Mubarak Hussain @ Babul vs State Of Assam

This is an application made under Section 439 Cr.P.C., seeking bail by the accused-petitioner, namely, Mubarak Hussain @ Babul, in connection with

Udalguri P.S. Case No.21/2021, registered under Sections 21(c) of the NDPS Act.

Heard Mr. M. Rahman, learned counsel for the petitioner. Also heard Mr.D. Das, learned Additional Public Prosecutor, Assam, appearing for the

State Respondent.

Mr. Rahman, learned counsel for the petitioner has submitted that although the case has been charge-sheeted under Section 21(c) of the NDPS Act,

yet considering the amount of alleged contraband recovered from the possession of the petitioner, the case ought to have been registered and charge-

sheeted under Section 21(b) of the NDPS Act. Learned counsel for the petitioner has further submitted that in this case charge sheet has been laid on

14.05.2021. According to him, the statutory period for completion of investigation in the case of instant nature is 60 days and, therefore, the petitioner

ought to have been granted bail by the learned Court below. He has also referred to the order dated 2.6.2021 passed by the learned jurisdictional

Special Judge rejecting the prayer for bail although it was held in the said order that the contraband seized in this case is lesser than commercial

quantity but greater than small quantity and the accused has committed an offence under Section 21(b) of the NDPS Act.

The rejection was made on the ground that the offence is serious in nature.

Mr. Das, learned Additional Public Prosecutor has submitted that the matter be referred back to the learned Court below for consideration of the bail

application on the ground that in the absence of records before us, it cannot be said whether the petitioner had exercised his right to seek bail on expiry

of 60 days in the instant case and also to find out whether this is the first offence of the accused petitioner or he is a habitual offender. He has also

submitted that whether the indefeasible right of the petitioner stands extinguished if he had not prayed for bail before laying of the charge-sheet and

after expiry of 60 days period.

On perusal of the materials available before this Court now including the seizure list, this Court has found that 40.61 grams of suspected heroin was

recovered from the possession of the accused petitioner and the sample sent for forensic examination is tested positive for such contraband. The

contraband seized admittedly and evidently falls within the ambit of lesser than commercial quantity and greater than small quantity. In a case of such

nature, the statutory period for completion of investigation is 60 days. Laying of charge-sheet on 14.05.2021 speaks that charge-sheet was not laid

within the statutory period prescribed. The charge-sheet does not reveal that the petitioner is a habitual offender or he has committed any other

offence under the NDPS Act prior to the case at hand.

So far indefeasible right is concerned, in the considered view of this Court, the learned Trial Court did not consider such aspect while passing the

aforesaid order rejecting the prayer for bail and there is no instance before this Court to indicate that such right was not exercised.

Considering all the above facts, in the considered view of this Court, the petitioner is entitled to grant of bail considering the fact that the case falls

within the ambit of Section 21(b) of the NDPS Act and the accused petitioner has been in custody with effect from 24.01.2021. Hence, the prayer for

bail is allowed.

Accordingly, the accused-petitioner, named above, shall be released on bail in connection with the case aforementioned on furnishing bail bond of

Rs.25,000/- with two suitable sureties of the like amount, to the satisfaction of learned jurisdictional Special Judge under the NDPS Act.

The direction for bail is further subject to the conditions that the accused- petitioner:

(a) shall not leave the territorial jurisdiction of learned jurisdictional Special Judge under the NDPS Act, without prior written permission from him;

(b) shall not hamper with the investigation, or tamper with the evidence of the case;

(c) shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him

from disclosing such facts to the Court or to any police officer.

In terms of the above, this bail application stands disposed of.