Debajani Hazarika @ Debojani ... vs The State Of Assam
2021 Latest Caselaw 2112 Gua

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GAHC010126912021




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

                          Case No. : Bail Appln./2036/2021


         DEBAJANI HAZARIKA @ DEBOJANI HAZARIKA
         D/O NAREN HAZARIKA
         R/O FOREST GATE
         NARENGI
         H.NO. 29
         P.S. NOONMATI
         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.S. Deka
                                     Mr. B.K. Barman, Advocates

     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
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                                     ORDER

(CAV)

Heard Mr. S. Deka, 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, Debajani Hazarika @ Debojani Hazarika, in connection with Latasil Police Station Case No. 282/2021 , 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 was 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 Page No.# 3/8

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

5. 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 co-accused Vikas Jain, 3.61 grams of suspected 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 type bag. 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 contrabands were seized vide two different seized lists.

6. The 18 (eighteen) persons, named above, were apprehended and Page No.# 4/8

were arrested on 14.08.2021 from the place of occurrence and they were suspected to be in criminal connivance as well as in conscious possession of the contraband so seized.

7. Mr. Deka, learned 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. She, being an invitee, attended the said birthday party and she 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. He has specifically referred to the two seizure lists annexed with the petition to establish the factum of possession of the contrabands by two other co-accused. In view of such facts appearing from the FIR as well as the seizure lists, it is submitted that the petitioner is entitled to the grant of bail and her further custodial detention is not necessary.

8. Mr. Phukan, learned Public Prosecutor, has referred to the legislative intention of enactment of the Narcotic Drugs and 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.

9. Mr. Phukan, learned Public Prosecutor, has also submitted that the offences under the NDPS Act being in the nature of socio-economic offence Page No.# 5/8

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-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 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 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.

10. Mr. Phukan, learned Public Prosecutor 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.

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

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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 CriLJ 2112 ( Shaffi Mohammed and Ors -Vs- State of Rajsthan), 2020 SCC online 990 (Rhea Chakrabarty-Vs- Union of India).

12. On perusal of the case diary, it is found that the petitioner joined the birthday party, involved in this case, on invitation by the co-accused Jubee Baruah, wife of another co-accused Amit Baruah. She attended the birthday party of Amit Baruah in the house/premises of co-accused Vikas Jain in the Riveria Apartment, Kharguli, Guwahati. There is no material in the case diary to indicate that she had consumed/procured the contrabands, although the basic accusation against her is of consumption of contraband. We have already come to know from the admitted fact that the seizure of the contrabands were made from the possession of two other co-accused. As far the accusation of consumption is concerned, the investigating agency is yet to collect incriminating materials against the petitioner. Therefore, in view of the materials in the case diary, further custodial detention of the petitioner is not considered necessary. Any observation made in this order is for the purpose of disposal of Page No.# 7/8

this bail application only and shall not be used for any other purpose, including in the trial of the case, if held.

13. 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

(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.

14. Return the case diary.

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15. The petition stands disposed of accordingly.

JUDGE

Comparing Assistant