Gauhati High Court
Bail Appln./2006/2021 on 9 September, 2021
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GAHC010126912021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2006/2021
Amit Pegu @ Amit K Pegu,
Age- 44 years,
Son of Ashwini Kumar Pegu,
Resident of Hem Barua Path,
Mathuranagar, Downtown,
PS-Dispur,
District- Kamrup (Metro), Assam
----- Accused/Petitioner
-VERSUS-
The State of Assam
Represented by PP, Assam
----- Opposite Party/Respondent
BEFORE
Hon'ble Mr. Justice Hitesh Kumar Sarma
Advocates for the Petitioner :: Mr. AM Bora, Senior Advocate,
Mr. D Gogoi, Advocate,
Mr. DK Vaidya, Advocate.
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Advocate for Respondent :: Mr. M Phukan,
Public Prosecutor
Date of hearing :: 02.09.2021 and 04.09.2021.
Date of Order :: 9th September, 2021
ORDER (cav)
Heard Mr. AM Bora, learned senior counsel assisted by Mr. D Gogoi,
learned counsel for the petitioner. 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-petitioner, namely, Amit Pegu @ Amit K Pegu, in
connection with Latasil Police Station Case No. 282/2021, under Sections
188/120(B)/269/270 of the IPC read with Sections 20(a)/21(b)/25/29 of the
Narcotic Drug Psychotropic Substances Act; Section 67 of the Information
Technology Act, 2000 and Sections 4 and 5 of the Assam Bhang and Ganja
Prohibition Act, 1958.
[3] 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
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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
the petitioner Vikash Jain, 3.61 grams of contraband cocaine was recovered and
seized from the possession of one Sri Ashok Barman (at Sl. No. 7 above) 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 Sri Chayan
Saikia (at Sl. No. 4 above). Both the contrabands were seized by two different
seized lists.
[4] 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.
[5] Mr. Bora, learned senior counsel for the petitioner, has submitted that
the petitioner was an invitee to the birthday of co-accused Amit Baruah
organized in the flat/premises of another co-accused Vikash Jain. He, being an
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invitee, attended the said birthday party and he 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 petitioner, not to speak of conscious possession, at all. He
has specifically referred to the two seizure lists annexed with the petition to
establish the factum of possession of the contrabands. 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.
[6] Mr. Bora, learned senior counsel, 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.
[7] Mr. Bora, learned senior counsel, 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,
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involved in this case.
[8] Learned Senior counsel, Mr. Bora, has 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
petitioner in commission of the offence alleged.
However, the said decision does not specifically relate 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 petitioner was never in
conscious possession of the drugs, involved in this case, as he had attended the
birthday party as an invitee only. However, the decision in Ismailkhan (supra)
was rendered in an appeal and not in a bail matter. There is no dispute at the
bar that the principle governing bail is different from disposal of a case on merit
after trial.
[9] Mr. Phukan, learned Public Prosecutor, has referred to the legislative
intention of enactment of the Narcotic Drugs 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
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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.
[10] 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.
[11] Apart from the above, he has also opposed to the prayer for bail on
the ground that the accused-petitioner was in conscious possession of the
seized contraband together with other co-accused as he was also doing the
party with the other co-accused and in the premises/flat of another co-accused,
Vikash 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 Bombay in the case of Rhea Chakrabarty-Vs- Union
of India, reported in 2020 SCC online 990, that the offences under the NDPS
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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 of
this Court.
[12] Mr. Phukan, has also submitted that from the view point of
economic consideration, status, etc, the petitioner and the co-accused persons
belong to a homogenous group. They are very rich, powerful and influential.
Therefore, if bail is granted, the petitioner and his co-accused are likely to
hamper the investigation of the case and tamper with evidence. There is every
likelihood that the petitioner 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 and another (2001)-2 SCC- 562, 2005
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CriLJ 2112 ( Shaffi Mohammed and Ors -Vs- State of Rajstahn), 2020 SCC
online 990 (Rhea Chakrabarty-Vs- Union of India).
[14] I have perused the materials in the case diary.
[15] On perusal of the materials in the case diary, it does not appear to
this Court that there is any such specific allegation against the petitioner to
connect him with the offences alleged in this case. There is no material available
before this Court, as of now, to indicate involvement of the petitioner with the
offences alleged. The materials in the case diary suggest that the basic
accusation against this petitioner is of consumption of contraband only.
[16] On consideration of the materials in the case diary, as a whole, as
well as the rival submissions made by the respective learned counsel for the
parties, as indicated above, it appears to this Court that further custodial
detention of the petitioner, in the interest of investigation of the case, is not
necessary. This Court has also taken into account the background facts of the
case while taking the view that further custodial detention of the petitioner is
not necessary.
[17] Therefore, the petitioner is granted bail. However, any observations
made in this order 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
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trial of the case, if held.
[18] Accordingly, the accused-petitioner, named above, shall be released
on 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 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
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(e) shall appear before the Investigating Police Officer once in a week until
the entire investigation of the case is completed and as and when called
by the Investigating Police Officer for the purpose of investigation of the
case.
[19] Return the case diary.
[20] The petition stands disposed of accordingly.
JUDGE
Comparing Assistant
