Page No.# 1/9 GAHC010231472023 2025:GAU-AS:6354 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1115/2023 DIPANKAR DEY S/O MEHIR DEY R/O VILL- FULKUMARI UDAYPUR GOMATI TRIPURA P.S. R.K.PUR (RADHA KISHOR PUR) DIST. GOMATI TRIPURA, TRIPURA. VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM 2:S.I. (P) PULOKESH KAMAN GARCHUK POLICE STATION DIST. KAMRUP (M) ASSAM PIN-78103 Advocate for the Petitioner : MR. U K BARMAN, MR D PEGU,MR. R KONWAR,MR H ALI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 19.05.2025 1. Heard Mr. H. Ali, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent. Page No.# 2/9 2. This application under Section 482 of the BNSS, 2023 has been filed by the petitioner, namely, Dipankar Dey impugning the order dated 20.09.2023, passed by the Court of the learned Additional Sessions Judge No. 1, Kamrup(M), Guwahati, in NDPS Case No. 82/2023, whereby the petition filed by the present petitioner praying for discharging him from the case was dismissed. 3. It is pertinent to mention herein that though the said application was filed by the present petitioner along with two other co-accused, namely, Manohar Biswas and Sajal Das, however, as presently only Dipankar Dey has impugned the order rejecting the prayer for his discharge, this Court is considering only the case of the present petitioner, namely, Dipankar Dey. 4. The facts relevant for consideration of the instant criminal petition, in brief, are as follows: - (i) On 26.03.2023, one Pulokesh Kaman, SI of Police, had lodged an FIR before the Officer-in-charge of Garchuk Police Station, inter alia, stating that an information was received by the officer in charge of Garchuk Police Station from a reliable source, on 26.03.2023, regarding transportation of huge quantity of cannabis (Ganja) in a truck bearing Registration No. TR- 01-AU-1894 from which was coming from Tripura side. Accordingly, a search team was constituted and it arrived at National Highway No. 27 near Lalung Gaon in front of Bharat Petrol Pump at about 4:30 Pm and after sometime the aforesaid truck was intercepted. It is also stated in the FIR that the driver of the truck tried to fled away, however, the truck was intercepted and two persons, namely, 1. Babul Biswas and 2. Haradhan Rishi were found inside the said truck. On search of the said truck, 76.881 kgs of ganja wrapped in small packets were found concealed under the seat of the driver cabin of the vehicle. Page No.# 3/9 (ii) On receipt of the said FIR, Garchuk P.S. Case No. 90/2023 was registered. During the course of investigation, three other accused persons were arrested, namely, Sajal Das, Dipankar Dey (present petitioner) and Manohar Biswas. After completion of the investigation, charge-sheet was laid against five numbers of accused persons, including the present petitioner, under section 20(b)(ii)(C)/29 of the NDPS Act, 1985. (iii) The present petitioner along with two others, namely, Manohar Biswas and Sajal Das had filed a petition which was numbered as Petition No. 2210/2023 dated 14.08.2023 under Section 227 of the Code of Criminal Procedure, 1973, before the Trial Court i.e., the Court of the learned Additional Sessions Judge No.1, Kamrup(M), Guwahati praying for discharging the present petitioner on the ground that no contraband was recovered from his possession and no incriminating materials are there against him in the present case. (iv) However, by order dated 20.09.2023 passed in NDPS Case No. 82/2023, which has been impugned in the instant criminal petition, the Trial Court rejected the prayer for discharge on the ground that there are strong suspicion founded on materials against the present petitioner from a framing charge against him. 5. Mr. H. Ali, the learned counsel for the petitioner has submitted that nothing was seized from the possession of the present petitioner and there is no material even to remotely link the petitioner with the contraband seized in this case is there against him in the record, however, the Trial Court in spite of said absence of any incriminating material, have rejected the prayer for discharging the present petitioner by the impugned order. Page No.# 4/9 6. The learned counsel for the petitioner has submitted that the petitioner was arrested merely because he was found along with one Tonmoy Gupta in a vehicle bearing Registration No. TR-01-BU-0386 which was not involved in the offence alleged in this case. He further submits that two accused from whose possession contraband was seized in this case in their statement have named only co-accused Tonmoy Gupta and have not implicated the present petitioner. However, merely because the present petitioner was travelling in the said truck in which co-accused Tonmoy Gupta was found, he was also implicated in this case. 7. The learned counsel for the petitioner has submitted that there is absolutely no material on record to show that there was any communication by the present petitioner with the other co-accused in respect of the contraband seized in this case. The learned counsel for the petitioner has submitted that there has been total non-application of mind by the Trial Court in dismissing the petition filed by the present petitioner for his discharge without there being any prima facie case against the present petitioner. He submits that the petitioner should not have been charged just because he was in a truck with another accused, especially when the said truck had no role in the alleged crime. 8. The learned counsel for the petitioner has submitted that there is no material on record even to raise a slightest suspicion regarding the complicity of the petitioner in the offence alleged in this case. He submits that the Trial Court being an experienced Court cannot act merely as a post office or a mouthpiece of prosecution side without going through the materials available on record. He submits that in the instant case, there is no evidence at all against the present petitioner to implicate him in the offence alleged in this case, hence, the Trial Court had erred in rejecting his prayer for discharge and, therefore, he prays for Page No.# 5/9 setting aside the impugned order and discharge the present petitioner. 9. In support of his submission, the learned counsel for the petitioner has cited the following rulings:- (i) “Amar Singh Ramjibhai Barot –Vs- State of Gujarat”reported in “2005 STPL 15037 SC” (ii) “Union of India –Vs- Prafulla Kumar Samal and Anr.” reported in “(1979) 3 SCC 4” 10. On the other hand, Mr. P. S. Lahkar, learned Additional Public Prosecutor has opposed the petition filed by the present petitioner on the ground that the Trial Court has correctly passed the impugned order by rejecting the prayer for discharging the present petitioner as there are sufficient materials against the present petitioner in the records. 11. The learned Additional Public Prosecutor has submitted that the present petitioner was apprehended from vehicle No. TR-01-BU-0386 when he was there in the said vehicle along with co-accused Tonmoy Gupta who has been specifically implicated by the co-accused from whose possession the contraband was seized. He has also submitted that there is evidence in the case diary to suggest that present petitioner was found along with the co-accused Tonmoy Gupta which is indicative of his complicity in the offence alleged in this case and, hence, he submitted that the Trial Court has correctly rejected the prayer for discharge of the present petitioner as there is strong suspicion regarding his involvement in the offence alleged in the case. 12. I have considered the submissions made by the learned counsel for both the sides and have gone through the scanned copy of the records of NDPS Case No. 82/2023 along with the scanned copy of the case diary of Garchuk P.S. Page No.# 6/9 Case No. 90/2023 which was called for in connection with this case. 13. It is apparent from the record that the instant case i.e., NDPS Case No. 82/2023 has been instituted on the basis of the FIR which was lodged in on 26.03.2023 by S.I. Pulokesh Kaman. In this instant case the main allegation was regarding recovery of 76.881 kgs of suspected cannabis/ganja from vehicle bearing Registration No. TR-01-AU-1894. This recovery was made from possession of two accused persons, namely, 1. Babul Biswas and 2. Haradhan Rishi Das. It also appears that later on the present petitioner was arrested from a different vehicle i.e., vehicle bearing Registration No. TR-01-BU-0386 when he was inside the said vehiclealong with other co-accused persons including Tonmoy Gupta. Though, nothing was recovered from the said vehicle on its search, however the petitioner was arrested mainly because he was found in the company of Tonmoy Gupta whose name was implicated by the arrested accused persons namely, Babul Biswas and Haradhan Rishi. 14. Thus, from the above facts, it appears that though Tonmoy Gupta was implicated by the co-accused persons namely, 1. Babul Biswas and 2. Haradhan Rishi, from whose possession the contraband seized in this case was recovered, however, the said accused persons did not implicate the present petitioner. The Investigating Officer had arrested the present petitioner mainly because he was found along with the accused person (Tonmoy Gupta) who was named by the co-accused persons from whose possession seized contraband were recovered. There is no other material in the case diary which links the present petitioner with the contraband which has been recovered from vehicle bearing Registration No. TR-01-AU-1894. 15. The Apex Court in the case of “State of Bihar –Vs- Ramesh Singh” reported in “(1977) 4 SCC 39” has observed as follows:- Page No.# 7/9 “4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If “the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by Section 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— … (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and Page No.# 8/9 not under Section 227. 16. Thus, from the above, it appears that if strong suspicion is there against the accused persons in the case diary at the time of framing of charges the Trial Court would be rightin framing of charges against such an accused. However, if the evidence which is available on record i.e., which the prosecution side proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or reverted by defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. 17. In the instant case there is no material on record except the fact that the petitioner was found along with co-accused Tonmoy Gupta. 18. It is also pertinent to mention here that when the petitioner was found along with the co-accused Tonmoy Gupta nothing was seized even from him. The contraband in this case has been seized from co-accused, namely, Babul Biswas and Haradhan Rishi and there is no material to link the present petitioner with the contraband which was seized in this case. The Trial Court has, therefore, totally erred in holding that there are materials against the present petitioner which raises strong suspicion regarding his involvement in the offence alleged in this case without specifically discussing such materials. 19. This Court after a careful perusal of the records could find no incriminating material, against the present petitioner, except the fact that the petitioner was arrested in company with another co-accused, namely, Tonmoy Gupta when he was not committing any offence. 20. This Court is, therefore, of the considered opinion that there is no sufficient ground for proceeding against the present petitioner in NDPS Case No. Page No.# 9/9 82/2023 corresponding to Garchuk P.S. Case No. 90/2023. 21. The impugned order dated 20.09.2023 passed by the Additional Sessions Judge No. 1, Kamrup(M), Guwahati in NDPS Case No. 82/2023 in so far as it has rejected the prayer for discharge of the present petitioner, namely, Dipankar Dey, is hereby set aside and the petitioner Dipankar Dey is hereby discharged of offences under Sections 20(b)(ii)(C)/29 of the NDPS Act, 1985 and set at liberty forthwith. 22. Let a copy of this order be sent to the Trial Court i.e., the Court of the learned Additional Sessions Judge No. 1, Kamrup(M), Guwahati. 23. This criminal petition is accordingly disposed of. JUDGE Comparing Assistant