Page No.# 1/9 GAHC010241552024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/3029/2024 BILAL HUSSAIN S/O LATE BAHAR ALI R/O NO. 1 DAULASAL P.S. MUKALMUA DIST. NALBARI, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. B CHOWDHURY, Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 03.01.2025 1. Heard Mr. B. Chowdhury, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor appearing for the State of Assam. 2. This application under Section 482 of BNSS, 2023 has been filed by the petitioner, namely, Bilal Hussain, who is apprehending his arrest in connection Page No.# 2/9 with Mukalmua P.S. Case No. 272/2024 under Section 21(b) of NDPS Act 1985. 3. The gist of the accusation in this case is that on 11.09.2024, one Tridip Kumar Bora, had lodged an FIR before the Officer-in-charge of Mukalmua Police Station, inter alia, alleging that on receipt of an information through reliable sources regarding illicit trade of narcotic drug, a search operation was conducted in the house of Billal Hussain (present petitioner). During search operation, 20 grams of heroin (with container) was recovered there from. However, the petitioner could not be apprehended as he absconded from the place. The police, however, apprehended his wife, Maiman Parbin from his house. 4. Mr. B. Choudhury, learned counsel for the petitioner, has submitted that though in the FIR, it has been stated that 20 grams of heroin (with container) was recovered from the house of the present petitioner, however, in fact, the actual quantity of heroin recovered was 2.28 grams, which is clear from the case diary, which the Court had perused while considering the bail application of the wife of the present petitioner, namely, Maiman Parbin. 5. Learned counsel for the petitioner has also submitted that, in the meanwhile, Maiman Parbin, the wife of the petitioner, who was arrested in connection with this case, has already been granted bail by this Court by order dated 15.10.2024, in Bail Application No. 3086/24. 6. Learned counsel for the petitioner has also submitted that considering the fact that only 2.28 grams of heroin was recovered from the house of the petitioner, the instant case is a case involving small quantity of contraband and it ought to have been registered under Section 21(a) of the NDPS Act, 1985 Page No.# 3/9 instead of Section 21(b) of the said Act. He also submits that as small quantity of contraband is involved in this case which contains punishment only up to one year, the offence under Section 21(a) is bailable in nature. In this regard, he also submits that a Co-ordinate Bench of this Court (Bail Application No. 472/2023, order dated 03.02.2023 by Hon’ble Mr. Justice Michael Zothankhuma) has held that the offence under Section 21(a) of the NDPS Act, is bailable offence, and accordingly petitioner should be released if he is arrested in connection with the said offence. 7. On the other hand, Mr. P. Borthakur, learned Additional Public Prosecutor has opposed the grant of anticipatory bail to the petitioner, on the ground that, he is the main accused in this case, as the house from where the contraband was recovered belongs to him. He also submits that though small quantity of contraband was recovered from the house of the petitioner, however, as all the offences under NDPS Act, 1985 are non-bailable, anticipatory bail should be denied to the petitioner. In support of his submission, learned Additional Public Prosecutor has cited a ruling of the Bombay High Court, in the case of “Rhea Chakraborty -Vs- Union of India” reported in “2020 SCC OnLine BOM 990”, wherein relying on the observation made by the Apex Court in the case of “Baldev Singh -Vs- State of Punjab” reported in “(1999) 6 SCC 172” it came to the conclusion that all offences under NDPS Act are non-bailable. 8. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials available on record. 9. There is no dispute at bar regarding the quantity of contraband seized in this case i.e., 2.28 gram of heroin, which is undisputedly a small quantity of contraband. Hence, this case ought to have been registered under Section 21(a) of the NDPS Act, 1985 instead of Section 21(b) of the said Act. Page No.# 4/9 10. The punishment which is prescribed for the offence under Section 21(a) of the NDPS Act, 1985 is rigorous imprisonment which may extend to one year or with fine which may extend to Rs. 10,000/- or with both. 11. It is pertinent to note that nowhere in the NDPS Act 1985, it is provided that all the offences under the said Act are non-bailable. Though, there is some misconception that Section 37 of the NDPS Act, 1937 provides so, however, it is not so. For ready reference, Section 37 of the NDPS Act, 1985 is reproduced hereinbelow: - “37. Offences to be cognizable and non-bailable. -- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence punishable under this Act shall be cognizable; (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 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. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” Page No.# 5/9 12. On careful perusal of the above provision, it is apparent that though, in the heading of Section 37 of the NDPS Act 1985, it is provided that offences to be cognizable and non-bailable. However, in the body of the said section it is provided that every offence under the Act shall be cognizable and it does not speak about making all offences under the Act as non-bailable. Rather, it provides for stringent provision for bail for certain category of offences, including offences involving commercial quantity of contraband. 13. In the case of “Frick India Limited -Vs- Union of India” and others reported in “(1990) 1 SCC 400”, the Supreme Court of India has observed as follows:- “It is well settled that the heading prefixed to sections or entries cannot control the plain words of the provisions; they cannot also be referred to for the purpose of construing the provision when the words used in the provisions are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only, in case of ambiguity or doubt, the heading or sub-heading may be referred to as an aid in constrain the provision but even in such case it could not be used for cutting down the wide application of the clear words used in the provisions.” 14. In the instant case, though, the body of Section 37 of the NDPS Act, 1985 clearly provides that every offence punishable under the Act shall be cognizable, however, it does not provide for making every offence under the Act as non-bailable. Had the legislature wanted to make every offence under the Act non-bailable, it would have done so by clearly stipulating for the same in the body of the section. The omission to do so cannot be regarded as an inadvertent omission, rather it would be presumed that it is a deliberate omission thereby legislature intending not to make every offence non-bailable. 15. Section 4 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides as Page No.# 6/9 follows:- “Section 4. Trial of offences under Bharatiya Nyaya Sanhita, 2023 and other laws. (1) All offences under the Bharatiya Nyaya Sanhita, 2023 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” 16. Section 5 of Bharatiya Nagarik Suraksha Sanhita, 2023 provides as follows: - “5. Nothing contained in this Sanhita shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” 17. On perusal of the above provisions, it appears that all offences under any other law shall be dealt with according to the provisions of BNSS subject to any specific provisions to the contrary in the special law. In the instant case, as discussed hereinbefore, as the NDPS Act, 1985 does not provide specifically that all the offences under the said Act shall be non-bailable, hence, the question as to which of the offences under NDPS Act, 1985 are bailable and which are non- Page No.# 7/9 bailable can be answered only with the aid of the general provisions that effect, contained in the BNSS 2023. The general provisions of the BNSS will apply to all proceedings under any special law unless the special law provides for any special provision in that regard. 18. It is pertinent to mention herein that, the Part II of the 1st Schedule to BNSS, 2023 provides that if the offence is punishable with imprisonment for less than 3 years and with fine or with fine only same has been categorized as a bailable offence. Thus, in absence of a specific provision in the NDPS Act, 1985 making all offences under the said Act has non-bailable, the general provisions provided in Part II of the 1st schedule of the BNSS, 2023 would be applicable for the offences under NDPS Act, 1985 also. Accordingly, it is held that the offence under section 21(a) of the NDPS Act, 1985, which provides for punishment less than 3 years, is a bailable offence. 19. With somewhat similar reasonings, the Bombay High Court in the case of “Stefan Mueller Vs. State of Maharashtra” reported in “2010 SCC OnLine BOM 1974” has held the offence under Section 20(b)(ii)(A) of the NDPS Act, 1985 to be bailable one. This court fully agrees with the reasonings made by the Bombay High Court in the aforesaid case. 20. However, this Court fails to persuade itself with the reasonings of the Bombay High Court in the case of “Rhea Chakravorty Vs. Union of India” (supra) where it relied on the observation made by the Supreme Court of India in the case of “Baldev Singh v. State of Punjab” (supra) to come to the conclusion that all offenses under NDPS Act, 1985 are non-bailable. 21. This Court is of considered view that the proposition of law laid down by the Bombay High Court in the case of “Rhea Chakravorty Vs. Union of India” Page No.# 8/9 (supra) is not the correct proposition. In that case the Bombay High Court had failed to take into consideration that in the case of “Baldev Singh v. State of Punjab” (supra), the Supreme Court of India was dealing with the issue of Section 50 of the NDPS Act, 1985 and the question as to whether the offences under NDPS Act, 1985 are bailable or non-bailable was not before the Court, neither it has been dealt with by the Apex Court in the said judgment. It is only in the paragraph No. 4 of the aforesaid judgment that the Apex Court has made a passing observation that Section 37 makes all offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail. In the said paragraph, the Apex Court was dealing with the evaluation of drug control laws in India culminating in stringent NDPS Act, 1985 which despite harsh penalties and amendments struggles to curb drug trafficking and abuse effectively. In the aforesaid case, the Supreme Court of India did not deal with the nitty-gritty of Section 37 of the NDPS Act, 1985. The observations regarding all the offences in NDPS Act, 1985 being non bailable offences, made by the Apex Court, in the said case, which was cited by the Bombay High Court, in the case of “Rhea Chakravorty Vs. Union of India” (supra), does not form the ratio decidendi of the decision arrived at by the Apex Court in the case of “Baldev Singh v. State of Punjab” (supra). Hence, this Court is of the considered opinion that the aforesaid observations made by the Apex Court does not lay down the law regarding the issue as to whether the offences under NDPS Act, 1985 are bailable or non-bailable and same has to be construed as per the well-settled principle regarding the interpretation of statutes as discussed hereinabove. 22. For the reasons discussed in foregoing paragraphs, this Court is of the considered view that the offence under Section 21(a) of the NDPS Act is bailable offence and this Court fully agrees with the observation made by the Co- Page No.# 9/9 ordinate Bench of this court in the case of “Amir Ali -Vs- State of Assam” (order dated 13.02.2023 in Bail Application No. 472/2023). 23. As the aforesaid offence is a bailable offence and as an application under section 482 of the BNSS is maintainable only when the offence involved is non-bailable, hence, this instant anticipatory bail application under Section 482 of BNSS is not maintainable. However, it is needless to say that getting bail, in the event of his arrest, in a bailable offence is the statutory right of the petitioner and he shall be accordingly dealt with in the event of his arrest. 24. With the above observation, this Anticipatory Bail Application is accordingly disposed of. JUDGE Comparing Assistant