Page No.# 1/9 vs The State Of Assam
2021 Latest Caselaw 2103 Gua

                                                                     Page No.# 1/9

GAHC010126912021




                          THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : Bail Appln./2035/2021



         RAKESH BORGOHAIN AND ANR
         S/O LT. MOHI BORGOHAIN
         R/O RANGIA MANCHA PATH
         RUKMINI NAGAR
         DISPUR BASISTHA ROAD
         P.S. DISPUR
         DIST. KAMRUP (M)
         ASSAM

         2: NAYANIKA BARUAH
         W/O RAKESH BORGOHAIN
         R/O RANGIA MANCHA PATH
          RUKMINI NAGAR
          DISPUR BASISTHA ROAD
          P.S. DISPUR
          DIST. KAMRUP (M)
         ASSAM
         VERSUS

         THE STATE OF ASSAM
         REP. BY THE PP
         ASSAM

                            PRESENT
              HON'BLE MR. JUSTICE HITESH KUMAR SARMA

     For the petitioner        :     Mr. A.M. Bora, Sr. Advocate
                                     Mr. D. D. Gogoi,
                                     Mr. D.K. Baidya
                                     Mr. V.A. Choudhury, Advocates
                                                                         Page No.# 2/9

       For the respondent      :     Mr. M. Phukan,
                                     Public Prosecutor, Assam

       Date of hearing         :     02.09.2021 & 04.09.2021

       Date of Judgment        :     09.09.2021
       and order



                             ORDER (cav)

Heard Mr. AM Bora, learned senior counsel assisted by Mr. D Gogoi, learned counsel for the petitioners. Also heard Mr. M Phukan, learned Public Prosecutor.

[2] This is an application, filed under Section 439 of the Cr.PC. seeking bail of the accused-petitioners, namely, 1) Rakesh Borgohain and 2) Nayanika Baruah, in connection with Latasil Police Station Case No. 282/2021, registered under Sections 188/120(B)/269/ 270 of the Indian Penal Code, read with Sections 20(a)/21(b)/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ; Section 67 of the Information Technology Act, 2000 and Sections 4 & 5 of the Assam Bhang and Ganja Prohibition Act, 1958.

[3] Perused the case diary produced before this Court.

[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:-

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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

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 Page No.# 4/9

the petitioner, 3.61 grams of contraband cocaine was recovered 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] Mr. Bora, learned senior counsel for the petitioners has submitted that the petitioners were invitees to the birthday party of co-accused Amit Baruah organized in the flat/premises of another co-accused Vikash Jain. They, being invitees, attended the said birthday party and they did not have any knowledge about any contraband used/consumed there by anyone of the guests. He has further submitted that since, admittedly, Ashok Barman led to the recovery of the cocaine as concealed by him and as the cannabis were recovered from another co-accused Chayan Saikia, there is no question of possession of contraband by the petitioners, not to speak of their conscious possession. He has specifically referred to the two seizure lists, annexed with the petition, to establish the factum of possession of the contrabands by other two co-accused. According to him, the seizure lists show that the contrabands, involved in this case, were recovered from co-accused Ashok Barman and Chayan Saikia, respectively, ofcourse, from the premises of another co-accused Vikas Jain. He has further submitted that in view of the admitted fact that the Page No.# 5/9

contrabands were recovered from two other co-accused, the petitioners are not required to establish the factum that they did not possess the contrabands.

[7] Mr. Bora, learned senior counsel for the petitioners, has further submitted that there is no allegation at all in respect of an offence of cultivation of cannabis, etc and therefore, the case could not have been registered under Section 20(a) of the NDPS Act. However, this Court finds this to be a curable defect and therefore, restrains itself from commenting on this aspect any further.

[8] Mr. Bora has referred to the provisions of Section 114 of the Indian Evidence Act to submit that taking into account the common course of natural events and human conduct, the petitioner could not have guessed that there would be contraband used in the birthday party, involved in this case.

[9] Mr. Bora, learned senior counsel, has further referred to the case of Bhola Singh -vs- State of Punjab, reported in (2011) 11 SCC 653 with a view to impress upon this Court that there was no culpable mental state of the petitioners in commission of the offences alleged.

However, the said decision does not specifically relates to a matter pertaining to bail in an NDPS case. He has also referred to the judgment of Ismailkhan Aiyubkhan Pathan -vs- State of Gujarat , reported in (2000) 10 SCC 257 to substantiate his submission that the petitioners were never in conscious possession of the drugs, involved in this case, as he had attended the birthday party as an invitee only.

The principles governing bail and the question of acquittal in a trial, on Page No.# 6/9

merit, after appreciation of evidence on oath, cannot be conceded to be same. Therefore, the ratio in Ismailkhan Aiyubkhan Pathan (supra) is not found applicable in this case.

[10] Mr. Phukan, learned Public Prosecutor, has referred to the legislative intention of enactment of the Narcotic Drug Psychotropic Substances Act (herein after referred to as the "NDPS Act") and has submitted that it has been enacted with a view to curb the social menace of trafficking of drugs and its addiction, and therefore, he has submitted that bail of the accused in a case under the NDPS Act, which is statutorily non-bailable, should be considered in a stringent manner and no leniency should be shown to person accused of offences under the NDPS Act.

[11] Mr. Phukan, learned Public Prosecutor, has also submitted that the offences under the NDPS Act being in the nature of socio-economic offence having serious impact on the society at large, the interest of the society should get upper most priority. He has further submitted that the offence under the said Act, not being a traditional offence in nature, the approach should not be usual and it should be looked into from the angle of societal benefit. Apart from the above, he has also opposed to the prayer for bail on the ground that the accused-petitioners were in conscious possession of the seized contraband together with other co-accused as they were also doing the party with the other co-accused and in the premises/flat of another co-accused Vikas Jain. He has further submitted that the materials in the case diary show that such parties are organized in the said premises off and on, and therefore, until the investigation reaches a reasonably definite stage, the prayer for bail be rejected. He has also submitted, referring to the decision rendered by the Hon'ble High Court of Page No.# 7/9

Bombay in the case of Rhea Chakrabarty-Vs- Union of India, reported in 2020 SCC online 990, that the offences under the NDPS Act are non-bailable and the petitioner cannot claim bail as a matter of right. However, in the absence of any plea that the offences, under the NDPS Act, involved in this case are bailable, this issue does not require consideration by this Court.

[12] Mr. Phukan, learned Public Prosecutor has also submitted that from the view point of economic consideration, status, etc, the petitioners and the co-accused persons belong to a homogenous group. They are very reach, powerful and influential. Therefore, if bail is granted, the petitioners and his co- accused are likely to hamper the investigation of the case and tamper with evidence. There is every likelihood that the petitioners would influence the witnesses of this case. He has, therefore, prayed for rejection of the prayer for bail once again.

[13] To bring home his argument, Mr. Phukan, learned Public Prosecutor has also referred to the following case laws:-

Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222, Madan Lal v. State of H.P., (2003) 7 SCC 465, Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513, Noor Aga v. State of Punjab, (2008) 16 SCC 417, Naresh Kumar v. State of H.P., (2017) 15 SCC 684, (1999) 9SCC-429 (Union of India- vs- Ram Samuh & Anr), State of Kerala v. Rajesh, (2020) 12 SCC 122, N.R. Mon v. Mohd. Nasimuddin, (2008) 6 SCC 721, (2001) 2 SCC 566 ( Babua -vs- state of Orissa), Narcotics Control Bureau -Vs- Kishan Lal ( 1991)-1 SCC 705, Intelligence Officer, Narcotics C. Bureau -Vs- Sambhu Sonkar Page No.# 8/9

and another (2001)-2 SCC- 562, 2005 CriLJ 2112 ( Shaffi Mohammed and Ors -Vs- State of Rajstahn), 2020 SCC online 990 (Rhea Chakrabarty-Vs- Union of India).

[14] On perusal of the materials in the case diary, it appears that the petitioners attended the birthday party, involved in this case, on invitation. The basic accusation against the petitioners is of consumption of drugs/contraband. There is no materials available before this Court, as of now, to indicate involvement of the petitioner with the offences alleged to such an extent that their further custodial detention is necessary.

[15] Therefore, on consideration of the entire materials in the case diary, as a whole, and on consideration of the rival submissions made by the respective learned counsel for the parties, as indicated above, this Court does not consider further custodial detention of the petitioners, in the interest of investigation of the case necessary.

[16] Therefore, the petitioners are granted bail. However, any observations made in this application is tentative and for the purpose of disposal of this bail application only and shall not be used for any other purpose, including in the trial of the case, if held.

[17] Accordingly, the accused-petitioners, named above, shall be released on bail in connection with the abovementioned case on furnishing bail bond of Rs. 25,000/- each with two suitable sureties each 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-petitioners:

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(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 hamper with the investigation, or tamper with the evidence of the case;

(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; and

(e) shall appear before the Investigating Police Officer once in a week until the entire investigation of the case is completed or as and when called by the Investigating Police Officer for the purpose of investigation of the case.

[18]       Return the case diary.

[19]       The petition stands disposed of accordingly.




                                                       JUDGE


Comparing Assistant