Point of Law: that right to bail cannot be an absolute one and reasonable restrictions can be placed on them and the duration as an under-trial has to be examined from the point of view of the interest of the society.

JUDGMENT :

Heard Shri A.K. Bhattacharyya, learned Senior Counsel assisted by Shri D.K. Bhattacharyya, learned counsel for the applicant, namely, Md. Mofidul Haque, who has filed this bail application under Section 439 of the Cr.P.C. praying for bail in connection with NDPS Case No. 17/2021 arising out of Dhing PS Case No.505(N)/2020 under Sections 17(b)/18(c)/20(b) (ii) (C)/21(C)/25/27A/29(1) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The State is represented by Shri B. Sharma, learned Addl. Public Prosecutor, Assam.

2. Pursuant to the orders of this Court, the scanned copies of the LCR have been received.

3. Shri Bhattacharyya, learned Senior Counsel for the applicant fairly submits at the outset that on two earlier occasions, the prayer for bail of the petitioner have been rejected. The learned Senior Counsel, however, submits that there were certain points which were not brought to the notice of this Court and those points are relevant for coming to a just decision. It is submitted that as on 01.09.2021, the applicant has completed 267 days in custody and he was arrested merely on suspicion as he was physically present in the house of the prime accused-Habil Ali during the search and seizure.

4. It is submitted that the investigation has been completed in the meantime and the charge-sheet has been filed. By referring to the copies which have been furnished to the accused, it has been submitted that the applicant is a chance visitor to the house of Md. Habil Ali, who is his maternal uncle. It is submitted that other than his mere presence, nothing incriminating has been assigned to him. It is further submitted that the case record would reveal that nothing has been recovered from the possession of the applicant and even during the investigation, the police remand was sought only for Habil Ali. 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 examination to connect the applicant with the offence.

5. The learned Senior Counsel has submitted that there are certain legal aspects which are also required to be considered. It is submitted that in the instant case, the informant is himself the Investigating Officer and there is a legal bar in this regard. It is further submitted that the FIR itself is not admissible as it was registered after the investigation was over. The learned Senior Counsel, however, fairly admits that a GD Entry was there which led to the investigation. The applicant can at best be termed as a seizure witness and the main accused is the maternal uncle Shri Habil Ali.

6. While drawing the attention of this Court to paragraph 9 of the application, the learned Senior Counsel has tried to explain the reason of presence of the applicant in the place of occurrence as the applicant is the nephew of the principal accused Habil Ali. It is further submitted that the case record would also reveal that though there is indication of receipt of secret information regarding the involvement of the applicant, no investigation was done in that regard. By drawing the attention of this Court to the GE Entry, it is submitted that there is no mention about the name of the applicant. The inaction of the investigating authorities to make an attempt to intercept of the two accomplices has also been questioned.

7. By referring to the provisions of Section 42 of the NDPS Act, more particularly second proviso thereto, it is submitted that the reasons to believe that a search warrant and authorization cannot be obtained, have to be recorded in writing. This part of the law has been submitted to be deviated from.

8. It has also been submitted that the statements of the independent witnesses do not implicate the applicant. The Senior Counsel accordingly submits that there are no materials to justify the action of having the applicant in custod