Point of Law : Court is of the view that if an arrest and detention is not permissible on the basis of a statement of a co-accused, no investigation would be possible leading to a situation of anarchy and lawlessness.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. Heard Shri A. Saikia, learned counsel for the petitioner, namely, Aminul Islam, who has filed this application under Section 439 CrPC seeking regular bail in connection with NDPS Case No. 60/2019 arising out of NCB Crime No. 03/2019 registered under Section 8(c) and punishable under Sections 21(c)/22(c)/29 of NDPS Act, 1985. Also heard Shri SC Keyal, learned Standing Counsel, NCB.

2. The petitioner was arrested on 06.10.2020.

3. In terms of the order passed earlier, the scanned copy of the case records has been transmitted to this Court.

4. Shri Saikia, the learned counsel for the petitioner makes the following submissions:

i. The petitioner is not an FIR named accused and the FIR is primarily against Mograb Ali, Jiaur Rahman and Abdul Motleb Mir.

ii. The name of the petitioner was inserted as accused no. 6 only in the time of final complaint by the NCB.

iii. No contraband was seized from the petitioner or from his conscious possession.

iv. The petitioner has been arrested only on the basis of the statements made under Section 67 of the NDPS Act by co-accused Mograb Ali, Nurezzaman Islam and Gopal Sarkar.

5. Shri Saikia, the learned counsel for the petitioner submits that supplementary charge sheet was filed in this case on 18.03.2021. He submits that statements made under Section 67 of the NDPS Act cannot be treated as an evidence and therefore cannot be the basis of the arrest and detention. He further submits that co-accused Nurezzaman was enlarged on bail and therefore, on the ground of parity, the petitioner should also be released on bail.

6. Shri Saikia, the learned counsel for the petitioner submits that the petitioner has been in custody for about one year and six months and therefore, there is no requirement of any further custodial detention.

7. In support his submissions, the learned counsel has placed reliance upon the following case laws:

i. Ashik Ahmed Mondal @ Larju Vs. State of Assam, BA No. 1636/2020

ii. Khalil Uddin Vs. Union of India (NCB), BA No. 2356/2021

iii. Mazibur Rahman Mandal Vs. State of Assam, BA No. 862/2021

8. In the case of Ashik Ahmed Mondal (Supra), this Court has held that if on the basis of the materials on record the Court is satisfied that on all probabilities, the accused may not ultimately be convicted, the order of granting bail may be considered. This Court had relied upon the judgment of the Hon’ble Supreme Court in the case of Ranjitsing Brahamjeetsing Vs. State of Maharashtra & Anr. (2005) AIR SCW 2215.

9. In the case of Khalil Uddin (Supra), this Court has held that no contraband article was recovered from the possession of the petitioner and he was implicated by a co-accused. However, bail was granted on the basis of the judgments in Bharat Choudhury Vs. Union of India in Petition for Special Leave (Crl.) Appeal No. 5703/2021 and Tofan Singh Vs. State of Tamil Nadu in Criminal Appeal No. 152 of 2013.

10. In the case of Majibur Rahman Mandal (Supra), this Court came to a finding that if the pleaded fact that the person who had fled away from the place of occurrence was a passenger in the Autorikshaw driven by the petitioner and from whom the contraband was seized, can be established in the trial, he would unlikely to be convicted.

11. On the other hand, Shri SC Keyal, the learned Standing Counsel, NCB submits that the petitioner is under a duty to make out a case for grant of bail based on the facts and circumstances and the concept of precedent in criminal cases except for a point of law may not be to their degree as in civil case.

12. The learned Standing Counsel submits that the conduct of the petitioner itself raises serious doubts on his plea of innocence inasmuch as the petitioner had failed to appear to give his statement to the notices served under Section 67 of the NDPS Act and such statements were required in view of the statements of co-accused th