Page No.# 1/5 GAHC010259052024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3733/2024 SHAHIDUL ISLAM BEPARI @ PINTU S/O JAHAN UDDIN BEPARI R/O DHARMASHALA PART-IV, P.S. DHUBRI DIST. DHUBRI, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. A AHMED, MR A AHMED,U U KHAN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 07.02.2025 Heard Mr. A. Ahmed, learned counsel for the accused and Mr. B. Sarma, learned Additional Public Prosecutor for the State. 2. This application under Section 483 of the BNSS., is preferred by accused, namely, Shadidul Islam Bepari @ Pintu, who has been languishing in jail hazot since 02.09.2023, in connection with the Special Case No. 41/2024, pending before the learned Special Judge (Additional), Dhubri, arising out of the Dhubri P.S. Case No. 345/2023, under Sections 22(c) of the Page No.# 2/5 NDPS Act, for granting bail. 3. It is to be noted here that the aforementioned case has been registered on the basis of one FIR lodged by S.I. Deepjyoti Engti, on 01.09.2023. 4. The essence of allegation in the FIR dated 01.09.2023 is that acting on a tip off, the informant had apprehended one Rafiqul Hoque @ Mirajul Hoque and recovered 65 numbers of small plastic container with suspected Heroine and 288 numbers of Spas - Trancan Plus Tablet from his possession. And during interrogation, he disclosed that one Abu Bakkar Siddique and Shahidul Islam Bepari are also involved in the business of selling contraband substances. Accordingly, search was conducted in the house of Shahidul Islam Bepari and recovered 190 numbers of Yaba Tablet along with 288 numbers of Spas - Trancan Plus Tablet from his possession and thereafter, seized the same preparing seizure list, in presence of witnesses. 5. Mr. Ahmed, learned counsel for the accused submits that the accused was arrested on 02.09.2023, and since then he has been languishing in jail hazot for more than one year. Mr. Ahmed further submits that trial has already begun and altogether 18 witnesses have been cited in the charge sheet and out of the said 18 witnesses, 13 witnesses have already been examined. Mr. Ahmed also submits that the said witnesses, especially the seizure witnesses have not supported the prosecution case. Mr. Ahmed further submits that he is ready to face the trial and he will appear before the court on each and every date and therefore, it is contended to allow the petition. 6. On the other hand, Mr. Sarma, learned Additional Public Prosecutor has vehemently opposed the petition. Referring to the statements of the Page No.# 3/5 witnesses, especially the informant and the documents placed on record, Mr. Sharma submits that there are materials against the present accused. Mr. Sarma further submits that the contraband substances, so recovered from the possession of the accused are of commercial quantity and as such, the accused has to satisfy the twin requirements of Section 37 of the NDPS Act, that he is not guilty of the offence and that he will not commit any offence while on bail, and from the materials placed on record, satisfaction cannot be derived at that the requirements of section 37 of the Act could be satisfied by the accused and as such, the accused cannot be granted bail at this stage and therefore, it is contended to dismiss the petition. 7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the scanned copy of the record received from the learned trial court. 8. It appears from the record that the accused was arrested on 02.09.2023, and since then he has been languishing in jail hazot for more than 1 year. Further, it appears that out of the 18 cited witnesses, 13 witnesses have already been examined and the trial is going on. 9. Indisputably, the quantity of contraband substances recovered and seized from the possession of the accused is of commercial quantity. And as such, the accused has to satisfy the twin requirements of Section 37 of the NDPS Act, that he is not guilty of the offence and he will not commit any offence while on bail and unless these two conditions are satisfied with, the accused cannot be released on bail, as held by Hon’ble Supreme Court in the case of Union of India vs. Ajay Kumar Singh @ Pappu, in Criminal Appeal No. 952 of 2023 [Arising out of SLP (CRL.) No.2351 of 2023] and also in the Page No.# 4/5 case of Narcotics Control Bureau vs. Kashif, in Criminal Appeal No. 5544 of 2024 [arising out of Special Leave Petition (Crl.) No. 12120 of 2024]. 10. It is to be noted here that in the case of Ajay Kumar Singh @ Pappu (Supra), the Hon’ble Supreme Court has held as under:- “In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.” 11. It is also to be note here that in the case of Kashif (Supra), Hon’ble Supreme Court has held as under: “39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. ………………………………………………...” 12. In the instant case, from the evidence of the witnesses examined so far and also from the scanned copy of the record and also from the Page No.# 5/5 submissions, so advanced by the learned counsel for the accused, this court is unable to derive its satisfaction that the accused is not guilty of the offence and he will not commit any offence while on bail. It is a fact that some of the witnesses have not supported the prosecution case. But, there is also evidence to support recovery of the contraband substance from the accused. 13. Considering above and also the nature and gravity of the offence allegedly committed by the present accused this court is of the view that this is not a fit case where the privilege of bail can be granted to the accused at this stage and accordingly, the petition stands dismissed. 14. However, the learned trial court is requested to conclude the trial as soon as practicable, without being influenced by any of the observation made herein above, as the same is made only to dispose of this bail application. JUDGE Comparing Assistant