Gauhati High Court
Bitupon Kalita vs The State Of Assam on 17 January, 2022
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GAHC010185212021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/3678/2021
BITUPON KALITA
S/O PUTUL KALITA
VILL- KUMARPARA
P.S. BHARALUMUKH
DIST. KAMRUP (M), ASSAM,
PIN-781009
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 17-01-2022
This is the second application under Section 438 Cr.P.C. preferred by accused-
petitioner Bitupon Kalita who apprehends his arrest in connection with Digboi P.S. Case
No. 173/2021 under Sections 22(b) of NDPS Act.
Heard Mr. H.R.A. Choudhury, learned Senior Counsel for the accused-petitioner. Also
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heard Mr. B.B. Gogoi, learned Addl. P.P. for the State of Assam.
Mr. H.R.A. Choudhury, learned Senior Counsel submits that the accused-petitioner is
serving as a Professor in the Psychiatric Department at Lakhimpur Medical College Hospital,
Lakhimpur and earlier he was serving in Assam Medical College, Dibrugarh in the Psychiatric
Department and as such he has issued some prescription to his patients prescribing some
medicines. It is further submitted that no contraband articles have been recovered from the
possession of the accused-petitioner and he has been implicated here in this case by one co-
accused, namely, Debeswar Baruah, from whose possession 120 packets of Addnok-N tablets
recovered during Naka checking. It is further submitted that the accused-petitioner received
notice under Section 41 A Cr.P.C. and he appeared before the IO concerned on several
occasions and his statement has already been recorded and that the statement of co-
accused, namely, Debeswar Baruah is not admissible against the petitioner in view of the
judgment of Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No. 5703 of 2021 in
(Bharat Chaudhury Vs. Union of India) and therefore it is contended to allow the petition.
On the other hand Mr. B.B. Gogoi, learned Addl. P.P. produced the case diary and
status report before this Court and submits that the accused in his statement admitted his
guilt, but in view of the judgment of Hon'ble Supreme Court in Bharat Chaudhury Vs. Union
of India (supra) he leave the matter in the discretion of this Court.
In his reply to the submission of Mr. Gogoi, Mr. H.R.A. Choudhury, learned Senior
Counsel for the accused-petitioner submits that the statement of the accused also is not
admissible in view of the judgment of Hon'ble Supreme Court in Bharat Chaudhury Vs. Union
of India (supra). Mr. Choudhury further submits that the name of the accused-petitioner finds
no mention in the FIR also. Therefore, it is contended to allow the petition.
Having heard the submission of learned Advocates of both sides, I have gone through
the case diary and the status report carefully and the documents placed on record and also
the judgment of Hon'ble Supreme Court in Bharat Chaudhury Vs. Union of India (supra).
It appears that Digboi P.S. Case No. 173/2021 under Sections 22(b) of NDPS Act is
registered on the basis of one FIR lodged by ASI, namely Priyadhar Handique of Digboi P.S.
on 23.06.2021 to the effect that they had apprehended one Debeswar Baruah of Pengeri,
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under Tinsukia district, during Naka checking and found 120 packets of Addnok-N tablets
from his possession without any documents. It also appears from the statement of Debeswar
Baruah that he collects the same from the present accused-petitioner.
It is an admitted fact that no contraband article has been recovered from the
possession of the accused-petitioner. He has been implicated by co-accused Debeswar
Baruah, from whose possession 120 packets of Addnok-N tablets recovered during Naka
checking. And the petitioner also in his statement, admitted his guilt. But in view of the
judgment of Hon'ble Spreme Court in Bharat Chaudhury Vs. Union of India (supra) and also
in case of Tofan Singh Vs. State of Madras, reported in (2021) 4 SCC 1, neither the statement
of co-accused nor the statement of accused are admissible in trial for an offence under
section NDPS Act. And except the aforesaid piece of incriminating materials no other material
could be collected against him. He has already appeared before the IO concerned and his
statement is recorded under Section 41A Cr.P.C, and extended co-operation in the
investigation.
In view of above and also in view of the nature and gravity of the offence and
punishment prescribed for the same and in view of the submission of offence by learned
Advocates of both sides, this Court is inclined to extend the privilege of pre-arrest bail to the
accused-petitioner. Accordingly, it is provided that in the event of arrest of the accused-
petitioner viz., Bitupon Kalita, in connection with Digboi P.S. Case No. 173/2021 under
Sections 22(b) of NDPS Act, he shall be enlarged on bail of Rs. 20,000/- with one surety of
the like amount to the satisfaction of the Arresting Authority. The above privilege is however
subject to the following conditions-
(1) The petitioner shall not leave the territorial jurisdiction of the
aforesaid police station, without prior written permission from its officer-in-
charge,
(2) The petitioner shall not hamper with the investigation, or tamper
with the evidence of the case,
(3) The petitioner 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
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to any police officer,
Anticipatory bail application stands disposed of.
The Case Diary be sent back.
JUDGE
Comparing Assistant
