Mizanur Rahman v. The State of Assam

ORDER Date : 14-06-2023

Heard Mr. H.R.A. Choudhury, learned senior counsel, assisted by Mr. A.T. Sarkar, learned counsel for the petitioner and Mr. M.P. Goswami, learned Addl. P.P. for the State. Page No.# 2/7

¶2The petitioner, Mizanur Rahman, who was arrested on

03.09.2022, in connection with Golakganj PS Case No. 324/2022 and tried as Special Case No. 388/2022 under Section 22(c) of the NDPS Act, 1985 in the Court of learned Special Judge (Addl.), Dhubri, and has spent 284 days as on today, has prayed for regular bail under Section 439 Cr.P.C.

¶3The learned senior counsel for the petitioner has submitted that charge was framed against the petitioner by order dated 29.11.2022, and till date 4 (four) out of 6 (six) witnesses have been examined by the prosecution, and it was submitted that if the examination-in-chief and cross-examination of the 2 (two) independent/ non-official witnesses are perused, it would not inspire the confidence of the Court that the petitioner is guilty of the offence. It was submitted that the petitioner cannot be kept in continued custody for indefinite time till the conclusion of trial as conclusion of trial would still take a couple of months. It was submitted that all private prosecution witness have been examined and thus, only official witnesses are left to be examined and therefore, there is no chance of influencing any witness. It was also submitted that if in trial, the petitioner is not found guilty, he would have undergone long custody despite not committing any offence. It has been also submitted that the petitioner has movable and immovable property and therefore, there is no chance of absconding and that the petitioner is ready and willing to abide by any condition that may be imposed on grant of bail.

¶4The learned Addl. PP has perused the scanned copy of the case record and has opposed the prayer for bail. The scanned copy of the said case record is available in the record of B.A. No. 2744/2022, which was the previous bail application of the petitioner that was rejected by the Court. The said record Page No.# 3/7 was called for by order dated 02.06.2023.

¶5The case record reveals that 2,600 (two thousand six hundred) contraband methamphetamine tablets as well as 10 numbers of plastic container containing 41.144 gram heroin were recovered from the conscious possession of the petitioner and as per the FSL report, the said contraband had tested positive for methamphetamine and heroin.

¶6Although a lot of stress was given by the learned senior counsel for the petitioner to the effect that on a perusal of the evidence of the witnesses examined so far, the chance of conviction is bleak. In the said regard, the Court is of the considered opinion that evaluation of evidence is not required to be done at the stage of consideration of prayer for bail.

¶7In the present case, the trial is yet to be concluded. Nonetheless, the prosecution has been able to prima facie satisfy the Court that there are materials in the final complaint to suggest that the petitioner was in conscious possession of commercial quantity of contraband.

¶8In the case of Narcotics Control Bureau Vs. Mohit Aggarwal, AIR 2022 SC 3444, the case was lodged under section 8/22/29 of the NDPS Act, 1985. In the said case, a 3 Judge Bench of the Supreme Court of India had observed and held as follows:-

¶11It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) Page No.# 4/7 of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.

¶12The expression "reasonable grounds" has come up for discussion in several rulings of this Court. In Collector of Customs, New Delhi v. Ahmadalieva Nodira,

(2004) 3 SCC 549 a decision rendered by a Three Judges Bench of this Court, it has been held thus:- '7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.' [emphasis added]

¶13The 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: "20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for." [emphasis added]

¶14To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Page No.# 5/7 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.

¶15We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. * * *

¶17Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought 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."

¶9As commercial quantity of contraband has been seized from the petitioner, the Court is unable to arrive at a prima facie conclusion that there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail.

¶10It would also be relevant to quote the provision of Section 436A Cr.P.C., which is as follows:- "436A. Maximum period for which an under trial prisoner can be Page No.# 6/7 detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.—In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded."

¶11It would also be appropriate to refer to the decision of the Supreme Court of India in the case of Satender Kumar Antil v. Central Bureau of Investigation, AIR 2022 SC 3386, wherein it is provided that "Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount."

¶12In the present case, the petitioner is charged of committing offence punishable under sections 22(c) of the NDPS Act. Under the said provision, the punishment prescribed is not less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than Rs.1.00 lakh but which may extend to Rs.2.00 lakh. Therefore, following the ratio laid down in the case of Satender Kumar Antil (supra), as well as the Page No.# 7/7 provision of Section 436A Cr.P.C., the petitioner having been incarcerated for a period of 284 days, has not become entitled to be released on bail.

¶13Thus, this application for bail is rejected.

¶14Let the record of BA 2744/2022 and BA 2892/2022 be detached.

¶15Nothing contained in this order shall prejudice either side during trial. JUDGE Comparing Assistant

Page No.# 1/7 GAHC010118342023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1920/2023 MIZANUR RAHMAN S/O AHMED ALI SHEIKH VILL- SONAKHULI PART-I P.S. GOLAKGANJ DIST. DHUBRI, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA