BA/77/2024 of DILU JOY REANG Vs THE UNION OF INDIA on 28 November 2024

1. This bail application has been filed under the provision of Section483 BNSS read with Section 37 of the NDPS Act, 1985 by the petitionerwith a prayer for grant of bail in connection with Criminal NDPS CaseNo. 8 of 2023 pending before the Court of the learned Special Judge(NDPS), Nongpoh, Ri-Bhoi District.

2. The brief facts of the case is that the Customs Officials, on receiptof reliable telephonic information on 23.05.2023 at about 11.00 pm orso, had intercepted a Maruti Alto vehicle bearing Registration No. ML05 Q 6794, the said group of Customs Officials having followed theoccupants of the said vehicle No. ML 05 Q 6794 at about 3:00 am of24.05.2023, the vehicle was asked to stop but on the said order not beingcomplied with and the vehicle was speeding away, the officers chasedthe vehicle and managed to intercept it at Bhoirymbong market. Onchecking the vehicle, 4 persons were found as occupants and on beingquestioned they agreed to lead the officers to the exact place where theyhave hidden the contraband substance.

3. On reaching Liarbang Village, the said persons led the officers to aforested area where 24 packets of compressed blocks wrapped in brownpaper suspected to be ganja were found. On due procedure beingfollowed as far as search and seizure is concerned, the contrabandsubstance was removed from the place it was found to the custody of theCustoms Officials.

4. The competent authority has then arrested the four occupants ofthe vehicle namely; Shri. Dilu Joy Riang, Shri. Sanjib Gohai, Shri. SujitKumar Rai and Shri. Vicky Kumar and investigation was launchedthereafter.

5. The Investigating Officer, on completion of his investigation hasfiled the Final Complaint before the court of the learned Special Judge(NDPS), Nongpoh, finding that the accused persons above named areinvolved in the dealing, storage and transportation of the contrabandsubstance, i.e. cannabis (ganja) weighing about 149.55 kg and thereby,have contravened the provisions of Section 8(c) of the NDPS Act bycommitting an offence punishable under Section 20(b)(ii)(C) read withSection 23 and 29 of the said NDPS Act. The four accused persons arenow undergoing trial before the trial court at Nongpoh. It may bementioned that another person has also been named as one of theaccused in this case, whose name is Sankar Saha said to be themastermind of the whole operation, but who could not be apprehendedtill date.

6. Mr. S. Pandit, learned counsel for the petitioner has submitted thatthe petitioner who is a police constable by profession had come toShillong on 23.05.2023 along with his friend Shri. Bandu Reang for hisfriend’s medical treatment at NEIGRIHMS and for sightseeing and whilein Shillong he met his friend Shri. Sanjib Gohai who is from Tripura.

7. On 24.05.2023, while travelling with Shri. Sanjib Gohai in a Taxion the way to Bhoirymbong, the vehicle was intercepted by the CustomsOfficials and on an allegation that some contraband substance, namely, Ganja was detected at a forested area called Liarbang, Ri-Bhoi District,he along with others were arrested.

8. The learned counsel has submitted that the petitioner is nowhereinvolved with the alleged offence and there is no iota of evidence toprove his involvement in the case. However, in the Final Complaint filedbefore the trial court on the statement of the co-accused recorded underSection 67 of the NDPS Act, the petitioner was said to be involved in thecase and has been implicated as one of the co-accused.

9. The learned counsel has further submitted that even on perusal ofthe final report, it is seen that there is nothing in evidence to link thepetitioner to the transportation and storage of the alleged contrabandsubstance. As to his connection with the main accused, that is, Shri.Sankar Saha, here too, there is no evidence to prove this allegation andno call details report (CDR) was also produced by the prosecution toprove such connection.

10. The learned counsel has reiterated that on the basis of thestatement made by the co-accused under Section 67 NDPS Act, thepetitioner could not have been made to stand trial in the case since suchstatements are not admissible in evidence.

11. Another issue canvassed by the petitioner is that, having been incustody for more than ten months, the progress of the trial being veryslow, there is no likelihood of the same being completed in a fewmonths’ time and as such, on the ground of delay, the petitioner may beenlarged on bail to allow him to prepare his defence as far as the trial isconcerned.

12. In support of his submission, the learned counsel has cited thefollowing cases:

i.Order dated 04.08.2022 in SLP Criminal No. 4173/2022

passed in Shariful Islam @ Sarif v. State of West Bengal;

ii.Order dated 05.08.2022 in Criminal Appeal No. 1169 of2022 passed in Gopal Krishna Patra @ Gopalrusma v.Union of India; and2022 passed in Gopal Krishna Patra @ Gopalrusma v.Union of India; and iii.Order dated 04.05.2023 in SLP Criminal No. 3221/2023passed in Hasanujjaman & Ors. v. The State of WestBengal.passed in Hasanujjaman & Ors. v. The State of WestBengal.

13. The petitioner being a Government servant working in the PoliceDepartment in Tripura with no criminal antecedent, if enlarged on bail,there is no possibility of him absconding or tampering with the witnessesand he will also abide by the conditions that this Court may impose,submits the learned counsel.

14. Dr. N. Mozika, learned DSGI appearing for the respondent hasstrongly opposed the prayer made for grant of bail on the ground that aperusal of the Final Complaint and the statement made by the co-accusedwould reveal that the petitioner is actually involved in the case as hispresence in the vehicle along with the co-accused, particularly Shri.Sanjib Gohai at the area of occurrence in the dead of night cannot beexplained. In fact, it has been stated that he was particularly referred bythe main accused Shri. Sankar Saha to be the recipient of the said consignment of contraband substance. In such a situation and theaccompanying circumstances, it cannot be said that the petitioner hereinis prima facie innocent.

15. On the issue of delay, the learned DSGI has submitted that the trialcourt has diligently proceeded with the trial and has also heard theparties including the petitioner herein before consideration of charges.Vide order dated 21.10.2024 the trial court has considered the matter andhas found that there is a prima facie case against the accused personincluding the petitioner herein and has therefore directed that the chargesunder the relevant provisions of law be framed accordingly. As such,there is no delay in the trial as alleged by the petitioner. It is prayed thatthis petition may be dismissed as devoid of merits.

16. This Court on consideration of the argument advanced by therespective parties, has perused the petition as well as the FinalComplaint, copy of which has been produced herein.

17. The fact that a large quantity of contraband substance, preliminarytested as cannabis (ganja) was seized from the forested area at Liarbangcannot be denied. There is no evidence as to who has kept the said ganjain the place it was found. But its discovery on the leading of the accusedpersons can only lead one to understand that there is a nexus between theaccused persons and the said consignment.

18. As has been submitted, from the Final Complaint which alsocontained record of the statement made by the accused persons and otherrelevant witnesses, the statement made by the petitioner is foundcontradictory since he has stated that he had gone to the place of occurrence with Sanjib Gohai by motorbike when the arresting officialshave noted that he was found to be one of the occupants of the vehiclebearing registration No. ML 05 Q 6794. In his statement he has furthersubmitted that he was in touch with a ganja dealer who gave him acontact number belonging to one Rabong of Guwahati. Even his friend,Sanjib Gohai has stated that the owner of the ganja is Shri. Sankar Sahaand that he was telephonically informed by Sankar Saha that the ganjawas at Liarbang (PO) to be delivered to Dilu Joy Reang, the petitionerherein.

19. Though the statement made under Section 67 NDPS Act as well asthe statement of a co-accused is not admissible in evidence, howeverwhen it comes to consideration of bail, such statement can be taken noteof, if not wholly relied upon.

20. Since the case involved seizure of commercial quantity ofcontraband substance (ganja), therefore, when the question of bail toaccused persons involved in such case comes for consideration beforethe competent court of jurisdiction, the provision of Section 37 of NDPSAct, 1985 cannot be ignored.

21. The said provision reads as follows:- “[37. Offences to be cognizable and non-bailable.—(1)Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall becognizable; (b) no person accused of an offence punishable for[offences under section 19 or section 24 or section 27A

and also for offences involving commercial quantity] shallbe released on bail or on his own bond unless— be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given anopportunity to oppose the application for such release,andopportunity to oppose the application for such release,and

(ii) where the Public Prosecutor opposes theapplication, the court is satisfied that there arereasonable grounds for believing that he is not guiltyof such offence and that he is not likely to commit anyoffence while on bail.application, the court is satisfied that there arereasonable grounds for believing that he is not guiltyof such offence and that he is not likely to commit anyoffence while on bail.

(2) The limitations on granting of bail specified in clause (b) ofsub-section (1) are in addition to the limitations under the Code ofCriminal Procedure, 1973 (2 of 1974) or any other law for thetime being in force, on granting of bail.]”

22. What would be material here is to look at the provision of Section37(1)(b)(ii), which provides that on the public prosecutor being heard inthe matter, the court must be satisfied that there are reasonable groundsto believe that the accused person is not guilty of the offence alleged andsecondly, that he is not likely to commit any offence while on bail.

23. For this Court to believe that the accused persons in question arenot guilty of the offence alleged, there must be reasonable grounds forsuch assumption. What is ‘reasonable ground’ has been discussed andexplained in a catena of judgment by the Hon’ble Supreme Court. In thisregard, this Court is drawn to the explanation of the expression given bythe Hon’ble Supreme Court in Union of India v. Shiv Shankar Kesari,(2007) 7 SCC 798. The relevant paragraph for this limited purpose beingpara 7, 8, 9 & 10 are reproduced herein below:- “7. The expression used in Section 37(1)(b)(ii) is "reasonablegrounds". The expression means something more than prima faciegrounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonablebelief contemplated in turn points to existence of such facts andcircumstances as are sufficient in themselves to justify recordingof satisfaction that the accused is not guilty of the offence charged.

8. The word "reasonable" has in law the prima facie meaning ofreasonable in regard to those circumstances of which the actor,called on to act reasonably, knows or ought to know. It is difficultto give an exact definition of the word “reasonable”.

“7. … In Stroud's Judicial Dictionary, 4th Edn., page 2258states that it would be unreasonable to expect an exactdefinition of the word ‘reasonable'. Reason varies in itsconclusions according to the idiosyncrasy of the individual, andthe times and circumstances in which he thinks. The reasoningwhich built up the old scholastic logic sounds now like thejingling of a child's toy.

(See: Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar[(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat WaterSupply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd.[(1989) 1 SCC 532]

9. “9. …It is often said ‘an attempt to give a specific meaning tothe word “reasonable” is trying to count what is not number andmeasure what is not space’. The author of Words and Phrases(Permanent Edn.) has quoted from Nice & Schreiber, In re [123 F987 at p. 988] to give a plausible meaning for the said word. Hesays ‘the expression “reasonable” is a relative term, and the facts ofthe particular controversy must be considered before thequestion as to what constitutes reasonable can be determined’.

It is not meant to be expedient or convenient but certainlysomething more than that.”

10. The word “reasonable” signifies "in accordance with reason".In the ultimate analysis it is a question of fact, whether a particularact is reasonable or not depends on the circumstances in a givensituation. (See Municipal Corpn. of Greater Mumbai v. KamlaMills Ltd.) [(2003) 6 SCC 315]”

24. In the considered view of this Court, there are no reasonablegrounds to believe that the petitioner is not guilty of the offence allegedand since this bail application has been preferred after the charge sheethas been filed, there is no change in circumstances to allow the prayer ofthe petitioner.

25. As to the contention on the issue of delay, this Court is inagreement with the submission of the learned DSGI that considering thepace of the trial before the trial court, no delay of the proceedings can beattributed to the trial court. The authorities relied upon by the petitionerin this regard will not be applicable.

26. Under the facts and circumstances of this case, this Court findsthat no case has been made out for grant of bail to the petitioner at thisstage. Petition is accordingly dismissed.

27. Petition disposed of. No costs.

Judge