connect the present petitioner with the recovery of contraband or the offence of the present case. In view of the above material, it is difficult to hold that the trial against the present petitioner may in all probabilities culminate in conviction. Therefore, I am satisfied that there is no reasonable ground to believe that the petitioner may be ultimately held liable for the offence of this case. There is also no other cogent material to suggest that in the event of enlargement on bail, the petitioner shall commit the offence under the NDPS Act. 11. One must not loose sight of the fact that rejection of bail ultimately affects the right to liberty of a person. Though the right to liberty enshrined in Article 21 of the Constitution is not absolute and is subject to reasonable restriction, in order to deprive a person of his liberty, there must be reasonable ground. Article 21 of the Constitution cannot be put to challenge on fanciful ground or in a light manner. 12. Having regard to the entire materials brought on record as indicated above, I am inclined to grant bail to the petitioner. Accordingly, the petitioner above-named is allowed to be enlarged on bail of Rs. 20,000/- with a solvent surety of like amount to the satisfaction of the learned Special Judge, NDPS, Kamrup(Metro). The bail application stands disposed of.