Page No.# 1/5 GAHC010025752025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./380/2025 JAMAL HUSSAIN S/O LATE ANWAR UDDIN RESIDENT OF VILLAGE MIRJAPUR, P.S. BADARPUR, DIST. KARIMGANJ, (SRIBHUMI), ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSCUTOR, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,U U KHAN,MR. A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 03.03.2025 1. Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. M. P Goswami, learned Additional Public Prosecutor. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner Jamal Hussain, who has been detained behind the bars since 05.10.2024 in connection with Special Case (NDPS) No. 109 / 23 pending before the Court of Learned Sessions Judge, Sribhumi. 3. The gist of the accusation in this case is that on 22.08.2023, one Page No.# 2/5 Dibakar Gogoi, S.I of Police had lodged an F.I.R before the Officer in Charge of Karimganj P.S, inter alia, alleging that on 21.08.2023 at about 12.10 PM, the Additional S.P (HQ), Karimganj received an information through reliable sources regarding illegal transportation of suspected Yaba tablets from Seralipur towards Karimganj. Accordingly, a police team was constituted and dispatched towards Naka checking point in front of M.M Home Fashions at Chargola. While the police team arrived there, they saw a person holding a black color polythene in his hand who was trying to flee away from the police team. The said person was apprehended and after following due procedure, he was searched. The said person was identified as Joynal Hoque. After due search of the said person, 2.191 kg of suspected Yaba tablets (containing methamphetamine) was recovered from his possession. 4. It is further stated in the FIR that during interrogation, Joynal Hoque revealed that the suspected Yaba tablets were peddled by him, as per the instructions of the present petitioner, namely, Jamal Hussain who was staying in a rented house situated at Sorapur, Rangabazar. Accordingly, the police team rushed to Sorapur, Rangabazar at about 3:50 PM and as showed by Joynal Hoque, searched the house of Jamal Hussain. It is further stated in the FIR that during the search operation, the petitioner Jamal Hussain was not found in the said house. However, his wife was present there. During the search, a total of 0.489 kg of suspected Yaba tablets were recovered which were kept in a black color polythene hanging on the wall of the kitchen of the said house. 5. Mr. A Ahmed, learned counsel for the petitioner submits that the petitioner is not involved in the offence alleged in the FIR in any manner. He submits that apart from the statement of the co-accused, there is no material on record to show that the house from which the contraband was seized, was the rented house of Jamal Hussain. He further submitted that though the wife Page No.# 3/5 of the petitioner is stated to be there in the rented house from which the recovery of the contraband was made, however, apart from the statement of the first informant, there is nothing on record to show her presence. 6. Learned counsel for the petitioner submits that in case of the search made in the premises, Section 103 (6) of the BNSS, 2023 (corresponding to Section 100(6) of Cr.P.C) mandates that the occupants of the place searched shall have to be delivered a copy of the seizure list. 7. Learned counsel for the petitioner further submits that in the seizure list, no signature of the wife of the petitioner was obtained. Neither any document is there on record to suggest that the wife of the petitioner was present in the house where the search was made. 8. Learned counsel for the petitioner has submitted that thus, apart from the statement of the co-accused namely, Joynal Hoque, there is no admissible material against the present petitioner. Hence, he submits that the embargo of Section 37 of the NDPS Act, 1985 is not applicable in this case and the petitioner is entitled to get bail in this case. 9. Learned counsel for the petitioner has also submitted that in the seizure list prepared in this case at the time of recovery of the seized contraband, the name of the owner of the house has been shown as one Azad Uddin of Sorapara under Badarpur Police Station. However, he submits that from the statement recorded by the Investigating Officer, under Section 161 of Cr.P.C, one witness namely, Angoor Bibi, w/o Lt. Mukul Ali, shows that it was the said Angoor Bibi who is the owner of the house from which the contraband was seized. He further submits that the name of Azad Uddin has not been mentioned in the list of prosecution witnesses in the charge-sheet and therefore, he submits that there is no material against the petitioner in the instant case. Page No.# 4/5 10. On the other hand, Mr. M. P Goswami, learned Additional Public Prosecutor has vehemently opposed the grant of the bail to the present petitioner. He submits that apart from the statement of the co-accused, there are other materials including the statement of other witnesses recorded under Section 161 of CrPC to suggest that the house from where the contraband was seized was used as a rented premises by the petitioner namely, Jamal Hussain. 11. Learned Additional Public Prosecutor further submits that it is due to the conduct of the present petitioner that the trial of this case has been delayed and the charges are not yet framed. He submits that though the petitioner approached this court on an earlier occasion by filing an application for Anticipatory Bail which was registered as AB 948/2024 and which was disposed of by an order dated 24.05.2024 directing the petitioner to appear before the Trial Court. However, the learned Additional Public Prosecutor submits that the petitioner did not comply with the direction of this court and evaded the course of justice. Therefore, he was ultimately arrested on the strength of Non-bailable Warrant of Arrest issued by trial Court. 12. I have considered the submissions made by the learned counsel of both the sides and have gone through the materials available on record carefully. 13. On perusal of the materials available on record, it appears that the second seizure of contraband made in this case was from the kitchen of the rented premises of the present petitioner. The seizure was of 0.989 Kg of suspected Yaba tablets containing methamphetamine. 14. Though, the learned counsel for the petitioner has been able to show some discrepancy in the materials on record regarding the ownership of the rented premises, however, it appears from the materials that at this stage there are sufficient materials to indicate that the rented premises was of the present Page No.# 5/5 petitioner and though the signatures of his wife were not obtained on the seizure list. However, the eye-witnesses have deposed that she was present there at the time of recovery of seized contraband. The name of the owner of the premises from where the seizure was made is shown as Azad Uddin in the seizure list, whereas the witnesses who have been examined under Section 161 of the Cr.P.C. have named the owner as Angoor Bibi. 15. Be that as it may, the question at this stage is not as to who is the owner of the rented premises, but as to who was residing and using the rented premises at the time when the seizure of the contraband was made and there are sufficient materials on record to indicate that the premises from where the seizure was made was being used for residing by the petitioner and his wife. Hence, the Court is of considered opinion that at this stage there are sufficient materials to show the implicity of the present petitioner in the offence alleged in this case. Hence, the embargo of Section 37 would be applicable to this case. As the quantity of contraband seized in this case is of commercial quantity, the embargo of Section 37 is applicable in the case of petitioner. More so, he has been detained behind the bars since 05.12.2024 only and, therefore, in his case the benefit of bail on the ground of prolonged incarceration may not be given. 16. For the reasons discussed herein before, this Court is constrained to dismiss the application for bail of the present petitioner at this stage. JUDGE Comparing Assistant