Gauhati High Court
Musst. Rina Begum @ Rina Begam vs The State Of Assam on 14 July, 2021
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GAHC010091682021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1231/2021
MUSST. RINA BEGUM @ RINA BEGAM
W/O. LT. RAJU ALI
R/O. F. A ROAD
KUMARPARA RAILWAY GATE NO.06
HOUSE NO.94 NEAR 6 NO. MOSJID
P.S. BHARALUMUKH
DIST. KAMRUP (M)
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM.
------------
Advocate for : MS. S SAIKIA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
Date : 14-07-2021
The Court proceedings have been conducted through Video-
Conference due to COVID-19 pandemic.
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This is an application, filed under Section 439 of the Cr.PC. seeking bail of
the accused-petitioner, namely, Musstt. Rina Begum @ Rina Begam, in
connection with Fatasil Ambari P.S. Case No. 292/2020 registered under
Sections 21(b)/29 of the NDPS Act
Heard Mr. M Garodia, learned counsel appearing on behalf of the learned
engaged counsel for the petitioner. Also heard Mr. Bidyut Sarma, learned
Additional Public Prosecutor, appearing for the State respondent.
The fact of the case is that on 07.08.2020, on receipt of reliable
information, the informant SI of Police accompanied with few other police
personnel apprehended one women, namely, Mina Kumari @ Anju @ Anita
Kumari and recovered three packets of suspected heroin weighing about 33.50
grams and also eight packets of suspected heroin weighing 91.80 grams. The
Police officer also seized an amount of Rs. 50,000/- from the said Mina Kumari
@ Anju @ Anita Kumari.
As per the FIR, during the course of investigation, the said Mina Kumari @
Anju @ Anita Kumari stated before the Investigating Police Officer that she was
supplied with the aforesaid suspected heroin by the present petitioner.
Therefore, the present petitioner, who was already in custody in connection with
Bharalumukh P.S. Case No. 435/2021, was shown arrested in this case on the
prayer of the Investigating Police Officer made to that effect on 04.06.2021.
I have examined the case diary.
The seizure witnesses and the land lady of the accused Mina Kumari @ Anju
@ Anita Kumari aforesaid have stated that the allegedly seized contraband were
recovered from the possession of the co-accused Mina Kumari @ Anju @ Anita
Kumari. The co-accused Mina Kumari @ Anju @ Anita Kumari also mentioned
the name of the present petitioner in her statements recorded by the
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Investigating Officer, as the person who had supplied her the allegedly seized
contraband. It also appears from the case diary that the present petitioner also
confessed that she used to supply contraband to the aforesaid co-accused Mina
Kumari @ Anju @ Anita Kumari. There is no other material against the present
petitioner in the case diary. There is no independent witness collected by the
Investigating Police Officer against the present petitioner. The allegedly seized
contraband was also not seized from the possession of the present petitioner.
On examination of the entire materials in the case diary, it appears that the
accusation against the present petitioner is based on her own statement as well
as the statement of the co-accused. It has also come out from the materials in
the case diary as well as the annexures furnished with the petition that the
present petitioner has a little girl child with her in jail custody.
It has been submitted by the learned counsel for the present petitioner that
the statement of accused implicating the co-accused cannot be taken as legal
evidence against the present petitioner and her detention on such material is
not justified.
In Tofan Singh Vs. State of Tamil Nadu in Criminal Appeal No.152 of 2013
dated 29th October, 2020, the Hon'ble Apex Court has held that the confessional
statement made before the Investigating Police Officer under the NDPS Act has
undergone a change and such statement is not to be treated as a confessional
statement and the same is a statement like that of a statement made under
Section 161 of the Cr.PC. The relevant portion of the said judgment is quoted
below:-
"155. We answer the reference by stating :
(i) That the officers who are invested with powers under section 53 of
the NDPS Act are "police officers" within the meaning of section 25 of the
Evidence Act, as a result of which any confessional statement made to them
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would be barred under the provisions of section 25 of the Evidence Act, and
cannot be taken into account in order to convict an accused under the NDPS
Act.
(ii) That a statement recorded under section 67 of the NDPS Act cannot
be used as a confessional statement in the trial of an offence under the
NDPS Act."
On the other hand, it has been submitted by the learned counsel for the
petitioner that the present petitioner has been in custody for 40 (forty) days, as
on date, w.e.f. the date of showing her arrested on 04.06.2021.
Considering the above, the learned counsel for the petitioner has sought for
grant of bail to the present petitioner.
The learned Additional Public Prosecutor has objected to the prayer for bail
on the ground that the co-accused has implicated the present petitioner.
In view of the above discussions, even if the statement of the co-accused
and the present petitioner remain as it is, yet there is no scope for conviction of
the present petitioner on such statement, in view of the law laid down in Tofan
Singh (supra).
Therefore, in the considered view of this Court, taking into account the
nature of the offence, the period of detention of the present petitioner in
custody and the welfare of the child/infant as well as the law referred to above,
the present petitioner is found to be entitled to the grant of bail and hence
granted.
Accordingly, the present petitioner, named above, shall be released on bail
in connection with the abovementioned case on furnishing bail bond of Rs.
25,000/- with a suitable surety of the like amount, to the satisfaction of learned
Special Judge under the NDPS Act, Kamrup (Metro), Guwahati.
The direction for bail is further subject to the conditions that the present
petitioner:
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(a) shall not leave the territorial jurisdiction of
learned Special Judge under the NDPS Act, Kamrup
(Metro), Guwahati without prior written permission
from him;
(b) shall not hamper with the investigation, or
tamper with the evidence of the case; and
(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.
The petition stands disposed of accordingly.
Return the case diary.
JUDGE
Comparing Assistant
