Gauhati High Court
Bishal Kusum Choudhury vs The State Of Assam on 1 November, 2021
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GAHC010179172021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2994/2021
BISHAL KUSUM CHOUDHURY
S/O BIKASH KUSUM CHOUDHURY
R/O FLAT NO. 6C, RAJDHANI HSG CO-OPERATIVE SOCIETY, SREENAGAR,
UNDER DISPUR P.S., GUWAHATI-781005 IN THE DIST. OF KAMRUP (M),
ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. A M BORA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
Date : 01-11-2021
Heard Mr. AM Bora, learned senior counsel for the petitioner. Also
heard Mr. M Phukan, learned Public Prosecutor, appearing for the State
respondent, who has raised objection to the grant of bail of the petitioner.
2. This is an application, filed under Section 439 of the Cr.PC seeking bail of
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the accused-petitioner, namely, Bishal Kusum Choudhury, in connection with
Latashil P.S. Case No. 282/2021 registered under Sections 188 of Indian
Penal Code, read with Section 20(a)/21(b)/25 of the Narcotic Drugs &
Psychotropic Substances Act.
3. Perused the scanned copy of the case diary as produced before this Court
in view of the order, dated 28.10.2021.
4. The fact of the case is that on receipt of secret information regarding
selling of narcotics and psychotropic substances by Sri Vikas Jain and his other
accomplishes, his house situated at Reveria Apartment, Kharghuli were searched
after observing necessary legal formalities. While search was conducted in the
house, the following 18 (eighteen) persons were found there:-
1. Sri Vikash Jain
2. Nassif Ahmed
3. Sri Sumit Kumar Beria
4. Sri Chayan Saikia
5. Sri Amit Pegu
6. Sri Amit Baruah
7. Sri Ashok Barman
8. Sri Hirendra Sinha
9. Sri Ridib Baruah
10. Sri Siddartha Barthakur
11. Smti. Bonamallika Choudhury
12. Sri Rakesh Bargohain
13. Smti. Debjani Hazarika
14. Smti. Jubee Baruah
15. Smti. Nayanika Baruah
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16. Smti. Debarshi Beria
17. Smti. Nimisha Bhuyan, and
18. Sri Pankaj Kakoty
The aforesaid persons were found consuming narcotics substances as well
as alcohol. They were also found to have committed breach of COVID-19
protocols, as notified by the State. On a thorough search of the premises/flat of
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and seized from the possession of one Ashok Barman which was kept concealed
by him in a small black coloured pouched typed bag and also during such
search, suspected cannabis amounting to 30 grams with a cannabis crusher
were also recovered from the possession of one Chayan Saikia. Both the
contraband were seized by two different seized lists.
5. The 18 (eighteen) persons, named above, were apprehended and were
arrested on 14.08.2021 from the place of occurrence and they were suspected
to be in criminal connivance as well as the conscious possession of the
contraband so seized.
6. During the continuation of the investigation of the above case, the
petitioner was arrested and forwarded to the court vide the forwarding letter
dated 28.08.2021 at page 37 of the petition (Annexure-III) under Sections 188
of the IPC, read with Sections 20(a)/21(b)/25/29 of the NDPS Act. It appears
from the grounds of arrest of the petitioner that the co-accused has revealed
that suspected cocaine/drugs was procured from the petitioner. The petitioner is
stated to be the kingpin of drugs suppliers in the Northeast. It has also been
taken as a ground for arrest that while checking the Bank statements of the
petitioner and the co-accused Ashok Barman, the same corroborates that
several transactions were made between them for procurement of cocaine.
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There has also been exchange of messages in mobile phone between the
petitioner and co-accused. The petitioner was granted nine days' police custody
by the learned court below vide order, dated 28.08.2021.
7. Mr. Bora, learned senior counsel for the petitioner, has submitted that the
entire accusations made against the petitioner is based on the statement of co-
accused and there is no independent evidence collected against him to rope him
in the offences alleged. He has further submitted that all the co-accused
persons, 18 in nos., have already been granted bail by this Court by various
orders.
8. It has further been submitted by Mr. Bora, learned senior counsel for the
petitioner, that nothing was recovered from the possession of the petitioner and
even no nexus of the present petitioner with the supply of narcotic
drugs/psychotropic substances could be detected by the investigating agency.
He has further submitted that that during the police custody, the investigating
Police had fired the petitioner on his leg from point blank range for which
complaint has already been lodged in the appropriate judicial forum.
9. On the other hand, resisting the prayer for bail of the petitioner, the
learned Public Prosecutor has submitted that the petitioner is the kingpin in the
drug racket, involved in this case and he used to supply the contraband drugs,
thus, adversely effecting the entire society. He has also submitted that the
petitioner had attempted to escape from the custody of the Police for which he
had to be shot at to prevent him from escaping. However, during the course of
hearing, he has not disputed that there is no independent witnesses collected
even in the stage of laying of the charge-sheet against the petitioner.
10. The accused-petitioner appears to have been arrested and thereafter
charge-sheeted basically on the statement of co-accused. On perusal of the
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charge-sheet, it is found that he has been charge-sheeted along with 19 other
co-accused under Sections under Sections 120(B)/269/270 of the IPC read with
Section 20(b)(II)(A)/21(b)/25/29/35 of the NDPS Act and read with Sections 4/5
of the Assam Bhang & Ganja Prohibition Act, 1958.
[11] Mr. Bora, learned senior counsel for the petitioner has referred the
decision of the Hon'ble Supreme Court in Tofan Singh -vs- State of Tamil
Nadu in Criminal Appeal No.152 of 2013 dated 29 th October, 2020 and
has submitted that by now the law relating to confessional statement, made
before the investigating 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 as that of a statement made under Section 161 of the Code
of Criminal Procedure. 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 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."
However, the fact remains in this case the rigors of Section
37(1)(b)(ii) of the NDPS Act is not applicable in the instant case, in
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view of the fact that the offences punishable under Section 19 or
Section 24 or Section 27A of the NDPS Act and also for offences,
involving commercial quantity are not involved in this case.
12. This Court would like to record the submission made by the learned
Public Prosecutor to the effect that Tofan Singh (supra) referred to by the
learned senior counsel for the petitioner, is not applicable in the instant case in
view of the fact that the said decisions relates to trial and cannot be considered
for grant or refusal of bail.
13. The Hon'ble Supreme Court had considered the issues required to be
taken into account for consideration of bail in a case under the NDPS Act in
Ranjitsing Brahmajeetsing -vs- State of Maharashtra & Anr. reported in
(2005) AIR SCW 2215, where the Apex Court observed as under :-
"Similar provisions exist in the Maharashtra Control of
Organized Crime Act, 1999 and in particular Section 21 thereof. The
Supreme Court in the recent case of Ranjitsigh Brahmajeetsing
Sharma v State of Maharashtra and another 2005 AIR SCW 2215
had occasion to consider the said provision in great detail. In that
provision also restrictions on the power of the court to grant bail
have been imposed. However, the Supreme Court observed that the
restrictions on the power to grant bail should not be pushed too far
and it was of the opinion that if the court, having regard to the
materials brought on record, is satisfied that in all probability the
accused may not be ultimately convicted, an order granting bail may
be passed. It further held that the satisfaction of the court as
regards his likelihood of not committing any offence while on bail
must be construed to mean an offence under the very Act and not
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any offence whatsoever be it a minor or major offence. It further
observed that for the purpose of considering the application for
grant of bail, although detailed reasons are not necessary to be
assigned the order granting bail must demonstrate an application of
mind, at least in serious cases, as to why the applicant has been
granted or denied the privilege of bail. The duty of the court at this
stage is not to weigh the evidence meticulously but to arrive at a
finding on the basis of broad probabilities."
14. In the aforesaid decision, the Hon'ble Supreme Court has observed
that for the purpose of considering the application for grant of bail, although
detailed reasons are not necessary to be assigned, the order granting bail must
demonstrate an application of mind, at least in serious cases, as to why the
applicant has been granted or denied the privilege of bail. The duty of the court
at this stage is not to weigh the evidence meticulously but to arrive at a finding
on the basis of broad probabilities.
15. Taking into consideration the principles laid down in the case of
Ranjitsing (supra), this Court has considered the facts of the case and the
materials so far collected against the petitioner and in the considered view of
this Court, such materials are not sufficient to justify further custodial detention
of the petitioner, beyond 64 days. That apart, on consideration of the entire
materials on record, and the fact that 19 co-accused persons, involved in this
case, have already been granted bail and this Court also does not find it
necessary that custodial trial of the petitioner is essential for the purpose of trial
of this case, the petitioner is found to be entitled to the grant of bail.
16. Considering all the above, the petitioner is granted bail.
17. Accordingly, the accused-petitioner, named above, shall be released on
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bail in connection with the abovementioned case on furnishing bail bond of Rs.
25,000/- with two suitable sureties of the like amount, to the satisfaction of
jurisdictional learned 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 jurisdictional
learned Special Judge, under the NDPS Act, without prior written
permission from him;
(b) shall deposit his Passport/visa, etc if any, in the court of
the learned jurisdictional Special Judge;
(c) shall not tamper with the evidence of the case; and
(d) 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
18. Before parting with this order, it is made clear that whatever
observations is made in this order is limited to this bail application only and shall
not have any impact in any proceedings arising out of the aforesaid Police case.
19. The petition stands disposed of accordingly.
JUDGE
Comparing Assistant
