Gauhati High Court
Rajib Pegu @ Rajiv Pegu vs The State Of Assam on 16 December, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/7
GAHC010198942021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3334/2021
RAJIB PEGU @ RAJIV PEGU
S/O SRI GANESH PEGU
PERMANENT RESIDENT OF VILL- PADMAPUR, P.O. GABHARU TUNIJAN,
P.S. LALUK, DIST. LAKHIMPUR, PIN-784160, ASSAM
PRESENTLY RESIDING AT BORALIMORA
P.O. KAMBONG, P.S. PANIGAON
DIST.LAKHIMPUR, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR G JALAN
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 16-12-2021 Heard Mr. G. Jalan, learned counsel for the accused-petitioner and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the respondent State of Assam.
2. By this application under Section 439, Code of Criminal Procedure, 1973 [CrPC], the petitioner viz. Sri Rajib Pegu @ Rajiv Pegu has prayed for his release on bail in connection with Special NDPS Case no. 25[N.L.]/2021, arising out of Bihpuria Police Station Case no. 500/2021 which was registered under Sections 21(b)/29 of the Narcotic Drugs and Psychotropic Substances Page No. 2/7 [NDPS] Act, 1985.
3. Mr. Jalan, learned counsel for the accused-petitioner has submitted that from the First Information Report [FIR] itself, it is evident that the accused-petitioner was apprehended on the basis of the statement of the other arrested co-accused viz. Smti. Jyoti Doley who had stated that she bought the contraband [heroin] from the accused-petitioner. It is his submission that neither the statement of the arrested co-accused person, Smti. Jyoti Doley nor any inculpatory statement of the accused-petitioner would have any evidentiary value during the course of trial. It is his submission that in all possibility, the accused petitioner is likely to be acquitted of the charges framed against him.
4. Mr. Gogoi, learned Additional Public Prosecutor has opposed the prayer for bail on the ground that in her statement, the other arrested co-accused person viz. Smti. Jyoti Doley had implicated the accused-petitioner by saying that she had bought the contraband [heroin] from the accused-petitioner. He has further submitted that in his statement made before the I.O., the accused-petitioner had admitted about the contraband [heroin] being handed over to the other arrested co-accused, Smti. Jyoti Doley by him.
5. The First Information Report [FIR] was lodged by a Sub-Inspector of Police, attached to Banderdewa Out Post under Bihpuria Police Station, on 22.08.2021. An information was received from a source to the effect that an woman named Smti. Jyoti Doley was selling some drugs at No. 2 Parbatipur Gaon from her residence as well as in Banderdewa Centre area. The source also revealed that Smti. Jyoti Doley was available at that point of time in her residence at No. 2 Parbatipur Gaon. A General Diary Entry no. 430 dated 22.08.2021 was registered and pursuant to the said G.D. Entry, a team of police personnel proceeded to No. 2 Parbatipur Gaon. The accused Smti. Jyoti Doley was apprehended. Upon due formalities and by calling three independent witnesses, the accused Smti. Jyoti Doley was searched/frisked by an women constable and upon search, the following items were recovered during the search - [a] 26 [Twenty Six] nos. of small plastic containers inside of which suspected to be Heroin [orange colour powder substances]; [b] One black colour polythene carry bag; [c] Cash Rs. 17,500/- [seventy thousands and five hundreds] only; [d] One Vivo Mobile handset bearing IMEI Nos. 869711055171336 & 869711055171328 along with one sim card bearing contact no. 9394546306, and [e] One Red Page No. 3/7 colour ladies bad. When the contraband substance was weighed, the total quantity was found to be 8.16 grams [excluding plastic containers and including polythene]. The suspected contraband and other articles were accordingly seized by seizure memos, witnessed by the independent witnesses. During the interrogation, the apprehended accused, Smti. Jyoti Doley admitted that the seized suspected contraband [heroin] was bought by her from the accused-petitioner. On the basis of the said statement of the arrested co-accused, Smti. Jyoti Doley, the accused-petitioner was arrested. After arrest, both the accused persons were produced before the Court of learned Chief Judicial Magistrate, Lakhimpur at North Lakhimpur on 23.08.2021 and since then, both the accused persons are in custody.
6. The I.O. of the case after completing the investigation of the case, had submitted the charge sheet under Section 173[2], CrPC vide Charge Sheet no. 352/2021 dated 30.09.2021 finding a prima facie case for offences under Sections 21(b)/29, of the NDPS Act against the two accused persons.
7. Upon submission of the charge sheet, the case has been registered as Special [NDPS] Case no. 25[N.L.]/2021. Upon causing production of the accused persons from custody, the copies as per the provisions of Section 207, CrPC were furnished to the accused persons. Charges under Section 21(b) and Section 29 of the NDPS Act were framed, read over and explained to the accused persons on 08.11.2021 to which they pleaded not guilty and claimed to be tried. The accused-petitioner preferred a bail application before the learned Special Court and the same was rejected by an order dated 08.11.2021. While rejecting the bail application, the learned Special Court had observed that the said Court had already rejected two earlier bail applications vide order dated 06.10.2021 and order dated 25.10.2021. In view of the rejection of the earlier two bail applications, the third application was found without any new ground for consideration. It was further observed that the record prima facie revealed that accused persons were involved in illicit drug trafficking and granting bail at that stage might result in indulging the same offence again by the accused person.
8. I have perused the materials available in the case record of Special NDPS Case no. 25[N.L.]/2021, arising out of Bihpuria Police Station Case no. 500/2021, as well as the scanned copies of the concerned case diary of Bihpuria Police Station Case no. 500/2021.
Page No. 4/79. From the materials available in the above case record, it is noticed that after drawing sample from the suspected seized contraband [Heroin], the same was sent to the Forensic Science Laboratory [FSL], Assam for chemical examination. As per the report of the FSL, Assam, the sample gave positive tests for Heroin and the percentage of Heroin in the sample was found to be containing 88.47% Heroin. The total quantity of Heroin seized was 8.16 grams.
10. I have perused the statements of the witnesses recorded by the Investigating Officer [I.O.] of the case during the course of investigation. I have also perused the statements of the accused persons recorded under Section 161, CrPC. From the statements of the witnesses including the seizure witnesses, it is demonstrated that the entire quantity of Heroin weighing 8.16 grams was seized from the possession of the other co-accused, Smti. Jyoti Doley. Entry no. 56 of the Table appended to the NDPS Act, 1985 mentions 'Heroin' and as per the said Entry, a quantity upto 5 grams of Heroin falls under small quantity and a quantity above 250 grams of Heroin falls under the commercial quantity. Thus, a quantity of 8.16 grams of Heroin is above the small quantity and below the commercial quantity. As per the provisions of Section 20(b)(ii)(B) of the NDPS Act, a person found guilty of the said offence is liable to undergo rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. Section 29 of the NDPS Act, 1985 has provided for the punishment of abatement and criminal conspiracy.
11. In respect of the offence under Section 22(b)(ii)(B) of the NDPS Act, the rigours of Section 37 of the NDPS Act, 1985 are not attracted. None of the seizure witnesses or other witnesses had made any mention about the accused-petitioner. It is only in the statement of the other co- accused, Smti. Jyoti Doley the name of the accused-petitioner had figured. Smti. Jyoti Doley had stated that she purchased the quantity Heroin from the accused-petitioner. In the statement of the accused-petitioner recorded under Section 161, CrPC, the accused-petitioner stated to have admitted about handing over the Heroin to the other co-accused, Smti. Jyoti Doley. From the materials available in the case record, collected during the course of investigation, it did not indicate that any other incriminating materials or contraband substance was recovered either from the personal possession of the accused-petitioner or from inside the premises/dwelling house of the accused-petitioner where search operation was carried out. A mention was, however, made in the case record about arrest of the accused-petitioner in connection with Bihpuria Police Page No. 5/7 Station Case no. 295/2020 registered under Sections 21(a)/21(b) of the NDPS Act, 1985 but without any further details regarding the exact nature of involvement in the said crime.
12. The Court is conscious of the fact that the clandestine business in narcotic drugs and psychotropic substances is usually carried out in an organized and secretive manner. The offences under the NDPS Act, 1985 are serious in nature as it affects the whole society and it is in that view of the matter, provisions have been incorporated the Act for periods of custody of a person accused of certain offences under the Act which are longer than the periods provided in the CrPC. The purpose of interrogation of a person suspected of such offence is to elicit useful informations and materials so as to give the opportunity to the investigating authority to direct its investigation in the right directions in a meaningful manner.
13. Section 25 of the Evidence Act is specific to the effect that no confession made to a police officer shall be proved as against a person accused of any offence. The NDPS Act, 1985 does not contain any provision which overrides Section 25 of the Evidence Act. The Hon'ble Supreme Court of India in Criminal Appeal no. 152/2013 [ Tofan Singh vs. State of Tamil Nadu], decided on 29.10.2020 and reported in [2013] 16 SCC 31, has observed that to arrive at the conclusion that a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, 1985 without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the Constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India. In the said decision, it has been amply made clear, by the majority view, that any confessional statement made to police officers would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
14. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, Page No. 6/7 of course, of justice being thwarted by grant of bail. It is no doubt true that while considering an application for bail the aspect of personal liberty of the accused is also to be considered. But at the same time, the interest of free and fair trial of the case, more particularly, when it pertains to an offence of heinous nature is also to be looked into. The discretion vested in the Court for grant of bail or otherwise has to be exercised in a judicious manner and not as a matter of course.
15. Reverting back to the facts of the case in hand and the materials available in the case record/case diary, it is noticed that the only materials appear to be available in the case record/case diary against the accused-petitioner are the statement of the other co-accused, Smti. Jyoti Doley and the inculpatory statement of the accused-petitioner recorded under Section 161, CrPC in custody. Having regard to the above materials and in view of the afore-stated position of law and the discussion made above, this Court is satisfied that there are reasonable grounds to believe that these accused-petitioner may ultimately be acquitted of the offences under Sections 22(b)/29 of the NDPS Act, 1985. Any further incarceration of the accused-petitioners in anticipation of positive evidence does not appear to be justified, when the investigation of the case had already been completed. In such view of the matter, this Court is of the considered view that further incarceration of the accused-petitioner during the course of the trial is not necessary. The matter of grant of bail of the accused-petitioner, however, calls for imposition of appropriate conditions in view of the fact that the charges have already been framed.
16. Accordingly, the accused-petitioner is allowed to be enlarged on bail on furnishing a bail bond of Rs. 50,000/- with two local sureties of Rs. 50,000/- to the satisfaction of the learned Special Judge, Lakhimpur at North Lakhimpur, Assam, subject to the following conditions :
[1] The accused-petitioner shall furnish his local address and mobile number[s] along with proof before the learned Special Judge, Lakhimpur, at North Lakhimpur, Assam;
[2] The accused-petitioner shall not leave the territorial jurisdiction of the learned Special Judge, Lakhimpur at North Lakhimpur, Assam without prior permission from the said Court;
[3] The accused-petitioner shall appear on each and every date of the trial till the conclusion of the trial;
[4] The accused-petitioner shall not directly or indirectly, make any inducement, Page No. 7/7 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; [5] The accused-petitioner shall not play mischief with the evidence collected; [6] The accused-petitioner shall maintain law and order and he shall not commit an offence similar to the offence of which he is accused, or of the commission of which he is suspected; and [7] In the event of breach of any of the conditions, the Special Judge, Lakhimpur at North Lakhimpur, Assam shall be at liberty to cancel his bail without any reference to this Court.
17. It is, however, made clear that the observations made above are only for consideration of the accused-petitioner's prayer for bail and none of the observations made in this order shall have any bearing in the ensuing trial of the accused-petitioner.
18. The application stand disposed of in the aforesaid terms.
JUDGE Comparing Assistant