Page No.# 1/8 GAHC010066502025 2025:GAU-AS:5195 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./983/2025 MD ANASH S/O. MD. MAOLANA ALIMUDDIN, R/O. LILONG USOIPOKPI THAROULOK POLICE STATION-LILONG DISTRICT. THOUBAL, MANIPUR- 795130 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. D GOGOI, MS T WAPANGLA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER Date : 29.04.2025 Heard Mr. N. Wotsa, learned counsel appearing for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor appearing for the State respondent. 2. This application is filed under Section 483 of BNSS Act, 2023 seeking grant of regular bail to the petitioner i.e. Md. Anash, who has been arrested on 28.10.2023 in connection with Dillai PS Case Page No.# 2/8 No.60/2023 arising out of G.R. Case No.321/2023 under Section 21(c) of the NDPS Act, 1985. 3. The brief facts of the case is that the Sub Inspector of the Dillai Police Station, Karbi Anglong, Assam lodged a FIR on 28.10.2023 alleging inter-alia that about 10:30 P.M., upon receiving an information from IC Lahorijan PP, Police Station- Dillai regarding detention of one white colour XUV 300 bearing Registration No. AS26E2081 coming from Manipur suspected to be carrying drugs and as such, arrested the petitioner in connection with the aforesaid case. 4. It is the further case of the prosecution that a total 50 nos. of soap boxes, 11 soap boxes were hidden inside the AC and music system slot and 39 nos. of soap boxes were recovered from the right side of the rear portion of the car, collectively weighing 637.28 grams, which was driven by the petitioner. Accordingly, a FIR was registered. 5. Mr. N. Wotsa, learned counsel appearing for the petitioner submits that the petitioner was the driver of the vehicle from which the contraband articles has been seized and hence had no knowledge that the recovered articles was kept hidden in the vehicle. He further submits that though trial has commenced, however, only 6 witnesses have been examined and the petitioner is languishing in jail since last almost 2 (two) years. He further submits that the mandatory procedure as contained under Section 41 and 42 of the NDPS Act has also not been complied in the present case. He accordingly submits that the petitioner is liable to be entitled for release on bail. 6. Per contra, Mr. B. Sharma, learned Additional Public Prosecutor Page No.# 3/8 appearing for the State respondent submits that the trial is almost coming to an end inasmuch as out of the 9 prosecution witnesses, 6 witnesses has already been examined and the next date fixed is 05.05.2025. He further submits that the prosecution witnesses so far examined clearly implicates the petitioner for the alleged offences. He further submits that from the material available in the scan copy of the case records of the case, it is evident that there are materials available to reasonably believe that the petitioner is guilty of the alleged offence. He accordingly prays that the bail ought not to be given. 7. I have heard the learned counsel appearing for both the parties and have perused the material available on record including the scan copy of the trial Court records. 8. It appears that the police personnel upon receiving the information as regards the alleged commission of the offence proceeded to the location from where they apprehended the petitioner and recovered the contraband articles, which were kept hidden in the car, which was driven by him. 9. It further appears that the trial is going on, wherein out of 9 prosecution witnesses, 6 prosecution witnesses have already been examined. It further appears that from the scan copy of the case records placed before this Court that since the 6 prosecution witnesses, who have been examined so far has clearly implicated the petitioner for the alleged offence. It further appears that the hidden quantities of contraband articles weighing 637.28 gram of heroine have been procured from the possession of the petitioner which was Page No.# 4/8 being transported from Manipur. 10. In the present case, the offence alleged arising out of the provision of NDPS Act, apt to refer to the principles laid down by the Apex Court in the case of Union of India through Narcotic Control Bureau Lucknow Vs M.D Nawaz Khan in Criminal Appeal No.1043/2021. Paragraphs 18 19 and 20 are reproduced hereunder for ready reference:- "18. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are: (i) The Prosecutor must be given an opportunity to oppose the application for bail; and (ii)There must exist reasonable grounds to believe' that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail. 19. The standard prescribed for the grant of bail is 'reasonable ground to believe' that the person is not guilty of the offence. Interpreting the standard of 'reasonable grounds to believe', a two- judge Bench of this Court in Shiv Shanker Kesari (supra), held that: “7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence DRID charged. 8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable". "7.... In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of Page No.# 5/8 the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy." (See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [(1987) 4 SCC 497) (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1 SCC 532] [...] 10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai. Kamla Mills Ltd. ((2003) 6 SCC 315] 11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 20. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed." 11. Reading of the above, apparent that the test which this Court is required to apply while granting bail under section 37 of the NDPS Act is to see whether there are reasonable grounds to believe that the petitioner has not committed an offence under the Act and whether he is likely to commit any offence while on bail. 12. Undoubtedly, given the seriousness of an offence punishable Page No.# 6/8 under the NDPS act, stringent parameters for grant of bail under the NDPS Act, have been prescribed in order to carp the menace of drug trafficking in the country. 13. In the present case, it is pertinent to note that the contraband articles have been seized from the vehicle, which was driven by the petitioner and was the sole occupant of the said vehicle. 14. The argument of Mr. Mr. N. Wotsa, learned counsel appearing for the petitioner to the effect that the petitioner was not having conscious possession of the contraband articles which was found from the vehicle which he was driving as he was a mere driver cannot be accepted at this stage. 15. Section 8 of the NDPS Act, 1985 prohibits a person from possessing any narcotic drugs or psychotropic substance. 16. Apt to refer to Section 35 of the NDPS Act, 1985, which is reproduced hereunder for ready reference:- "35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." Page No.# 7/8 17. Apt to refer to Section 54 of the NDPS Act, 1985, which is reproduced hereunder for ready reference:- “54. Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of- (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.” 18. In the present case, the contraband articles having been seized from the possession of the petitioner, the possession is established. That apart, it is further apparent that out of the 9 prosecution witnesses, 6 prosecution witnesses, who have been examined so far has also implicated the petitioner for the alleged offence. Therefore, the burden is now upon the petitioner to show how the same has been seized from the vehicle which he was driving. However, the trial having been not concluded the said stage has not arrived. 19. The argument of the learned counsel appearing for the petitioner to the effect that the trial is vitiated for non compliance of the statutory procedural prescriptions under the relevant provisions of Page No.# 8/8 law is also a matter of fact which has to be raised during the trial. In such cases, the fact that the petitioner is languishing in jail for the last almost 2 (two) years cannot be the sole criteria for granting bail in relation to offence under special Act like that of NDPS Act. The entire facts and circumstances of the case vis-à-vis the rigor of Section 37 of the NDPS Act has to be looked into for adjudicating the bail prayer. 20. Thus, what cannot be overlooked at this stage is that the petitioner was caught with the seized contraband articles of large quantity which established possession at this stage. Hence, it appears that there are materials available on record for reasonably believing that the petitioner is guilty of the offence alleged. That apart, since out of 9 prosecution witnesses, 6 has already been examined, the trial appears is going to come to a conclusion soon. 21. Therefore, considering the facts and circumstances of the case and keeping in mind the rigors of section 37 of the NDPS Act in mind, this Court is not inclined to grant bail to the petitioner at this stage. Accordingly, the bail application stands rejected. JUDGE Comparing Assistant