Pankaj Kakoty vs The State Of Assam
2021 Latest Caselaw 2114 Gua

                                                                        Page No.# 1/8

GAHC010126912021




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

                         Case No. : Bail Appln./2031/2021


             PANKAJ KAKOTY
             S/O RUKMINIGAON'
             DISPUR
             P.S. DISPUR
             DIST. KAMRUP (M)
             ASSAM

             VERSUS

             THE STATE OF ASSAM
             REP. BY PP
             ASSAM



                            PRESENT
              HON'BLE MR. JUSTICE HITESH KUMAR SARMA

       For the petitioner        :      Mr. A.M. Bora, Sr. Advocate
                                        Mr. D. Gogoi,
                                        Mr. D.K. Baidya
                                        Mr. V.A. Choudhury, 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
                                                                     Page No.# 2/8

                                   ORDER

(CAV)

This is an application made under Section 439 Cr.P.C., seeking bail by the accused-petitioner, namely, Pankaj Kakoty, 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.

2. Heard Mr. A.M. Bora, learned senior counsel for the petitioner. Also heard Mr. M. Phukan, learned Public Prosecutor, Assam for the Respondent State.

3. Case diary produced has been perused.

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 Page No.# 3/8

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

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 present petitioner, 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 Page No.# 4/8

of one Chayan Saikia. Both the contrabands were seized vide two different seizure lists.

6. 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 in conscious possession of the contrabands so seized.

7. It has been submitted by Mr. Bora, learned senior counsel that the petitioner, on the day of occurrence, had attended the birthday party of co- accused Amit Baruah at the flat/premises of one of another co-accused Shri Vikas Jain, organized at Riviera Apartment, Kharguli, Guwahati. Mr. Bora, has referred to the two seizure lists annexed with the petition and has submitted that the seizure lists show that the contrabands involved in this case were seized from the possession of two other co-accused, namely, Shri Ashok Barman and Shri Chayan Saikia, ofcourse, from the premises of Shri Vikas Jain, aforesaid. He has further referred to the contents of the FIR and has submitted that the seizures were admittedly made from the possession of the aforesaid two persons. It has further been submitted that the suspected cocaine was seized from the place of concealment by the investigating police officer on being led by the co-accused Shri Ashok Barman himself and the contraband cannabis was seized, as indicated above, from the possession of Shri Chayan Saikia. He has further submitted that since the contrabands were admittedly seized from the possession of the two co-accused persons, named above, there is no question of possession, not to speak of conscious possession, of the petitioner. He has Page No.# 5/8

further submitted that it was not possessed by the petitioner is not required to be established by the petitioner since this position is accepted by the investigating agency as per the contents of the FIR itself.

8. 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.

9. Mr. Phukan, 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-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 Page No.# 6/8

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. 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:-

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 Page No.# 7/8

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. I have considered the rival submissions made by the respective learned counsel for the parties. I have also considered the materials in the case diary. On perusal of the materials in the case diary, it is found that although the drugs were found in the premises of the co-accused Shri Vikas Jain and used for celebrating the birthday party of another co-accused Amit Baruah and the contrabands were seized from the other two co-accused, named above, yet he had a role in arranging contraband in the party. There is material collected by the investigating police officer to show that he had instructed some of the co-accused persons attending the birthday party to bring the contrabands to the party for their use and consumption. However, the investigation in the case appears to have been proceeded with a view to unearth the entire facts leading to the commission of offences, involved in this case.

13. This Court has taken note of the materials in the case diary, as indicated above. The materials available in the case diary, as a whole, suggest involvement of the petitioner. On examination of the materials, Page No.# 8/8

available in the case diary, it appears to this Court that investigation in respect of the petitioner appears to be in its preliminary stage requiring some time to be granted to the investigating agency to carry out further investigation. That apart, taking into consideration the submission made by the learned Public Prosecutor that there is a prayer by the investigating agency for joint interrogation of the petitioner with some other co-accused, it is considered inappropriate, at this stage, to release the petitioner on bail.

14. In view of the above, the prayer for bail of the petitioner is rejected at this stage, in the interest of further investigation of the case.

15. Return the case diary.

JUDGE

Comparing Assistant