Kazi Shihab Uddin@ Shihab Uddin Kazi @ Md. Sahibuddin Kazi vs State Of Assam

Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. A. Ahmed, learned counsel for the accused-petitioner and Mr. K.K.

Parasar, learned Additional Public Prosecutor for the respondent State of Assam.

By this application filed under Section 439, Code of Criminal Procedure, 1973 [‘CrPC’ and/or ‘the Code’, for short], the accused-

petitioner viz. Kazi Shihab Uddin @ Shihab Uddin Kazi @ Md. Sahibuddin Kazi has prayed for his release on bail in connection with NDPS Case no.

36/2021, arising out of Gorchuk Police Station Case no. 751/2020 registered for offences punishable under Sections 21[C]/29 of the Narcotic Drugs

and Psychotropic Substances [NDPS] Act, 1985.

The accused-petitioner after arrest, was produced before the Court of learned Chief Judicial Magistrate, Kamrup [M], Guwahati on 23.12.2020 and

since then he is in custody. The Investigating Officer of the case after completing the investigation in connection with Gorchuk Police Station Case no.

751/2020, had submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 84/2021 dated 31.05.2021. After submission of charge

sheet, the case has been registered as NDPS Case no. 36/2021.

Mr. Choudhury, learned Senior Counsel for the accused-petitioner has submitted that as per the First Information Report [FIR] dated 22.12.2020

and the forwarding report dated 23.12.2020, alleged contraband substance were recovered from the possession of both the accused persons. He has

submitted that the charge sheet was submitted on 31.05.2021. It was prior to the submission of the charge sheet, the other arrested accused person

viz. Md. Suwail Ahmed, also arrested on 23.12.2020, was released on bail by an order dated 18.01.2021. But the accused-petitioner is still in custody

since 23.12.2020. It is his submission that the accused-petitioner may also be released on the ground of parity subject to any terms and conditions. The

accused-petitioner will abide by any such terms and conditions to stand the trial. He has placed reliance in the decision of the Hon’ble Supreme

Court of India in Ajmer Singh vs. State of Haryana, reported in [2010] 3 SCC 746.

Mr. Parasar, learned Additional Public Prosecutor has submitted that from the materials on record, it is evident that other accused person and the

present accused-petitioner are not similarly situated and, as such, release of the accused-petitioner on bail, on the ground of parity, is not sustainable.

The prayer for bail is to be considered keeping in view the restrictions imposed in the NDPS Act, 1985.

The scanned copies of the case record of NDPS Case no. 36/2021 and the concerned case diary were requisitioned from the Court of learned

Special Court [Court of learned Additional Sessions Judge no. II], Kamrup [M], Guwahati by an order dated 23.12.2021 and the same have been

received.

I have considered the submissions of the learned counsel for the parties and have also perused the materials available in the case record of the

NDPS Case no. 36/2021 and the concerned case diary.

The FIR was lodged by a Sub-Inspector of Police attached to Gorchuk Police Station and In-Charge, ISBT Outpost on 22.12.2020. As per the FIR,

the informant received a confidential output from the Crime Branch, Guwahati at around 04-00 p.m. on 22.12.2020 to the effect that there were illegal

peddling/transportation of drugs at the ISBT campus. Accordingly, a general diary entry being General Diary Entry no. 427 dated 22.12.2020 was

registered. Thereafter, a team of police personnel including the informant, proceeded to the ISBT complex to carry out search operation therein.

During the search operation, the accused-petitioner was found inside a bus bearing registration no. AS-10/C-6456 which was parked at Bay no. 24

within the ISBT complex. When intercepted, the accused-petitioner was found carrying a bag. The bus had come from Karimganj. When the

accused-petitioner was searched, 30 nos. of soap cases of different colours containing plastic packets/polythene with powdery substances were found

inside the bag apart from other articles. When the driver of the bus i.e. Md. Suwail Ahmed was interrogated he could not give any satisfactory reply.

In presence of the Assistant Commissioner of Police, who had granted the informant authority, the informant seized and drew samples of powdery

substances from the soap cases as the same were suspected to be drugs. When the suspected contraband substances were weighed in presence of

witnesses, the total weight was found to be 400 gms. The two accused persons i.e. the present accused-petitioner and Md. Suwail Ahmed [the bus

driver] were apprehended.

On the basis of the said FIR, Gorchuk Police Station Case no. 751/2020 was registered under Sections 21(C)/29 of the NDPS Act and investigation

was initiated.

During the course of investigation, samples drawn from the seized suspected contraband substances were forwarded to the Forensic Science

Laboratory [FSL], Assam at Guwahati. A chemical examination report was thereafter, received from the FSL, Assam at Guwahati on 03.03.2021. As

per the FSL report dated 03.03.2021, the samples gave positive test for heroin. The percentage of heroin found in the sample was 82.37. The

materials in the case diary indicate that search, recovery and seizure of the contraband substances [heroin] were made in presence of a number of

independent witnesses. The witnesses in their statements recorded under Section 161, CrPC, found available in the case diary, have stated that the 30

nos. of packets containing the contraband substances [heroin] were found in the bag carried by the passenger of the bus i.e. the accused-petitioner.

The witnesses have not mentioned about any recovery from the possession of the driver of the bus viz. Md. Suwail Ahmed.

Though Mr. Choudhury, learned Senior Counsel for the accused-petitioner has submitted that the other arrested person viz. Md. Suwail Ahmed

was released on bail by an order dated 18.01.2021 passed in bail application, B.A. Case no. 85/2020, a copy of the same has not been placed before

this Court.

Mention of heroin is found in Entry no. 56 in the Table appended to the NDPS Act, 1985 issued in terms (viia) and (xxiiia) of Section 2 of the

NDPS Act, 1985. Evidently, a quantity of 400 gms of heroin is commercial quantity.

At this stage, it is apposite to refer to Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 as substituted by Act 2 of 1989 with

effect from 29.05.1989 with further amendment by Act 9 of 2001, reads as follows :

Offences to be cognizable and non-bailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cognizable;

(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 â€

(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.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure,

1973 (2 of 1974), or any other law for the time being in force on granting of bail.

It is settled law vide Narcotics Control Bureau vs. Kishan Lal and others, (1991) 1 SCC 705 that the powers of this Court to grant bail under

Section 439, CrPC are subject to the limitations contained in Section 37 of the NDPS Act, 1985 and the restrictions placed on the powers of the Court

under Section 37, NDPS Act, 1985 are applicable to this Court also in the matter of granting bail.

Section 37 of the NDPS Act, 1985 starts with a non-obstante clause. Keeping the non-obstante clause in mind, a reading of sub-section (2) of

Section 37 of the NDPS Act, 1985 makes it clear that the power to grant bail to a person accused of having committed an offence either under

Section 19 or Section 24 or Section 27A and also offences involving commercial quantity under the NDPS Act, 1985 is not only subject to the

limitations imposed under Section 439, CrPC, it is also subject to the restrictions placed by sub-clause (b) of sub-section (1) of Section 37 of the NDPS

Act, 1985. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other two conditions viz. (i) the

satisfaction of the Court that there are “reasonable grounds†for believing that the accused is not guilty of the alleged offence; and (ii) that he is

not likely to commit any offence while on bail, have to be satisfied. In other words, these limitations are in addition to those prescribed under the CrPC

or any other law in force on the grant of bail. The operative part of Section 37, NDPS Act, 1985 is in the negative form. Such stringent restrictions

have been put on the discretion of the Court for considering application for release of a person accused of offences prescribed therein by the

Legislature consciously in view of the seriousness of the offences. The conditions mentioned in Section 37 of the NDPS Act, 1985 are cumulative and

not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on ""reasonable grounds"".

In Satpal Singh (supra), the restrictions placed on the discretion to be exercised by the Court while considering an application for bail, by way of

Section 37, NDPS Act, 1985 have been reiterated. It has been observed that before allowing a bail application, the Court must be satisfied that there

are “reasonable grounds†for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on

bail. Materials on record are to be seen and the antecedents of the accused are to be examined to enter such a satisfaction. The Court has held that

these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail.

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 [Collector of Customs, New

Delhi vs. Ahmadalieva Nodira, [(2004) 3 SCC 579 and State of Kerala etc. vs. Rajesh etc., [AIR 2020 SC 721]. The Court while considering the

application for bail with reference to Section 37 of the NDPS Act, 1985 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 to record its satisfaction about the existence of such grounds. Thus, recording of satisfaction on both the aspects,

noted above, is sine qua non for granting of bail under the NDPS Act, 1985.

The phrase “reasonable grounds†to believe also came to be considered by the Hon’ble Supreme Court of India in Union of India vs. Shiv

Shanker kesari, reported in [2007] 7 SCC 798, wherein the observations were made to the following effect.

“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 are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of

the offence 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 “reasonableâ€​.

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 Corporation of Greater Mumbai vs. 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.â€​

From a perusal of the materials on record, as have been briefly outlined above, it is prima facie evident that it was the accused-petitioner who as a

passenger of the bus bearing registration no. AS-10/C-6456 was carrying the bag. It was from inside the said bag, the packets, 30 in nos., containing

powdery substance were recovered and seized. The total weight of the powdery substance when weighed, was found to be 400 gms. The FSL report

indicated that the powdery substance was heroin. The quantity of heroin is of commercial quantity. The witnesses have corroborated the fact of

search, recovery and seizure. The case of the accused-petitioner is not found similarly situated with the other arrested accused person, Md. Suwail

Ahmed.

The principle of parity in criminal case is that where the case of an accused is similar in all respects as that of another accused the benefit

extended to an accused should be extended to the co-accused. The principle is based on the premise that likes should be treated alike. For bringing in

the application of the principle of parity, both the accused must be involved in the same crime and must be involved in the similar manner. All the

circumstances of the case are to be taken into consideration while considering the application of the principle of parity and the Court has to consider

the manner in which the crime was committed and overt or covert acts which are attributed to the accused before the Court and that of the co-

accused. When there are differences, the principle of parity would have no application. The same principle has been reiterated in the decision in

Ajmer Singh [supra], relied on by the learned Senior Counsel for the petitioner.

In an application for bail involving contraband of commercial quantity which brings in the limitations prescribed in Section 37 of the NDPS Act,

1985, it is not the period of detention but the merits qua the twin conditions laid down in Section 37 of the NDPS Act, 1985 which are required to be

considered.

In the above fact situation obtaining in the case, this Court is not persuaded to hold a view that there are reasonable ground to believe that the

accused-petitioner is not guilty of the offence under Section 22(C)/29 of the NDPS Act, 1985. The accused-petitioner has also failed to make out a

case on the ground of parity.

Upon such consideration, this Court finds that the application is bereft of any merit. Consequently, the same is dismissed.

It is, however, made clear that the observations made above are made only for consideration of the accused-petitioner’s prayer for bail and

none of the observations made in this order shall have any bearing on the trial of the accused-petitioner.

The application stands disposed of in the aforesaid terms.