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Gauhati High Court
Page No.# 1/8 vs The State Of Assam on 29 April, 2025
Page No.# 1/8
GAHC010066502025
2025:GAU-AS:5195
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./983/2025
MD ANASH
S/O. MD. MAOLANA ALIMUDDIN, R/O. LILONG USOIPOKPI THAROULOK
POLICE STATION-LILONG DISTRICT. THOUBAL, MANIPUR- 795130
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. D GOGOI, MS T WAPANGLA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
Date : 29.04.2025
Heard Mr. N. Wotsa, learned counsel appearing for the
petitioner. Also heard Mr. B. Sharma, learned Additional Public
Prosecutor appearing for the State respondent.
2. This application is filed under Section 483 of BNSS Act, 2023
seeking grant of regular bail to the petitioner i.e. Md. Anash, who has
been arrested on 28.10.2023 in connection with Dillai PS Case
Page No.# 2/8
No.60/2023 arising out of G.R. Case No.321/2023 under Section 21(c)
of the NDPS Act, 1985.
3. The brief facts of the case is that the Sub Inspector of the Dillai
Police Station, Karbi Anglong, Assam lodged a FIR on 28.10.2023
alleging inter-alia that about 10:30 P.M., upon receiving an information
from IC Lahorijan PP, Police Station- Dillai regarding detention of one
white colour XUV 300 bearing Registration No. AS26E2081 coming
from Manipur suspected to be carrying drugs and as such, arrested the
petitioner in connection with the aforesaid case.
4. It is the further case of the prosecution that a total 50 nos. of
soap boxes, 11 soap boxes were hidden inside the AC and music
system slot and 39 nos. of soap boxes were recovered from the right
side of the rear portion of the car, collectively weighing 637.28 grams,
which was driven by the petitioner. Accordingly, a FIR was registered.
5. Mr. N. Wotsa, learned counsel appearing for the petitioner
submits that the petitioner was the driver of the vehicle from which
the contraband articles has been seized and hence had no knowledge
that the recovered articles was kept hidden in the vehicle. He further
submits that though trial has commenced, however, only 6 witnesses
have been examined and the petitioner is languishing in jail since last
almost 2 (two) years. He further submits that the mandatory
procedure as contained under Section 41 and 42 of the NDPS Act has
also not been complied in the present case. He accordingly submits
that the petitioner is liable to be entitled for release on bail.
6. Per contra, Mr. B. Sharma, learned Additional Public Prosecutor
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appearing for the State respondent submits that the trial is almost
coming to an end inasmuch as out of the 9 prosecution witnesses, 6
witnesses has already been examined and the next date fixed is
05.05.2025. He further submits that the prosecution witnesses so far
examined clearly implicates the petitioner for the alleged offences. He
further submits that from the material available in the scan copy of the
case records of the case, it is evident that there are materials available
to reasonably believe that the petitioner is guilty of the alleged
offence. He accordingly prays that the bail ought not to be given.
7. I have heard the learned counsel appearing for both the parties
and have perused the material available on record including the scan
copy of the trial Court records.
8. It appears that the police personnel upon receiving the
information as regards the alleged commission of the offence
proceeded to the location from where they apprehended the petitioner
and recovered the contraband articles, which were kept hidden in the
car, which was driven by him.
9. It further appears that the trial is going on, wherein out of 9
prosecution witnesses, 6 prosecution witnesses have already been
examined. It further appears that from the scan copy of the case
records placed before this Court that since the 6 prosecution
witnesses, who have been examined so far has clearly implicated the
petitioner for the alleged offence. It further appears that the hidden
quantities of contraband articles weighing 637.28 gram of heroine
have been procured from the possession of the petitioner which was
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being transported from Manipur.
10. In the present case, the offence alleged arising out of the
provision of NDPS Act, apt to refer to the principles laid down by the
Apex Court in the case of Union of India through Narcotic
Control Bureau Lucknow Vs M.D Nawaz Khan in Criminal
Appeal No.1043/2021. Paragraphs 18 19 and 20 are reproduced
hereunder for ready reference:-
“18. Under Section 37(1)(b)(ii), the limitations on the grant of bail for
offences punishable under Sections 19, 24 or 27A and also for
offences involving a commercial quantity are:
(i) The Prosecutor must be given an opportunity to oppose the
application for bail; and
(ii)There must exist reasonable grounds to believe’ that (a) the person
is not guilty of such an offence; and (b) he is not likely to commit any
offence while on bail.
19. The standard prescribed for the grant of bail is ‘reasonable
ground to believe’ that the person is not guilty of the offence.
Interpreting the standard of ‘reasonable grounds to believe’, a two-
judge Bench of this Court in Shiv Shanker Kesari (supra), held that:
“7. The expression used in Section 37(1)(b)(ii) is “reasonable
grounds”. The expression means something more than prima
facie grounds. It connotes substantial probable causes for
believing that the accused is not guilty of the offence charged
and this reasonable belief contemplated in turn points to
existence of such facts and circumstances as sufficient in
themselves to justify recording of satisfaction that the accused
is not guilty of the offence DRID charged.
8. The word “reasonable” has in law the prima facie meaning of
reasonable in regard to those circumstances of which the actor,
called on to act reasonably, knows or ought to know. It is
difficult to give an exact definition of the word “reasonable”.
“7…. In Stroud’s Judicial Dictionary, 4th Edn., p. 2258 states
that it would be unreasonable to expect an exact definition of
Page No.# 5/8the word ‘reasonable’. Reason varies in its conclusions
according to the idiosyncrasy of the individual, and the times
and circumstances in which he thinks. The reasoning which
built up the old scholastic logic sounds now like the jingling of a
child’s toy.”
(See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar
[(1987) 4 SCC 497) (SCC p. 504, para 7) and Gujarat Water
Supply and Sewerage Board v. Unique Erectors (Gujarat) (P)
Ltd. [(1989) 1 SCC 532] […]
10. The word “reasonable” signifies “in accordance with
reason”. In the ultimate analysis it is a question of fact, whether
a particular act is reasonable or not depends on the
circumstances in a given situation. (See Municipal Corpn. of
Greater Mumbai. Kamla Mills Ltd. ((2003) 6 SCC 315]
11. The court while considering the application for bail with
reference to Section 37 of the Act is not called upon to record a
finding of not guilty. It is for the limited purpose essentially
confined to the question of releasing the accused on bail that the
court is called upon to see if there are reasonable grounds for
believing that the accused is not guilty and records its
satisfaction about the existence of such grounds. But the court
has not to consider the matter as if it is pronouncing a judgment
of acquittal and recording a finding of not guilty.
20. Based on the above precedent, the test which the High Court and
this Court are required to apply while granting bail is whether there
are reasonable grounds to believe that the accused has not
committed an offence and whether he is likely to commit any offence
while on bail. Given the seriousness of offences punishable under
the NDPS Act and in order to curb the menace of drug-trafficking in
the country, stringent parameters for the grant of bail under the
NDPS Act have been prescribed.”
11. Reading of the above, apparent that the test which this Court is
required to apply while granting bail under section 37 of the NDPS Act
is to see whether there are reasonable grounds to believe that the
petitioner has not committed an offence under the Act and whether he
is likely to commit any offence while on bail.
12. Undoubtedly, given the seriousness of an offence punishable
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under the NDPS act, stringent parameters for grant of bail under the
NDPS Act, have been prescribed in order to carp the menace of drug
trafficking in the country.
13. In the present case, it is pertinent to note that the contraband
articles have been seized from the vehicle, which was driven by the
petitioner and was the sole occupant of the said vehicle.
14. The argument of Mr. Mr. N. Wotsa, learned counsel appearing
for the petitioner to the effect that the petitioner was not having
conscious possession of the contraband articles which was found from
the vehicle which he was driving as he was a mere driver cannot be
accepted at this stage.
15. Section 8 of the NDPS Act, 1985 prohibits a person from
possessing any narcotic drugs or psychotropic substance.
16. Apt to refer to Section 35 of the NDPS Act, 1985, which is
reproduced hereunder for ready reference:-
“35. Presumption of culpable mental state.-(1) In any prosecution
for an offence under this Act which requires a culpable mental state
of the accused, the Court shall presume the existence of such
mental state but it shall be a defence for the accused to prove the
fact that he had no such mental state with respect to the act
charged as an offence in that prosecution.
Explanation. In this section “culpable mental state” includes
intention, motive knowledge of a fact and belief in, or reason to
believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only
when the court believes it to exist beyond a reasonable doubt and
not merely when its existence is established by a preponderance of
probability.”
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17. Apt to refer to Section 54 of the NDPS Act, 1985, which is
reproduced hereunder for ready reference:-
“54. Presumption from possession of illicit articles. In trials under
this Act, it may be presumed, unless and until the contrary is
proved, that the accused has committed an offence under this Act
in respect of-
(a) any narcotic drug or psychotropic substance or controlled
substance;
(b) any opium poppy, cannabis plant or coca plant growing on any
land which he has cultivated;
(c) any apparatus specially designed or any group of utensils
specially adopted for the manufacture of any narcotic drug or
psychotropic substance or controlled substance; or (d) any
materials which have undergone any process towards the
manufacture of a narcotic drug or psychotropic substance or
controlled substance, or any residue left of the materials from
which any narcotic drug or psychotropic substance or controlled
substance has been manufactured, for the possession of which he
fails to account satisfactorily.”
18. In the present case, the contraband articles having been seized
from the possession of the petitioner, the possession is established.
That apart, it is further apparent that out of the 9 prosecution
witnesses, 6 prosecution witnesses, who have been examined so far
has also implicated the petitioner for the alleged offence. Therefore,
the burden is now upon the petitioner to show how the same has been
seized from the vehicle which he was driving. However, the trial having
been not concluded the said stage has not arrived.
19. The argument of the learned counsel appearing for the
petitioner to the effect that the trial is vitiated for non compliance of
the statutory procedural prescriptions under the relevant provisions of
Page No.# 8/8
law is also a matter of fact which has to be raised during the trial. In
such cases, the fact that the petitioner is languishing in jail for the last
almost 2 (two) years cannot be the sole criteria for granting bail in
relation to offence under special Act like that of NDPS Act. The entire
facts and circumstances of the case vis-à-vis the rigor of Section 37 of
the NDPS Act has to be looked into for adjudicating the bail prayer.
20. Thus, what cannot be overlooked at this stage is that the
petitioner was caught with the seized contraband articles of large
quantity which established possession at this stage. Hence, it appears
that there are materials available on record for reasonably believing
that the petitioner is guilty of the offence alleged. That apart, since out
of 9 prosecution witnesses, 6 has already been examined, the trial
appears is going to come to a conclusion soon.
21. Therefore, considering the facts and circumstances of the case
and keeping in mind the rigors of section 37 of the NDPS Act in mind,
this Court is not inclined to grant bail to the petitioner at this stage.
Accordingly, the bail application stands rejected.
JUDGE
Comparing Assistant
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