Conditions For Grant Of Bail U/S 37 NDPS Act Are Conjunctive; Period Of Detention Immaterial: Gauhati High Court

The Gauhati High Court has held that the three conditions stipulated under Section 37 of the NDPS Act for grant of bail to an accused person are conjunctive in nature.

Justice Sanjay Kumar Medhi ruled that all the three conditions, namely, (i) opportunity to the Public Prosecutor to oppose the bail (ii) prima facie satisfaction regarding availability of ground for believing that the accused is not guilty and (iii) he is not likely to commit any offense while on bail; are required to be fulfilled simultaneously to grant bail.

Holding that the third condition is not fulfilled in the case at hand, the Court denied bail to the applicant who had completed 267 days in custody on September 7.

It noted,

"The first condition is fulfilled and even assuming that the second condition is also fulfilled, the case records demonstrate the involvement of the accused in another case involving the NDPS Act in which he has been charge-sheeted, and he has been facing trial. Since the same is a relevant factor, this Court is of the opinion that the privilege of bail is not entitled to by the applicant."

The Court added,

"As regards the length of detention, apart from the fact that the offence involved is the socio economic offence, the Hon'ble Supreme court in the Sahabuddin case, as indicated above has held that the duration as an under trial prisoner has to be examined from the point of view of the interest of the society."

Background

The present matter is one of bail under Section 439 of Cr.P.C. in connection with an NDPS case involving Sections 17(b), 18(c), 20(b)(ii)(C), 21(C), 25, 27(A) and 29(1) of the NDPS Act, 1985.

Senior Advocate Bhattacharyya, appearing for the applicant, informed the Court that the applicant had completed 267 days in custody. He was arrested merely on suspicion as he was physically present by chance in the house of the prime accused, his maternal uncle.

Bhattacharyya argued that the investigation had been completed in the meantime, and the charge sheet had been filed. It was submitted before the Court that nothing incriminating had been assigned to the applicant other than his mere presence. It is further submitted that the case record would reveal that nothing has been recovered from the applicant's possession, and even during the investigation, the police remand was sought only for the prime accused.

The only connection is a mobile phone which allegedly belonged to the applicant. However, there is nothing on record to show that any investigation was made towards examination of the call records or any other similar forensic analysis to connect the applicant with the offense, the Counsel further submitted.

Arguing on the legal aspects, the Counsel argued that: (a) in the instant case the informant is himself the Investigating Officer and there is a legal bar in this regard; (b) the FIR itself is not admissible as it was registered after the investigation was over; (c) the applicant can at best be termed as a seizure witness and (d) the statements of the independent witnesses do not implicate the applicant.

Additional Public Prosecutor B. Sharma questioned the maintainability that no new or fresh grounds have been stated, and the bail was rejected twice earlier, exhaustively dealing with all aspects.

He argued that the narcotics/contraband seized and cash recovered is of a considerable quantity. It indicates that it is an organized crime involving several persons and cannot be the handiwork of a single individual. It was further contended that the FIR clearly states the applicant's name, and there are materials to suggest that there was prior information regarding the applicant coming to the place of occurrence.

On the merits of the case, it was argued that: (a) it is factually incorrect that the Informant and the Investigating Officer is the same person; (b) NDPS Act being a special enactment which deals with the socio-economic offence, the period of detention is not material; and (c) the argument that the applicant accused was present only by chance is not acceptable as the same is not a reasonable submission appealing to a prudent mind.

Findings

The Court took notice that on two earlier occasions, the applicant's bail application was rejected - one on technical terms and the other on merits. Referring to the second rejection order, the Court noted that there is no scope for fresh consideration when the matter has been elaborately discussed.

On the question of the informant and the investigator being the same person, the Court relied on Mukesh Singh v. State (2020), where it was held that,

"In a case where the informant himself is the investigator, by that, itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself, the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal."

On the question of a long period of detention of more than 267 days, the Court noted that it would not come to the aid of the applicant since the offence involved is a socio-economic one and also because of the consideration of the huge quantity of contraband as well as currency recovered from the place of occurrence.

In Chandrakeshwar Prasad v. the State of Bihar (2016), it was held that the right to bail cannot be an absolute one, and reasonable restrictions can be placed on them. The duration as an undertrial has to be examined from the point of view of the interest of the society.

The Court also rejected the second submission that the FIR is not admissible as it was registered after the investigation was over, while noting that there was a GD Entry prior to the investigation. 

Case Title: Md. Mofidul Haque v. State of Assam

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