Gauhati High Court
Plaban Borthakur vs The State Of Assam on 7 September, 2021
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
Page No.# 1/6
GAHC010124772021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/2395/2021
PLABAN BORTHAKUR
SON OF LT. RUDRA MOHON BORTHAKUR
R/O VILL- UTTAR JAJORI MULANKAMURA, P.O. BORMONIPUR
P.S. MIKIRVETA,
DIST. MORIGAON, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
PRESENT
HON'BLE MR. JUSTICE HITESH KUMAR SARMA
For the petitioner : Mr. A.M. Bora, Senior Advocate
Mr. D. Mahanta, Advocate
For the Respondent : Mr. M. Phukan,
Public Prosecutor, Assam
Date of hearing : 02.09.2021
Date of Judgment : 07.09.2021
and order
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ORDER
(CAV) This is an application, filed under Section 438 of the Cr.PC. seeking pre- arrest bail of the accused-petitioner, namely, Plaban Borthakur, in connection with Jagiroad P.S. Case No.432/2021 registered under Sections 120B/370, added Section 420 of Indian Penal Code, read with Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989.
Heard Mr. A.M. Bora, learned senior counsel assisted by Mr. D. Mahanta, learned counsel for the petitioner. Also heard the objection raised by Mr. M. Phukan, learned Public Prosecutor, Assam appearing for the State Respondent.
The fact of the case, as appears from the FIR, is that the Village Defence Party (hereinafter referred to as 'VDP') of Dakhin Dharamtul, received information about an illegal kidney racket working in the area. The VDP of Dakhin Dharamtul Village came to know from various sources that many poor people of their village were taken to Kolkata alluring them that they would be given money and, thereafter, prepared fake and false documents collusively and, then, removed and sold their kidneys to various customers. It is alleged that an illegal racket has been working in the entire process of removing and selling of kidneys. It has specifically been mentioned in the FIR that one Romen Medhi used to collect money from some sources at Guwahati and, thereafter, take those people of the village to Kolkata for selling their kidneys. On 10.07.2021, the VDP came to know that someone is coming to their village to pay advance money to one Dharoni Das being price of his kidney to be sold. At about 12 Page No.# 3/6 noon on that day, one lady came in a luxurious vehicle to the house of the aforesaid Dharoni Das and when she was about to pay the advance money to the said Dharoni Das, she was caught hold by the villagers. The Village Defence Party came to know from the said lady that several persons from their village had sold their kidneys and she had helped them in selling their kidneys. On receipt of the FIR, on the above facts, Jagiroad Police Station registered the case, as aforesaid.
Mr. Bora, learned senior counsel for the petitioner, while submitting, in support of the prayer for anticipatory bail of the petitioner, has strenuously argued that the name of the petitioner does not figure in the FIR and there is no material to disclose his involvement with the commission of the offence alleged in the instant case in any manner. He has further submitted, referring to the provisions of Section 9 of the Transplantation of Human Organs and Tissues Act, 1994, that there is procedure laid down for removal and transplantation of kidney. He has further referred to the provisions of Section 9(5) of the said Act that there shall be joint application of the donor and recipient to be placed before the Authorization Committee and the Authorization Committee, after holding an inquiry and after satisfying itself that the applicants had complied with all the requirements of the said Act and the Rules made thereunder, grant the applicants the approval for the removal and transplantation of the human kidney. He has further submitted that after exhausting all required legal formalities, on due application by the donor and recipient concerned, the authority approves donation and transplantation of the kidney. According to him, there is no allegation against the petitioner at all that he had caused transplantation of kidney of any person by obtaining approval fraudulently from the Authorization Committee. It has further been submitted that the petitioner Page No.# 4/6 has no connection with any transplantation and donation of kidney to and by any person.
Learned senior counsel for the petitioner has also submitted that Section 370 of the Indian Penal Code has no application in the given facts of the instant case in view of the fact that none of the alleged donors have raised any allegation of their exploitation to the effect that they had donated the kidney under threat, under force or coercion or under any inducement. No exploitation is also alleged by any of the alleged victims, it is submitted.
Mr. Phukan, learned Public Prosecutor, while vehemently resisting the prayer for bail, has submitted, on the basis of materials in the case diary, particularly the statements of the two victims, that they were forced to allow removal of their kidneys under threat and were also exploited.
To find out the basis of such submission made by the learned Public Prosecutor, I have peeped into the materials in the case diary, particularly the statements of the victims, found to have been recorded by the investigating police officer. On scanning the statements of one of the victims, recorded under Sections 161 and 164 of the Code of Criminal Procedure, it is found that he has specifically implicated the petitioner to the effect that, at his instance, he was taken to Kolkata for removal/donation of his kidney. Even the contact person had connected the said witness with the present petitioner over phone. There is startling revelation made by the said witness that he had taken sweets before the necessary operation could be made for removal of kidney so as to see that his blood sugar level gets increased and his kidney is not taken out. The present petitioner and some of his co-accused scolded and threatened the aforesaid Page No.# 5/6 witness and, thereafter, they had forcibly taken his wife to the hospital for necessary examination for removal of her kidney in lieu of his kidney. But, fortunately, her blood group did not match with the person who required the kidney and, therefore, her kidney could not be removed. The present petitioner is specifically alleged in both the statements by the aforesaid victim witness that all these had happened at the instance of the present petitioner.
Another victim witness, in his statement recorded under Section 164 of the Code of Criminal Procedure, has categorically stated that his kidney was removed and he was given Rs.2.70 lakhs by the petitioner as price for the kidney and the agreed amount, as fixed, was not paid to him. It has also come out from the statement of this witness that the price for the kidney was agreed at Rs.5.50 lakhs. In his statement, referred to above, he has narrated the entire facts starting from approaching him to that of donation/removal of his kidney and part payment made therefor. The statement of this witness has specifically referred the petitioner as the person who had made the payment.
Such being the materials appearing from the statements of the aforesaid two witnesses, it is found that the said victims were taken to Kolkata by using threat, force and inducement, as provided in Section 370 of the Indian Penal Code. According to the learned counsel for the petitioner, there is no 'exploitation' as provided in Explanation No.1 of Section 370 of the Indian Penal Code. But, there is, prima facie, materials found of exploitation of atleast two witnesses, whose statements have been referred to above, by the present petitioner.
Mr. Phukan, learned Public Prosecutor has also submitted that documents, Page No.# 6/6 as required to obtain a certificate from the concerned Board/authority to permit the donor and the recipient and to donate and receive the kidney were fake and forged. It has come out from the materials so far collected that since the donor were not relatives of the recipient of the kidney were trained to pose themselves as relatives and in that way caused the approval for transplantation of kidney.
In view of the materials discussed above and the extent of involvement of the petitioner with the commission of the alleged offence and the fact that serious investigation is being conducted to unearth the entire racket involved in the alleged offence, and taking these facts in combination with the facts of its adverse affect in the society as a whole, this Court is not inclined to grant the privilege of pre-arrest bail to the petitioner. Hence, the prayer for bail stands rejected.
The interim protection granted to the petitioner vide order dated 19.08.2021 stands vacated.
The anticipatory bail application, accordingly, stands disposed of.
Return the case diary.
JUDGE Comparing Assistant