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2022 DIGILAW 1062 (GAU)

Mahmudul Hassan Khan v. State of Assam

2022-09-20

AJIT BORTHAKUR

body2022
JUDGMENT : Ajit Borthakur, J. Heard Mr. N. Uddin learned counsel for the accused petitioner as well as Mr. B.B. Gogoi, learned Addl. P.P., Assam for the State respondent. 2. By this petition under Sec. 439 Cr.P.C., the accused-petitioner, namely, Mahmudul Hussain Khan @ Mahmudul Hasan Khan, has prayed for grant of bail in connection with Dhubri P.S. Case No.1997/2021 under Sec. 22 ( c) of the NDPS Act. 3. The scanned copy of the petition filed by the investigating officer, as called for, by order, dtd. 30/8/2022, is received. 4. Mr. N. Uddin, learned counsel for the accused petitioner, submits that the accused has been in judicial custody for 273 days despite he was entitled to be released on default bail under Sec. 36 A (4) proviso of the NDPS Act as he completed the statutory period of detention on 19/6/2022 on completion of 180 days in judicial custody since his remand. Mr. Uddin submits that as required, the learned Public Prosecutor did not submit any report indicating the progress of investigation for extension of time beyond 180 days for completion of investigation and no notice of hearing was given to the accused. Mr. Uddin submits that instead thereof, the investigating officer filed an objection against grant of bail to the accused that too after completion of 180 days without making any prayer for extension of time beyond 180 days for completing the investigation. However, the learned trial court by order, dtd. 20/6/2022, passed in Misc. Criminal Case No. 721/2022, rejected the accused's default bail and extended the period of investigation, beyond 180 days to 01(one) year based on the investigating officer's bail objection. 5. Opposing the bail application, Mr. R.J. Baruah, learned Additional Public Prosecutor, submits that the learned trial Judge, on consideration of the petition filed by the investigating Officer informing the court to the effect that the investigation was on and another accused remained to be apprehended as well as hearing the learned Public Prosecutor and the learned counsel for the accused, extended the period of investigation beyond 180 days to complete it on the 181st day of his detention. Therefore, Mr. Boruah submits that the accused petitioner is not entitled to be released on default bail. 6. Therefore, Mr. Boruah submits that the accused petitioner is not entitled to be released on default bail. 6. The prosecution case, in brief, is that on 20/12/2021, the informant along with his staff on the basis of a reliable information conducted checking of vehicles and duty stopped a vehicle coming from Gauripur side towards Dhubri town and recovered contraband items Pyeevon Spas Plus Capsules 7000 nos. and Nitrosum R 10 Tablets 400 nos. from the present accused petitioner and another co-accused. 7. It is noticed that the accused petitioner has been in judicial custody for 273 days since he was remanded in judicial custody on 21/12/2021 vide order in the case. Now, the date of first remand has to be excluded from the counting period of judicial custody for the purpose of Sec. 36 A (4) of the NDPS Act. Computed thus, the accused petitioner completed 180 days on 19/6/2022, that is, the date till which the investigating officer had the right to continue and complete the investigation in the case. Beyond the 180 days of aforesaid detention period, started on and from the date 20/6/2022 that is, 181st day. 8. The period of detention in cases involving commercial quantity under the NDPS Act is regulated by 36 A (4) of the said Act as extracted herein below : "(4): In respect of persons accused of an offence punishable under sec. 19 or sec. 24 or sec. 27A or for offences involving commercial quantity the references in sub-sec. (2) of sec. 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days." 9. A perusal of the above provision shows that the principle of the proviso to Sub-Sec. (2) of Sec. 167 CrPC is applicable to the provision provided in Sub-Sec. (4) of the Sec. 36 A of the NDPS Act. A perusal of the above provision shows that the principle of the proviso to Sub-Sec. (2) of Sec. 167 CrPC is applicable to the provision provided in Sub-Sec. (4) of the Sec. 36 A of the NDPS Act. It has been provided that the statutory period of detention of 180 days may be extended to total 01 (one) year by the Special court only on the report of the Public Prosecutor indicating (a) the progress of the investigation and (b) citing specific reasons for extended detention. 10. In the instant case, the indefeasible right to bail in favour of the accused petitioner accrued on 20/6/2022, after completion of the detention period of 180 days on 19/6/2022. However, on the following day, that is, on the 181st day, the aforesaid period beyond 180 days for completion of investigation was extended to 01 (one) year. 11. However, on 20/6/2022 itself, the accused petitioner filed petition No.626 under Sec. 437 CrPC for granting bail on the ground that he completed the statutory period of detention and on the other hand, the investigating officer of the case, on the same day, submitted bail objection showing in detail the progress of investigation, and thereupon, the learned Additional Public Prosecutor moved the aforesaid petition before the Court of learned Special Judge (NDPS Act), Dhubri. 12. For convenience, the aforesaid petition of the investigating officer, dtd. 20/6/2022, addressed to the learned Court reads as under : "To The Hon'ble Dist. and Sessions Judge, Dhubri Dated Dhubri the 20 th June, 2022 Through the PI Court Sub: Prayer for bail objection Ref: Dhubri PS Case No.u/s 1997/2021 u/s 22 (C) NDPS Act Sir With due respect and humble submission regarding above case, I desire to inform that on 20/12/2021 complainant SI Aminul Hoque of Dhubri PS Dist-Dhubri (Assam), lodged an FIR at PS and stated that on the same day at about 8.00 Pm, one information received that, 2(two) persons namely (1) Mahmudul Hassan Khan S/o Lt. Raj Ali Khan Vill-Airanglongla Pt-III, PS and Dist-Dhubri, Assam (2) Mojid Hussain S/o Altab Hussain R/o W/No. 12, Subhash Nagar, both are PS and Dist-Dhubri, Assam were carrying with a vehicle (Alto 800 LXI) vide Registration No. AS01BD4905 were coming from Gauripur side towards Dhubri town with large quantity of Narcotic Drugs. Raj Ali Khan Vill-Airanglongla Pt-III, PS and Dist-Dhubri, Assam (2) Mojid Hussain S/o Altab Hussain R/o W/No. 12, Subhash Nagar, both are PS and Dist-Dhubri, Assam were carrying with a vehicle (Alto 800 LXI) vide Registration No. AS01BD4905 were coming from Gauripur side towards Dhubri town with large quantity of Narcotic Drugs. Accordingly complainant along with staff reached to the PO (BOC More) under the guidance of O/C Dhubri PS and stopped the Car and searched in the said vehicle and found recovery contraband items like Pyeevon Spas Plus capsules 7000(Seven thousand) Nittrosin R 10 Tablets 400 (four hundred) from their possession and accordingly seized the said items and vehicle and accused persons namely Mahamudul Hassan and Mojid Hussain and interrogated them into the case. During interrogation the apprehended accused persons are stated where they disclosed the other co-accused persons are also accompanying involved with them with the crime of the case. During investigation visited the PO, examined the witnesses as well as complainant drew the sketch map, seized the recovered contra bands from their possession while they were carrying with the seized vehicle for their illegally business purpose. During investigation it also revealed that, the arrested accused persons along with co-accused persons are doing their business illegally since long for that they spoiling the atmosphere of that locally. Under the above circumstances and facts I therefore pray before Your Hon'ble Court kindly not to enlarge the arrested accused persons also not to grant any pre-arrest bail at this instant investigation of the case as during the interrogation of arrested accused person they stated that the another accused namely Rafik Khan of New Ghat who is also involved accompany of arrested accused person with their illicit business which is running since long for their gain. I have made attempt several times to nab the accused persons who is yet to be arrested efforts are on. So, I therefore pray kindly not to enlarged on bail the arrested accused persons at this instant investigation of the case till the remaining arrest of accused persons. If the accused persons enlarged on bail they may cause hamper in investigation and tempering the witnesses also assist for hidden the co-accused persons. Submitted for favour of your kind consideration and necessary order and oblige. Yours faithfully Sd- SI Safiqul Hussain Dhubri Police Station Date 20/6/2022" 13. If the accused persons enlarged on bail they may cause hamper in investigation and tempering the witnesses also assist for hidden the co-accused persons. Submitted for favour of your kind consideration and necessary order and oblige. Yours faithfully Sd- SI Safiqul Hussain Dhubri Police Station Date 20/6/2022" 13. On receipt of the above 02(two) petitions, the court of learned Special Judge, Dhubri after hearing the learned counsel of both sides, passed the following order in Misc. (Crl.) Case No.721/2022. "20/6/2022 Case record is put up before me as the Presiding officer is on earned leave. Perused the petition no. 626 filed u/s 437 CrPC for granting bail to Mahamadul Hassan Khan who is detained in jail custody since 21/12/2021 in connection with Dhubri PS Case No. 1997/2021, corresponding to GR No.6420/2021 registered u/s 22 (c ) of NDPS Act. Heard learned counsel of both sides. In course of hearing, learned counsel for the bail petitioner submitted that the accused has completed statutory period of detention, and prayed to allow him to go on bail. Seen the prayer made by the I.O. stating that further investigation of the case is going on to apprehend another accused, namely, Rafik Khan, who is involved in this case. The learned Addl.PP submitted that in view of the provision of Sec. 36-A (4) proviso of NDPS Act, this Court can extend the time up to one year. Hence, taking into consideration the fact that investigation is going on and huge quantity of narcotics/ drugs was recovered from the possession of the accused, the period may be extended. From perusal of the materials available on record, it appears that 7, 000 nos. (seven thousand) of Pyeevon Spas Plus capsules and 400 nos. (four hundred ) of Nitrosun ( R) 10 tablets were recovered from the possession of the accused. The case record also reveals that this Court upon perusal of the case diary and taking into consideration the huge quantity of the accused, rejected bail petitions on earlier occasion. (seven thousand) of Pyeevon Spas Plus capsules and 400 nos. (four hundred ) of Nitrosun ( R) 10 tablets were recovered from the possession of the accused. The case record also reveals that this Court upon perusal of the case diary and taking into consideration the huge quantity of the accused, rejected bail petitions on earlier occasion. Though the accused is in jail custody since last 181 days, but taking into consideration the materials available on record and after hearing the learned Addl.PP and upon perusal of the report submitted by the IO, I am of the opinion that this is a fit case where the period of investigation may be extended beyond 180 days and accordingly, the period is extended so that the investigation may be completed by the IO. Accordingly, the petition No.626 stands rejected. Send a copy of this order to the IO concerned for information. This Misc. (Crl.) is disposed of accordingly." 14. A perusal of the above order passed by the learned trial court reveals that it was passed after hearing the learned counsel representing both the accused and the prosecution. The aforesaid order was passed on the 181st day computed from the date of detention in judicial custody, that is on 21/12/2021 based on the petition filed by the investigating officer, which was moved before the learned trial court through the learned Public Prosecutor. The aforesaid petition filed by the investigating officer was considered and allowed extending the period of investigation beyond 180 days, completed on 19/6/2022 to one year to complete the investigation, which started on and from the 181st day, that is 20/6/2022. 15. It may be mentioned that under Sec. 36 A (4) of the NDPS Act, the investigating officer has an indefeasible statutory right to continue the investigation in a case involving commercial quantity for 180 days and this period can be extended to total one year which runs from the 181st day subject to satisfaction of the Special Judge on the report of the Public Prosecutor indicating the progress of investigation and the specific reasons for extension of the period aforementioned. 16. It is noticed that while moving the aforesaid petition of the investigating officer, the learned Public Prosecutor endorsed his three basic grounds viz. 16. It is noticed that while moving the aforesaid petition of the investigating officer, the learned Public Prosecutor endorsed his three basic grounds viz. (a) that the investigation was going on into the case involving seizure of huge commercial quantity of contraband out of the exclusive and conscious possession of the accused persons, who, as the investigation revealed, were dealing in trafficking drugs since long; (b) that their co-accused namely Rafique Ali could not be arrested till then; and ( c) that if they were released on bail, it was apprehended that they might hamper in investigation and tamper the witnesses. Pertinently, one should not be lost sight of the legislative objects and reasons behind the enactment of the NDPS Act which aims at preventing trade in illicit narcotic and psychotropic drugs and drug abuse. 17. Therefore, the petition of the investigating officer, which was endorsed by pressing its specific compelling reasons and thereby highlighted the apparent requirements for extension of continuation of judicial custody of the accused petitioner beyond 180 days before the learned Special Judge (NDPS Act), Dhubri, satisfied the conditions of Sec. 36 A (4) of the NDPS Act and as such, on due application of mind, after giving opportunity of being heard to both sides, the learned Special Judge rightly extended the period of detention of the accused petitioner beyond 180 days to one year from the date of his detention, that is, 21/12/2021, on and from the 181st day, that is, 20/6/2022. 18. Situated thus, the contention of the accused petitioner that he was eligible for release on default bail on 20/6/2020 does not arise. The plea that the investigating officer ought to have applied for extension of period for investigation beyond 180 days within the aforesaid period of statutory right for investigation of the investigating officer in advance also likewise does not arise. 19. For the above stated reasons and in the backdrop of facts and abundance of implicating evidence that emerge from the case record and the case diary, this Court is of the opinion that in view of the rigours of Sec. 37 of the NDPS Act, the accused petitioner is not entitled to be released on default bail. Accordingly, the bail application stands rejected. Furnish a copy of this order to the learned Additional Public Prosecutor (Mr. BB Gogoi). The bail application stands disposed of.