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2019 DIGILAW 783 (GAU)

Basanta Saikia v. State of Assam

2019-06-24

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Ms. S.K. Nargis, learned counsel for the petitioner and Mr. N.J. Dutta, learned Addl. Public Prosecutor for the State/respondent. 2. This is an application u/s. 439 Cr.P.C. praying for bail by the petitioner, namely, Basanta Saikia, who is in detention in connection with Spl. (NDPS) Case No. 6/2018 corresponding to Ghilamora P.S. Case No. 40/2018 under sections 18(b)/27(a)/29 of the NDPS Act. 3. Perused the scanned copy of the report, which contains the deposition of the witnesses recorded in this case. 4. As per allegations made in the FIR, acting upon a secret information from the reliable source, the Sub-Inspector of Police Shri Hiteshwar Gogoi visited the Majgaon village and found that poppy cultivation was done on a plot of land measuring 4.5 bighas by Chitta Ranjan Mandal and Madhu Mangal Mandal. Accordingly, both of them were booked. It was also alleged that the land on which the said illegal poppy cultivation was done belonged to the present petitioner Basanta Saikia. Later on the present petitioner was also arrested on 07.07.2018 and eventually charge-sheet was laid against four persons, including the petitioner Basanta Saikia and the case is at the stage of trial. 5. Learned counsel for the petitioner submits that there was no material to show that the land, where the illegal poppy cultivation was done, belonged to the petitioner Basanta Saikia. However, the prayer for bail of the petitioner was not considered by the learned trial court, though there is no incriminating material against him. 6. It is admitted position that the offence in the instant case involved contraband articles of commercial quantity and therefore, the restriction of section 37 of the NDPS Act shall apply. It is also settled position that when the offence under the NDPS Act attracts the provision of section 37 of the Act, it becomes imperative on the part of the court to record a finding as to the requirement of section 37(1) (b) before granting or refusing bail. 7. It is also settled position that when the offence under the NDPS Act attracts the provision of section 37 of the Act, it becomes imperative on the part of the court to record a finding as to the requirement of section 37(1) (b) before granting or refusing bail. 7. 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." 8. A similar provision imposing restriction on bail has been provided under Section 21 (4) of the The Maharashtra Control of Organized Crime Act, 1999 in the case of Ranjitsing Brahmajeetsing Vs. State of Maharashtra & Anr. (supra) which reads 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." 9. The Apex 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. Delhi High Court, while considering the bail in an NDPS case, took note of the law laid down by the Honourable Supreme Court in Ranjitsing Brahmajeetsing Vs. State of Maharashtra (supra) and held as under:- "Similar provisions exist in the Maharashtra Control of Organized Crime Act, 1999 and in particular Section 21 thereof. (2005) AIR SCW 2215. Delhi High Court, while considering the bail in an NDPS case, took note of the law laid down by the Honourable Supreme Court in Ranjitsing Brahmajeetsing Vs. State of Maharashtra (supra) and held 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 Ranjitsing 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." 10. What therefore follows from the above is, if the court is satisfied on the basis of materials brought on record, that in all probabilities, the accused may not be ultimately convicted, an order of bail may be passed. The Apex Court further observed that while recording reason to come to a findings in favour of granting and refusing bail, court may not pass an elaborate judgment upon meticulous analysis of the evidence. What is necessary at the stage of bail is to arrived at a finding on the basis of broad probabilities. 11. The Apex Court further observed that while recording reason to come to a findings in favour of granting and refusing bail, court may not pass an elaborate judgment upon meticulous analysis of the evidence. What is necessary at the stage of bail is to arrived at a finding on the basis of broad probabilities. 11. Keeping in view the above principles, if we turn to the materials on record, we find that the trial has already commenced in this case and two vital witnesses being the informant police officer, who lodged the case and also another VDP Secretary of the village have been examined. Apparently as per allegations made in the FIR, the poppy cultivation was done by Chitta Ranjan Mandal and Madhu Mangal Mandal. Though, the ground of arrest against the present petitioner was that the petitioner was the owner of the land on which the poppy cultivation was done, in his evidence during trial, the informant, who was also the seizing officer, deposed that he did not verify as to who was the owner of the land, on which the poppy cultivation was done. The another vital witness, i.e., the VDP Secretary, who has been examined as PW-2 also deposed that he did not know as to who was the owner of the land, on which the poppy cultivation was done. Thus admittedly the cultivation of poppy was done by Chitta Ranjan Mandal and Madhu Mangal Mandal and no material has been brought on record to show that the land belongs to the present petitioner. In the face of the above materials, it is difficult to hold that there is any reasonable ground for believing that the petitioner may be involved in the offence of the present case, or in other words, it is also difficult to say, that ultimately the trial against the petitioner in this case will culminate in his conviction. That apart, there is also no material on record to suggest that on release of the petitioner on bail, he will commit the offence under the NDPS Act. 12. In view of the above facts and circumstances, I am inclined to grant bail to the petitioner. Accordingly, the petitioner Basanta Saikia is allowed to be enlarged on bail of Rs. 50,000/- with a solvent surety of like amount to the satisfaction of the learned trial court. 13. The bail application stands disposed of.