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IN THE HIGH COURT OF GAUHATI
MRIDUL KUMAR KALITA, J.
Nazrul Islam – Appellant
Versus
The State of Assam – Respondent
Bail Application No. 506 of 2024
Decided On : 13-05-2024
Under Section 37 of the NDPS Act, the law sets stringent requirements for the arrest, search, and seizure related to offences under the Act. The primary purpose of this section is to safeguard the rights of individuals by ensuring that any action taken by authorities is justified and supported by sufficient grounds.
Specifically, Section 37 stipulates that a person can be arrested without a warrant only if there are reasonable grounds to believe that they are involved in an offence punishable with a minimum term of imprisonment of ten years or more. Furthermore, the section emphasizes that such arrests should be made only after obtaining prior approval from a competent authority, especially when the investigation involves serious offences under the Act.
The section also mandates that any search or seizure must be conducted in accordance with established procedures, with proper authorization and within the bounds of legality. This includes recording the reasons for arrest and search, ensuring that the rights of the accused are protected throughout the process.
In the context of the case summarized earlier, the court’s finding that the arrest was illegal aligns with the requirements of Section 37, as the arrest lacked prior approval and was made without sufficient grounds or evidence. The absence of a formal charge sheet or incriminating evidence at the time of arrest further underscores the importance of adhering to procedural safeguards outlined in the NDPS Act, particularly those aimed at preventing arbitrary or unlawful detention (!) .
ORDER :
1. Heard Mr. S. Dutta, learned senior counsel, assisted by Mr. P. Kotaki, learned counsel for the petitioner. Also heard Mr. K. Baishya, learned Additional Public Prosecutor for the State of Assam.
2. This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Nazrul Islam, who has been detained behind the bars since 04.02.2024 (for last 3 months 9 days) in connection with Special NDPS Case No. 70/2023 corresponding to the Bajaricherra P.S. Case No. 126/2023 under Section 22(c)/25/29 of the NDPS Act, 1985 pending in the Court of learned Special Judge, Karimganj.
3. The gist of the accusation in this case is that on 13.06.2023, one S.I. Pranab Mili, SI of Police and In-charge of Churaibari Police Watch Post, had lodged an FIR before the Officer-In-Charge of Bajaricherra Police Station, inter- alia, alleging that during daily naka checking duty at Naka check point of Churaibari Watch Post at National Highway No. 8, three trucks bearing Registration Nos.WB 11D 4702, WB 29B 5386 and NL 01A F0300, coming together from Guwahati side towards Tripura were signalled to be stopped and were searched and during search operation 93,920 numbers of bottles of cough syrups containing codeine phosphate in 587 numbers of cartons were recovered from there. The said cough syrups were seized and the drivers of the vehicle bearing Registration No. WB 11D 4702, namely, Bibesh Kumar and the driver of vehicle bearing registration No. WB 29B 5386, namely, Saminur Islam were arrested. The driver of the truck bearing Registration No. NL 01A F0300 could not be apprehended as he fled away from the scene.
4. The present petitioner, who is the owner of one of the seized vehicles, namely vehicle truck bearing Registration No. WB 29B 5386 was also named in the FIR as one of the accused persons.
5. On receipt of the said FIR, Bajaricherra P.S. Case No. 126/2023 was registered and investigation was initiated. Ultimately, on completion of the investigation, charge sheet bearing No. 167/2023 dated 30.11.2023 was laid against the arrested accused persons, namely, Bibesh Kumar and Saminur Islam.
6. The name of the present petitioner has been shown in column No. 11 of the charge sheet as a not charge sheeted accused person.
7. The learned senior counsel for the petitioner has submitted that the petitioner had approached the trial court for seeking the zimma of his truck which was seized in connection with this case which was initially rejected by the Trial Court by its order dated 20.07.2023 passed in Special NDPS Case No. 70/2023. However, later on, the petitioner again filed an application for seeking zimma of the seized truck on 25.01.2024 and the Trial Court by its order dated 25.01.2024 granted interim zimma of the seized vehicle bearing Registration No. WB-29B-5386 to the present petitioner with certain conditions.
8. It is further submitted by learned senior counsel for the petitioner that when on 03.02.2024 the petitioner approached the Investigating Officer of the case to take the zimma of the seized vehicle as per the directions of the Trial Court, he was arrested in connection with the above case. It is also alleged that he was demanded a huge amount of money by the Investigating Officer and on his failure to pay the same he was arrested by the Investigating Officer.
9. The learned senior counsel for the petitioner has submitted that it is only after the arrest of the present petitioner, the Investigating Officer on 05.02.2024 made a prayer to learned Special Judge, Karimganj to record the statement of two witnesses, namely, Rajesh Urang and Sanjit Rabidas under Section 164 of the Code of Criminal Procedure, 1973, on the ground that the petitioner has made extra judicial confession before the said witnesses.
10. Learned senior counsel for the petitioner has submitted that in the instant case after the completion of the investigation, the charge sheet was submitted, bearing No. 167/2023 dated 30.11.2023
The court established that an arrest without evidence and without prior leave for further investigation is illegal, emphasizing strict adherence to procedural requirements.
Bail under NDPS Act requires the accused to demonstrate reasonable belief of innocence and no likelihood of re-offending; these conditions are cumulative and must be satisfied.
The stringent bail conditions under the NDPS Act and the need for substantial probable causes to grant bail.
In cases of prolonged detention pending trial, especially with procedural deficiencies, the personal liberty of the accused must be prioritized, warranting the granting of bail.
Procedural compliance under the NDPS Act is crucial for the admissibility of evidence, and failure to adhere to these provisions can lead to the grant of bail.
The court ruled that unauthorized searches under the NDPS Act invalidate the evidence, warranting bail for the accused due to procedural non-compliance.
The court ruled that searches conducted by unauthorized officers under the NDPS Act are illegal, warranting the grant of bail due to prolonged detention without trial.
Non-compliance with Article 22(1) vitiates arrest, but acknowledgment of grounds by the accused undermines this claim; prolonged custody does not negate statutory bail restrictions under NDPS Act.
Strict adherence to the NDPS Act's provisions regarding search and seizure is essential; failure to comply can lead to the invalidation of evidence and grant of bail.
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