Page No.# 1/9 GAHC010259062024 2025:GAU-AS:1918 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3707/2024 UMESH MAHATO S/O RAJDEV MAHATO, R/O VILL- BARHARWA LAKHANSEN, P.S. DHAKA, DIST. EAST CHAMPARAN, BIHAR-845418 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR A TALUKDAR, MR. DITUL DAS,D R TALUKDAR,MS TINLUNG Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 24.02.2025 Heard Mr. D. Das, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent. Page No.# 2/9 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 325/2024, arising out of Guwahati GRPS P.S. Case No. 74/2024, under Section 21(c) read with Section 29 of the NDPS Act, 1985, pending before the Court of learned Additional Sessions Judge No. 2, Kamrup(M), Guwahati. 3. Scanned copy of the Case Record along with the Case Diary has been received. Perused the same. Heard both sides. 4. It is submitted by Mr. Das, learned counsel for the petitioner, that the present accused/petitioner is behind the bar since 14.03.2024. The case has already been charge-sheeted and 2 (two) PWs have already been examined by the prosecution. Last prosecution witness, i.e. PW-2, was examined on 18.02.2025 and the case is also fixed for further recording of evidences. But, from the evidences of PWs-1 & 2, who are the vital witnesses of the prosecution, it is seen that nothing has been seized from the conscious possession of the present petitioner and they did not implicate the present petitioner in the case. He further submitted that from the evidence of PW-1, it also reveals that no contraband was found from the body of the present petitioner at the time of search and seizure of the alleged contraband. More so, both the PWs also contradict the train from which the alleged recovery was made. As per PW-1, the search was made in Awadh Assam Train, whereas as per PW-2, the search was made in Kanchanjunga Express. Accordingly, he submitted that there is no evidence at all to substantiate the plea of the prosecution in regards to recovery of the contraband from the conscious possession of the accused/petitioner. Page No.# 3/9 5. Mr. Das, further relying on a decision of the Hon’ble Apex Court passed in the case of Rakesh Kumar Raghuvanshi Vs. The State of Madhya Pradesh (Criminal Appeal No. 1953/2014), submitted that the persons who are merely sitting on the bags or found near the bags, in absence of any other proof, cannot be presumed to be in possession of the contraband seized from the vehicle. 6. Mr. Das further submitted that though the case is charge-sheeted and charge is also framed under Section 29 of the NDPS Act, but there is no evidence to show that there was any conspiracy amongst the accused persons who were apprehended by police to frame charge against the present accused/petitioner under Section 29 of the NDPS Act. In that context, he also relied on a decision of Hon’ble Bombay High Court passed in Criminal Bail Application No. 3624 of 2021 (Aryan Shah Rukh Khan Vs. The Union of India & Anr.) and mainly emphasized on paragraph Nos. 13 & 14 of the judgment, which reads as under: “13. Mr. Singh, learned Additional Solicitor General was justified in relying on the judgment of the Apex Court in the matter of State of Orissa Vs. Mahimananda Mishra reported in (2018) 10 SCC 516 to claim that high degree of evidence is not required at this stage of the proceedings to establish the case of conspiracy, however, this Court is required to be sensitive to the fact that there has to be presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the Applicants. Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants. 14. Having regard to the material brought on record by the Respondent on the issue of conspiracy, this Court prima facie has not noticed any positive evidence against the Applicants on the said issue. This Court is of the opinion that the claim put forth by the Page No.# 4/9 Respondent that Applicants should be considered to have intention to commit an offence under the NDPS Act, having found in possession of commercial quantity, in the backdrop of the case of hatching conspiracy is liable to be rejected.” 7. Mr. Das further submitted that merely because the present petitioner was travelling along with other co-accused persons, the same cannot be the only ground for his arrest or charge against him unless there is any proof of any criminal conspiracy to charge him under Section 29 of the NDPS Act. More so, the accused/petitioner is behind the bar since 14.03.2024 and hence, considering his length of detention also, he may be enlarged on bail. He, being the permanent resident of his addressed locality, will regularly appear before the learned Trial Court below on each and every date to be fixed by the Court. 8. Mr. Borthakur, learned Additional Public Prosecutor, submitted in this regard that the present petitioner is the husband of the co-accused Gauriya Kumari, who was first intercepted or interrogated by the Investigating Team. Further, from the materials available in the Case Record and Case Diary, it is seen that all the accused persons booked their flight tickets from Imphal to Guwahati and then they booked the train tickets together from Guwahati to Muzaffarpur and they, along with all the contrabands they were carrying in their bags, were apprehended and seized by the police personnel on getting prior information. He further submitted that it is not a case that the contraband was found on body search as all the contrabands were recovered from the bags which were carried by the present accused/petitioner along with other co- accused persons. Accordingly, Mr. Borthakur submitted that there are sufficient materials collected by the I.O. during the investigation and there are also sufficient evidence that the conspiracy has been made to deliver the Page No.# 5/9 contrabands, i.e. the Morphine, from Manipur to Muzaffarpur, Bihar which were carried by the present accused/ petitioner along with others and they together moved from Imphal through flight and then again from Guwahati to Muzaffarpur, Bihar by train and booked the train ticket accordingly. There is no procedural lapse found during the investigation and all formalities were observed at the time of search and seizure and hence, it cannot be a case to enlarge the accused/petitioner on bail only on the ground that nothing has been seized from the body of the present petitioner. 9. Mr. Borthakur further submitted that the case relates to commercial quantity and hence, rigor of Section 37 of NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record and Case Diary, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Accordingly, he raised vehement objection and submitted that it is not at all a fit case to enlarge the accused/petitioner on bail at this stage. 10. After hearing the submissions made by the learned counsels for both sides, I have also perused the scanned copy of the Case Record along with the Case Diary. 11. As per allegation, it seen that on 13.03.2024, one WASI Pranamika Barman of Guwahati GRPS lodged an F.I.R. before the Officer-In-Charge of Page No.# 6/9 Guwahati GRPS alleging inter alia that while conducting checking of luggage of passengers in Coach No. H-1 of 15909 DN Avadh Assam Express at PF No. 03 of Guwahati Railway Station, 1 (one) backpack was found and checked wherein 1 (one) black colour packet wrapped with transparent plastic containing suspected Morphine weighing 73 grams (approximately) was recovered and the present accused/petitioner, along with other accused persons were apprehended and the contrabands were seized and accordingly a case being Guwahati GRPS Case No. 74/2024 was registered under Sections 21(c)/29 of the NDPS Act. 12. Further, from the record, it is seen that the present accused/petitioner was arrested in connection with this case on 14.03.2024 and the Charge-Sheet of the case was filed on 19.08.2024. However, it is an admitted fact that the learned Trial Court below had already examined 2 (two) witnesses out of 9 (nine) numbers of listed witnesses. It is also an admitted fact that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow. 13. For ready reference, Section 37 NDPS Act is extracted hereinbelow: “37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (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.” Page No.# 7/9 14. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if there is reasonable ground for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, from the materials available in the case record, there cannot be any reasons to believe that the accused/petitioner is not guilty of such offence or he is not likely to commit any offence while on bail. Rather, from the materials so far collected by the I.O., it is seen that the present accused/petitioner, along with others, are involved in drug trafficking. More so, from the flight tickets and the train tickets, which were booked by the present petitioner along with other co- accused persons, it is prima facie reveals that there is a conspiracy for delivery of the contraband (Morphine) from Imphal to Muzaffarpur. 15. In this regard, a judgment of the Hon’ble Apex Court can be relied on which was reported in 2024 0 Supreme (SC) 130 (State by the Inspector of Police Vs. B. Ramu), wherein it has been held that in a case involving recovery of commercial quantity of narcotic drug or psychotropic substance, the Court would have to mandatorily record the satisfaction in terms of the rider contained in Section 37 of the NDPS Act. Court would have to record satisfaction that there are grounds for believing that accused is not guilty of offence alleged and that he is not likely to commit any offence while on bail. Further it has been held that the Courts should be slow in granting even regular bail to the accused persons who has the criminal antecedents. 16. Further, from the other materials collected by the I.O., it is seen that the I.O. has collected sufficient materials showing the involvement of the present accused/petitioner in the alleged offence. Thus, it is not a case that the charge- Page No.# 8/9 sheet has been filed only on the basis of the statement made by the co- accused, but there are sufficient materials available in the Case Diary which has been collected by the I.O. during investigation. The statement of the co-accused may not be used in trial for convicting the accused persons, but the investigation may carried out on the basis of the statement made by the co- accused or by the arrested person to unearth some other facts of the case and the involvement of the other persons in the alleged offence. More so, in the case of State of Kerala & Ors. Vs. Rajesh & Ors. [(2020) 12 SCC 122] the Hon’ble Supreme Court has held that the “reasonable ground” means something more than the 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. Accordingly, the Hon’ble Supreme Court has held as under: “19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with nonobstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 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 Page No.# 9/9 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.” 17. In The State of Meghalaya Vs. Lalrintluanga Sailo [Special Leave to Appeal (Crl.) No(s). 16021/2023], wherein, in paragraph No. 8 of the judgment, it has been held that “thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and the decisions referred supra revealing the consistent view of this Court that while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible. Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications.” 18. In the light of discussion made above and also considering the seriousness of the offence and the fact that there is a prima facie case against the present accused/petitioner and further considering the view expressed by the Apex Court in the case laws referred to hereinabove, this Court is of the view that it is not a fit case to enlarge the accused/petitioner on bail at this stage. Hence, the present bail application stands rejected. 19. The bail application stands disposed of in terms above. JUDGE Comparing Assistant