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2024 Supreme(Online)(GAU) 4572
HIGH COURT OF GAUHATI
MRS. JUSTICE MITALI THAKURIA, J
HASHEM ALI PARAMANIK @ HASHEM ALI PARAMANIK – Appellant
Versus
THE STATE OF ASSAM – Respondent
Bail Appln. / 1835 / 2024
MR. A M BORA, PP ASSAM appearing for THE STATE OF ASSAM
The court ruled that ongoing investigations and the lack of seized evidence do not warrant bail, despite the accused's claim of innocence and reliance on co-accused statements.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 439 - NDPS Act - Sections 21(b), 29, 22(c) - Bail application for accused arrested in connection with drug offenses - The accused claims innocence, stating no material evidence against him and that he was arrested based solely on a co-accused's statement, which is inadmissible. The prosecution argues sufficient incriminating evidence exists against the accused. (Paras 2-8)
(B) Bail - Considerations for grant - The court emphasizes that the absence of seized contraband and the nature of co-accused statements impact the bail decision, but ongoing investigations may yield further evidence. (Paras 8-9)
Facts of the case:
The accused was arrested on 22.04.2024 and has been in custody since 23.04.2024, with no contraband found in his possession. The arrest was based on statements from co-accused individuals.
Findings of Court:
The court finds that the investigation is ongoing, and it is not appropriate to grant bail at this stage.
Issues: The main issues include the admissibility of co-accused statements and the sufficiency of evidence for bail.
Ratio Decidendi: The court ruled that while co-accused statements may not be admissible under Section 439, the ongoing investigation and lack of seized material do not favor bail at this time.
Result: Bail application rejected.
ORDER
Date : 23.07.2024 Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. V. A. Choudhury, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent.
2. This is an application under Section 439 of the Code of Criminal Procedure, 1973 for grant of bail to the accused/ petitioner, who has been arrested in connection with Gauripur P.S. Case No. 111/2024, under Sections 21(b)/29/22(c) of NDPS Act , corresponding to GR No. 386/2024.
3. Case Diary has been received. Perused the same. Heard both sides.
4. It is submitted by Mr. Bora, learned Senior Counsel for the petitioner, that the present accused/petitioner is innocent and he is no way connected with the alleged offence. He was arrested in connection with this case on 22.04.2024 and since 23.04.2024, he has been in judicial custody. Mr. Bora further submitted that from the forwarding report and from the rejection order of the learned Court below also, it reveals that the present accused/ petitioner was arrested only on the basis of the statement made by the co-accused, which is not admissible as per the view expressed by the Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu [ (2021) 2 SCC 1 ]. More so, he submitted that there is no material against the present accused/ petitioner showing his involvement in the alleged offence and hence, in such a situation, the present accused/petitioner is entitled for bail. He is already behind the bar for more than 90 days and he got arrested only on the basis of the statement made by the co- accused. Moreover, nothing has been seized from the possession of the accused/petitoner and he was picked up by the police from the Court premises only. He had some dispute with the Office-In-Charge of the concerned police station and with some mala fide intention, he has been implicated in the present case and accordingly, Mr. Bora, learned Senior Counsel for the petitioner, has submitted that the present accused/ petitioner may be allowed to go on bail. However, he will co-operate with the I.O. in the further investigation of this case.
5. In this context, Mr. Borthakur, learned Additional Public Prosecutor, has submitted that there are sufficient incriminating materials against the present accused/petitioner in the Case Diary and from the available materials as well as the statements of the witnesses, it is seen that he is the main supplier of those contrabands, i.e. codeine phosphate cough syrup as well as the heroine. He is doing the business of supplying those contrabands since long and hence, his further custodial detention will be necessary for the interest of further investigation.
6. Per contra, Mr. Bora, learned Senior Counsel for the petitioner, raised objection and submitted that on what basis it is alleged that the present accused/petitioner is the main kingpin of this case or the main supplier of the alleged contraband when nothing has been seized from the possession of the accused/petitioner. He further submitted that the rights of the present petitioner cannot be curtailed only on presumption that tomorrow or in near future some material may be collected by the I.O. during investigation. Mr. Bora further submitted that it is clearly distinguished in the judgment of the Apex Court that the statement of the co-accused may be considered while dealing with a petition under Section 438 Cr.P.C . but not in a case under Section 439 Cr.P.C . In that regard, he relied on a decision of Apex Court passed in the case of The State of Haryana Vs. Samarth Kumar [ 2022 LiveLaw (SC) 622 ].
7. On the other hand, Mr. Borthakur, learned Additional Public Prosecutor, further submitted that the case is still under investigation and there are probability of collecting materials against the present accused/petitioner, though the I.O. has already collected sufficient materials and some of the independent witnesses also incriminate the present accused/ petitioner in the present
