ORDER

Date : 16-12-2021 Heard Mr. P.K. Saharia, learned Counsel for the petitioner and Mr. B.B.

Gogoi, learned Additional Public Prosecutor for the respondent State of Assam.

2. By this application under Section 438, Code of Criminal Procedure, 1973 [‘CrPC’ and/or ‘the Code’, for short], the petitioner viz. Khagen Kalita has approached this Court seeking the benefit of pre-arrest bail, apprehending his arrest, in connection with NDPS Case no. 135/2021, arising out of STF Police Station Case no. 04/2021 registered for offences punishable under Sections 20[C], Narcotic Drugs and Psychotropic Substances Act, 1985, which is presently pending in the Court of learned Special Judge, Kamrup at Guwahati.

3. Mr. Saharia, learned counsel for the petitioner has submitted that the petitioner was not named in the First Information Report. It was one Nirmal Das who has been named in the First Information Report as the accused. The contraband was seized when search was conducted in the house of one Rumi Patwary, a sister of the accused Nirmal Das.

4. Mr. Gogoi, learned Additional Public Prosecutor has submitted that while submitting the charge sheet, the Investigating Officer [I.O.] of the case had reported that the petitioner was found evading arrest and he was shown as an absconder. Subsequently, the trial court of learned Special Judge, Kamrup, Guwahati has issued non-bailable warrant of arrest [NBWA] against the petitioner. It is further submitted that evidently, the quantity of contraband involved in the case is commercial quantity and, as such, the restrictions under Section 37 of the NDPS Act will be attracted for consideration of the prayer for bail in respect of the petitioner.

5. The scanned copy of the case diary and the case record of NDPS Case no. 135/2021, as called for by the previous order dated 24.11.2021, have been received.

6. The First Information Report [FIR] was lodged by a Sub-Inspector of Police, STF Police Station at Guwahati, on 16.06.2021. As per the said FIR, an information was received at about 07-00 a.m. on 16.06.2021 to the effect that a huge quantity of Cannabis [Ganja] was kept concealed for the purpose of illegal trading at Village - Sesa Kumarpara under Hajo Police Station. Accordingly, a team of STF police personnel was formed and proceeded to Sesa Kumarpara. After reaching the said village, a search operation was launched with the assistance of the police personnel from Hajo Police Station. At about 01-30 p.m., the police team conducted the search in the house of one Smti. Rumi Patwary and during the said search, 10 [ten] bags containing suspected Cannabis [Ganja] were found concealed in an outhouse located in the premises of Smti. Rumi Patwary. On weighment of the suspected Cannabis [Ganja], it was found to be 47 Kgs. The search operation was conducted in presence of independent witnesses. The statements of the independent witnesses, available in the case diary have corroborated the said fact of search, recovery and seizure.

7. After the search, recovery and seizure, the accused person named, Nirmal Das was arrested and after arrest, he was produced before the learned Court of Judicial Magistrate, First Class on 17.06.2021. The suspected contraband substance and the seizure list were placed before the Court of learned Chief Judicial Magistrate, Kamrup, Guwahati on 17.06.2021 by preparing an Inventory of Seizure and a prayer was made to allow the I.O. to draw samples from the seized suspected Cannabis [Ganja] for forwarding the same for chemical examination to the Forensic Science Laboratory [FSL], Assam, Guwahati. Such permission was granted by the learned Judicial Magistrate, First Class, Kamrup, Guwahati on 18.06.2021 and accordingly, samples were drawn and forwarded to the FSL, Assam for chemical examination. As per the FSL report dated 03.07.2021, the examination gave positive test for Cannabis [Ganja].

8. The statement of the arrested accused person, Nirmal Das and other witnesses have been recorded by the I