Gauhati High Court
Gogoi Deori@ Pallab Deuri@ Raj Kumar ... vs The State Of Assam on 19 January, 2024
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GAHC010283362023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./4543/2023
GOGOI DEORI@ PALLAB DEURI@ RAJ KUMAR DEORI
S/O SHRI DHANESWAR DEORI
R/O VILL- JARABARI NEAR FCI, P.O. -784164, P.S. NARAYANPUR,
DIST. LAKHIMPUR, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. P J SAIKIA, SR. ADV
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 19.01.2024
1) Heard Mr. P. J. Saikia, learned senior counsel assisted by Mr. P.
Bordoloi, learned counsel for the petitioner. Also heard Ms. S. Jahan, learned
Additional Public Prosecutor for the State.
2) This application under Section 439 of the Code of Criminal Procedure,
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1973 has been filed by the petitioner, namely, Gogoi Deori @ Pallab Deuri @ Raj
Kumar Deori who is detained behind the bars since 04.12.2023 in connection
with Special (NDPS) Case No. 18/2023 under Section 20(b)(ii)(C) of the NDPS
Act, 1985 pending before the Court of learned Additional Sessions Judge (FTC),
Lakhimpur, North Lakhimpur.
3) The gist of accusation in this case is that on 13.12.2022, one Rikumoni
Medhi S. I. of police lodged an FIR, before the Officer-in-Charge of the
Narayanpur Police Station, inter-alia, alleging that on receipt of information
through reliable sources that one Moina Kachari is selling suspected Ganja in his
residence for business purposes, a search operation was conducted in the
residence of said Moina Kachari and 110.045 kg of suspected ganja was
recovered from the residence of the said Moina Kachari.
4) On receipt of the said FIR, Narayanpur P. S. Case No. 78/2022 under
Section 20(b)(ii)(C) of the NDPS Act, 1985 was registered and investigation was
initiated. After completion of investigation, the charge sheet was laid against
four numbers of accused persons including the present petitioner showing him
as an absconder in the column No. 2 of the charge sheet under Section 20(b)(ii)
(C) of the NDPS Act, 1985.
5) It is submitted by learned senior counsel for the petitioner that though
the petitioner was shown as an absconder in the charge sheet, he was never
searched by the police during the course of investigation and when non bailable
warrant of arrest was issued against the present petitioner by the Trial Court,
he preferred a criminal petition which was registered as Criminal Petition No.
1258/2023 wherein by order dated 30.11.2023 the petitioner was directed to
appear before the Trial Court and the non bailable warrant which was issued
against him was kept in abeyance till 04.12.2023.
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6) It is further submitted by the learned senior counsel for the petitioner
that in pursuant to the directions of this Court, the petitioner appeared before
the Trial Court i.e., the Court of learned Additional Sessions Judge (FTC),
Lakhimpur, North Lakhimpur on 04.12.2023 and had preferred a bail application.
However, the said application was rejected by the Trial Court on the ground that
the embargo of Section 37 of the NDPS Act, 1985 is applicable in the instant
case.
7) Learned senior counsel for the petitioner has also submitted that in the
instant case apart from the statement of the co-accused which were recorded
under Section 161 of the Code of Criminal Procedure, 1973 and Section 67 of
the NDPS Act, 1985, no incriminating material could be collected by the
Investigating Officer against the present petitioner and learned Senior counsel
has also submitted that in terms of the judgment of the Apex Court in "Tofan
Singh Vs. State of Tamil Nadu" reported in (2021) 4 SCC 1, the confessional
statement made under Section 67 of the NDPS Act, 1985 is inadmissible as
evidence in trial. Learned senior counsel for the petitioner has also cited a
ruling of the Apex Court in "State Vs. Pallulabid Ahamad Arimutta and Others"
reported in AIR online 2022 SC 130 wherein it was observed that the
confessional statement of the accused or the co-accused recorded under Section
67 of the NDPS Act, 1985 cannot be the basis of overturning the orders of
releasing the accused person on bail.
8) Learned senior counsel for the petitioner has submitted that for
applying the embargo of Section 37 of the NDPS Act, 1985 in the instant case
some other material must be there against the present petitioner apart from the
statement of the co-accused which were recorded under Section 161 of the
Code of Criminal Procedure, 1973 and Section 67 of the NDPS Act, 1985.
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However, in the instant case, no such material is available on record and
therefore, it is submitted by learned senior counsel for the petitioner that for
the limited purpose of consideration of the instant bail application, it can be said
that there is no reasonable ground for believing that the present petitioner has
been guilty of the offence alleged against him in this case.
9) It is further submitted by learned senior counsel for the petitioner that
in the meanwhile the other co-accused persons namely, Moina Kachari @
Tulashi, Haren Kachari and Pranjal Deori have already been granted bail by a
Coordinate Bench of this Court in Bail Application No. 3067/2023 by order dated
18.10.2023.
10) On the other hand, learned Additional Public Prosecutor has submitted
that from the scanned copy of the case diary of the Narayanpur P. S. Case No.
78/2022, it appears that there are implicating materials against the present
petitioner in the case diary. However, she has fairly submitted that the said
implicating materials are the statements of the co-accused Moina Kachari and
the other co-accused who have stated in their statement recorded under Section
161 of the Code of Criminal Procedure, 1973 that the seized contraband was
kept in the house of the Moina Kachari by the present petitioner along with
other co accused persons.
11) Learned Additional Public Prosecutor has also referred to the statements
made by other witnesses under Section 161 of the Code of Criminal Procedure,
1973, wherein they have stated that they know that the present petitioner has
been indulging in the business of illicit drug for a long time.
12) I have considered the submissions made by the learned counsel for both
the parties and have gone through the materials available on record including
the scanned copy of the case record of Special (NDPS) Case No. 18/2023 as
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well as the scanned copy of the case diary of Narayanpur P. S. Case No.
78/2022.
13) On perusal of the materials available on record it appears that apart from
the statements of the co-accused persons recorded under Section 161 of the
Code of criminal Procedure, 1973, implicating the present petitioner, there is no
other material on record connecting the present petitioner with the seized
contraband. Though there are statement of independent witnesses recorded
under Section 161 of the Code of Criminal Procedure, 1973, wherein they have
stated that the present petitioner has been indulged in the businesses of illicit
drugs since long, no specific statement has been made by any independent
witnesses linking the present petitioner to the contraband which has been
recovered from the house of the co-accused Moina Kachari in this case. It has
been observed by the Apex Court in many of its judgments including "Tofan
Singh Vs. State of Tamil Nadu" (Supra) that the confessional statement of the co-
accused recorded under Section 67 of the NDPS Act, 1985 is inadmissible as
evidence in trial and same may not be the basis for refusing the bail to an
accused. Hence, this Court is of the considered opinion that as in the present
case, apart from the statement of the co-accused there is no other material
against the present petitioner and as the said statements are inadmissible in
evidence, hence, for the limited purpose of the consideration of the instant bail
application, this Court is of the opinion that there are reasonable grounds to
believe that the petitioner is not guilty of the evidence alleged in the FIR in the
instant case.
14) Further, as there is no material on record to show any earlier criminal
antecedent of the present petitioner, and also as there is no material on record
to come to a finding that if he is released on bail, he may commit any other
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offence, therefore, this Court is of the considered opinion that the embargo of
Section 37 of the NDPS Act, 1985 is not applicable in the case of the present
petitioner.
15) For the reasons mentioned hereinabove, the petitioner named above
shall be released on bail in connection with Special (NDPS) Case No. 18/2023,
registered under Section 20(b)(ii)(C) of the NDPS Act, 1985, pending before the
Court of the learned Additional Sessions Judge (FTC), Lakhimpur, North
Lakhimpur, on furnishing a bail bond of Rs.1,00,000/- (Rupees One Lakh only)
each with two suitable sureties each of the like amount (one of the sureties
should be a Government employee) to the satisfaction of learned Additional
Sessions Judge (FTC), Lakhimpur, North Lakhimpur subject to the following
conditions:
i. That the petitioner shall not leave the territorial jurisdiction of
learned Additional Sessions Judge (FTC), Lakhimpur, North
Lakhimpur without prior written permission from him ;
ii. That 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 to any police officer.
iii.That the learned Additional Sessions Judge (FTC), Lakhimpur,
North Lakhimpur may impose any additional condition(s) if he
deems it fit and proper to do so to procure the attendance of the
petitioner during trial.
16) The observations made in this order are limited only for the purpose of
disposal of the instant bail application and shall not have any bearing upon the
trial pending against the present petitioner.
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17) This bail application is accordingly disposed of.
JUDGE
Comparing Assistant
