THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM & Anr. v. THE STATE OF ASSAM

BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

06.05.2022 ORDER Heard Shri S.H. Sikdar, learned counsel for the applicants, namely 1. Md. Page No.# 2/4 Imran Ali and 2. Md. Jeherul Hoque, who have filed this bail application under Section 439 of the Cr.PC praying for bail in connection with Special (NDPS) Case No. 20/2021 under Section 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, R/W Section 27(a)(b)(ii) Drugs & Cosmetic Act, 1940. I have also heard Shri RJ Baruah, learned Addl. Public Prosecutor, Assam. Pursuant to the order of this Court, scanned copy of the case records have been transmitted to this Court. The applicants were arrested on 14.06.2021. Shri Sikdar, the learned counsel for the applicants has firstly submitted that the allegations in the F.I.R. is vague wherein the seizure has been shown to be made from both the chicken shop belonging to the petitioner no. 1 as well as from a four wheeler. He submits that the four wheeler has been given zimma to the registered owner.

Secondly, the learned counsel has submitted that in the meantime two seizure witnesses have been examined whose statements do not support the case of the prosecution. The learned counsel submits that considering the length of detention and the fact that the trial has already begun, custodial detention may not be necessary. On the other hand, Shri Baruah, the learned Addl. Public Prosecutor, Assam submits that the contraband seized comes under the commercial quantity and is chemically manufactured drugs. There is no challenge to the recovery and seizure made from the chicken shop of the petitioner no. 1. As regards, the deposition of the seizure witnesses, the learned Addl. Public Prosecutor, Assam has submitted that such deposition would be taken into consideration in isolation. Rather, at the same time by referring to the examination of the informant- PW1, the prosecution side has submitted that the Page No.# 3/4 applicants have been implicated by the said statements.

After hearing the parties and on perusal of the materials on record and also considering that fact the offence is under the NDPS Act where, while granting bail, a number of other factors, namely nature of the contraband, the quantity and the nature of accusation/involvement of the applicants would have to be taken into consideration, this Court is of the opinion that the applicant is not entitled to the privilege of grant of bail. This Court also cannot ignore the objective and purpose of the enactment which is to curb the menace of drugs in the society. Further, Section 37 of the NDPS Act lays down that before granting a bail, the relevant factors are that the Court should come to a satisfaction that prima facie the petitioner is not guilty of the offence and also the petitioner has to satisfy the Court that in case bail is granted, he is not likely to commit further offence. The aforesaid two factors do not seem to be fulfilled in the present case.

The Hon’ble Supreme Court in a number of decisions, including a recent decision of Musstt Rehana Begum Vs. State Of Assam & Anr. in Criminal Appeal No 118 of 2022 decided on 21-01-2022 while reiterating the law laid down in the case of (2021) SCC Online SC 315 (M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors) had held that an F.I.R. need not be an encyclopedia but the same should only contain the gist of facts so as to set the criminal law into motion. The relevant paragraph is paragraph 23(xii) which is as follows: "23(xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court Page No.# 4/4 should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/ FIR does not deserve to be investigated or that it amounts to abuse of process of law.