ORDER

Date : 23.04.2024

1) Heard Mr. S. Dutta, learned Senior Counsel assisted by Mr. S. Dutta, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State.

2) This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Sujit Nath, who has been detained behind the bars since 09.09.2023 (for last 7 months 14 days) in connection with Special NDPS Case No. 119/2023 under Sections 20(b)(ii) (C)/25/29 of the NDPS Act, 1985 (corresponding to Bazaricherra P. S. Case No. 182/2023) pending before the Court of learned Special Judge, Karimganj.

3) The gist of accusation in this case is that on 09.09.2023, one Shri Pranab Milli, SI of Police had lodged an FIR before the Officer-In-Charge of Bazaricherra Police Station, inter-alia, alleging that on that day during conducting naka checking duty at naka checking point of Churaibari Watch Post at National Highway No. 8, at about 6.30 AM, one 12 wheeler goods carrier truck bearing Registration No. TR 01 AS 1811, coming from the Tripura Side was signalled to stop and thereafter, it was checked. During checking of the said vehicle, 66 numbers of packets containing suspected ganja were found concealed in secret chambers of the said vehicle. On weighing the recovered ganja, the weight was found to be 400 kg and 200 grams. From the said truck, the driver, Pradip Biswas, the co-driver, Mintu Choudhury and the helper Sujit Nath (present petitioner) were apprehended. It is also alleged that the present petitioner tried to escape from the place of occurrence, however, he was apprehended with the help of local people. During interrogation of apprehended persons, it came to light that the recovered contraband was sent by one Giribhai @ Bibhash and the present petitioner was in contact with the said person over his mobile phone.

4) On receipt of the FIR, Bazaricherra P.S. Case No.182/2023 under Sections 20(b)(ii)(C)/25/29 of the NDPS Act, 1985, was registered.

5) Ultimately, on completion of the investigation, charge-sheet was laid against the accused persons including the present petitioner.

6) Mr. S. Dutta, learned Senior Counsel for the petitioner has submitted that the present petitioner is an innocent person and is in no way connected with the offence alleged in the FIR. It is also submitted by learned Senior Counsel for the petitioner that the present petitioner is known to the owner of the seized vehicle and on 09.09.2023, at about 10.30 AM, he was called by the owner of the seized truck and was informed that the driver of the seized truck has not been taking up his phone call and therefore, requested him to look into the matter. Thereafter, the petitioner went to the place, where the truck was seized, by riding his bike bearing Registration No. TR 05 B4 589. However, when he reached the spot, he was cordoned off by the naka checking party and was apprehended.

7) It is also submitted by learned Senior Counsel for the petitioner that no contraband was seized from the possession of the present petitioner and he does not have any criminal antecedent. It is also submitted by the learned Senior Counsel for the petitioner that the present petitioner is a patient of chronic abdomen ailment (IBS) and bleeding haemorrhoids since last 10 years.

8) Learned Senior Counsel for the petitioner has also submitted that in this case, there has been clear violation of the mandatory provision of Section 42 of the NDPS Act, 1985, as no authorization from the Gazetted Officer was obtained by the Seizing Officer prior to seizure of the contraband.

9) Learned Senior Counsel for the petitioner has also submitted that under Section 42(2) of the NDPS Act, 1985, the Officer receiving information regarding commission of any offence under NDPS Act, 1985 has to forward the same to his immediate Official superior within 72 hours, however, same has not been done in this case, which itself entitles the petitioner to get bail. To