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 JI Borbhuiya, learned counsel for the petitioner, namely, Nimai Singh, who has filed this application under Section 439 CrPC seeking regular bail in connection with NDPS Case No. 50/2021 arising out of Dillai PS Case No. 27/2021 registered under Sections 20 (b) (ii)(c)/29 of NDPS Act, 1985. Also heard Ms. SH Bora, learned Additional Public Prosecutor, Assam.

2. The petitioner was arrested on 28.06.2021.

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

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

i. The petitioner was not directly implicated in the FIR and his name had come up only on the basis of a statements made by co-accused Tonanbam Tasken Singh.

ii. As per the statements of the co-accused, only delivery of the contraband was supposed to be made to the petitioner which was actually not done. It is accordingly argued that the petitioner cannot be arrested and detained on apprehension.

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 Tonanbam Tasken Singh.

5. Shri Borbhuiya, the learned counsel for the petitioner submits that the petitioner has been in custody since 28.06.2021 and therefore, there is no requirement of any further custodial detention.

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

i. Shashikant Prabhu Vs. State of Maharashtra, BA No. 198/2019

ii. Rajveer Singh Vs. Union of India, BA No. 6782/2019

iii. Surinder Kumar Khanna vs. Intelligence Officer, Directorate of Revenue Intelligence, (2018) 8 SCC 271

iv. Abdul Mohammed Shaikh Vs. Union of India, BA No. 102/2020

v. Sheesh Singh @ Mor Vs. State of Punjab, Criminal Appeal No. 822/2020

vi. Budhua Baruah Vs. State of Assam, 2010 (6) GLR 464

vii. Vikrant Singh Vs. State of Punjab, CRM-M-39657 of 2020 (O&M)

7. In the case of Shashikant Prabhu (Supra), the Hon’ble Bombay High Court had laid down that statements of co-accused under Section 67 of the NDPS Act is not admissible in evidence. The said proposition is also laid down by the Hon’ble Supreme Court in the case of Surinder Kumar Khanna (Supra) and Seesh Singh (Supra).

8. In the case of Rajveer Singh (Supra), the Hon’ble Allahabad High Court considered the aspect of exclusive possession of the contraband and arresting on the spot. Non recovery of the contraband from the accused was also a consideration of the Hon’ble Bombay High Court in the case of Abdul Mohammad Shaikh (Supra).

9. In the case of Budhua Baruah (Supra), this Court has held that mere filing of charge sheet should not be a ground for rejecting the prayer of bail.

10. In the case of Vikrant Singh (Supra), the Hon’ble High Court of Punjab and Haryana has held that mere implication by co-accused may not be enough wherein no recovery was made from the accused, who was also not named in the FIR.

11. On the other hand, Ms. SH Bora, learned Additional Public Prosecutor, Assam 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 that degree as in a civil case.

12. The learned APP, Assam submits that that the trial is at an early stage wherein only 2 out of 13 nos. of witnesses have been examined and releasing the petitioner on bail at this stage may jeopardize the proceeding. The further relevant consideration is that the quantity involved is a huge one consisting 20.67 KGs of Ganja falling within commercial quantity for which a strict approach needs to be adopted while considering the bail of an accused. She further submits that offence under this Act is organized one wherein a number of persons involved and seizure/recovery from each of them may not be there.

13.