Hirendra Sinha vs State Of Assam

Heard Mr. D.K. Baidya, learned counsel for the petitioner. Also heard Mr. M Phukan, learned Public Prosecutor.

This is an application, filed under Section 439 of the Cr.PC. seeking bail of the accused-petitioner, namely, Hirendra Sinha, in connection with Latasil Police Station Case No. 282/2021, under Sections 188/120(B)/269/270 of the IPC read with Sections 20(a)/21(b)/25/29 of the Narcotic Drug Psychotropic Substances Act; Section 67 of the Information Technology Act, 2000 and Sections 4 and 5 of the Assam Bhang and Ganja Prohibition Act, 1958.

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 were searched after observing necessary legal formalities. While search was conducted in the house, the following 18 (eighteen) persons were found there:-

Sri Vikash Jain

Nassif Ahmed

Sri Sumit Kumar Beria

Sri Chayan Saikia

Sri Amit Pegu

Sri Amit Baruah

Sri Ashok Barman

Sri Hirendra Sinha

Sri Ridib Baruah

Sri Siddartha Barthakur

Smti. Bonamallika Choudhury

Sri Rakesh Bargohain

Smti. Debjani Hazarika

Smti. Jubee Baruah

Smti. Nayanika Baruah

Smti. Debarshi Beria

Smti. Nimisha Bhuyan, and

Sri Pankaj Kakoty

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 petitioner Vikash Jain, 3.61 grams of contraband cocaine was recovered and seized from the possession of one Sri Ashok Barman (at Sl. No. 7 above) which was kept concealed by him in a small black coloured pouched typed bag and also during such search, suspected cannabis amounting to 30 grams with a cannabis crusher were also recovered from the possession of one Sri Chayan Saikia (at Sl. No. 4 above). Both the contrabands were seized by two different seized lists.

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 the conscious possession of the contraband so seized.

Mr. Baidya, learned counsel for the petitioner, has submitted that the petitioner was an invitee to the birthday of co-accused Amit Baruah organized in the flat/premises of another co-accused Vikash Jain. He, being an invitee, attended the said birthday party and he did not have any knowledge about any contraband used/consumed there by anyone of the guests. He has further submitted that since, admittedly, Ashok Barman led to the recovery of the cocaine as concealed by him and as the cannabis were recovered from another co-accused Chayan Saikia, there is no question of possession of contraband by the petitioner, not to speak of conscious possession, at all. He has specifically referred to the two seizure lists annexed with the petition to establish the factum of possession of the contrabands. According to him, the seizure lists show that the contrabands, involved in this case, were recovered from co-accused Ashok Barman and Chayan Saikia, respectively.

Learned counsel for the petitioner has also submitted that co-accused Amit Pegu @ Amit K Pegu, was granted bail by this Court vide order dated 9.9.2021 in B.A. No.2006/2021. According to the learned senior counsel for the petitioner, the petitioner in the instant application is similarly situated with the aforesaid Amit Pegu @ Amit K Pegu and, therefore, he deserves to be granted bail, maintaining parity.

Mr. Phukan, learned Public Prosecutor, opposed the prayer for bail and has submitted that the petitioner was part of the commissions and omissions in the case, and therefore, his prayer for bail be rejected at this preliminary stage of investigation as there is still time to complete the investigation to collect further materials against him.

On perusal of the materials in the case diary, it is found that the present petitioner was an invitee to the birthday party, involved in this case and the basic allegation against him is in respect of consumption of the narcotic drugs and psychotropic substances. There is no evidence so far collected to specifically indicate his knowledge about procuring/using the contraband in the party. Learned Public Prosecutor, however, has taken the plea that the accused petitioner along with his co-accused were in conscious possession of the contraband seized in connection with this case, but the two seizure lists, involved in this case, are very specific to indicate that the suspected cocaine was seized from the possession of co-accused Ashok Barman, on being led by him, in a concealed state, and the ganja (cannabis) was recovered along with the crusher from another co-accused, Chayan Saikia. It appears from such seizure lists that there is categorical materials collected to indicate the persons in whose possession the contrabands were found.

On consideration of the materials in the case diary, as a whole, as well as the rival submissions made by the respective learned counsel for the parties, as indicated above, it appears to this Court that further custodial detention of the petitioner, in the interest of investigation of the case, is not necessary. This Court has also taken into account the background facts of the case while taking the view that further custodial detention of the petitioner is not necessary.

Therefore, the petitioner is granted bail. However, any observations made in this order is tentative and for the purpose of disposal of this bail application only and shall not be used for any other purpose, including in the trial of the case, if held.

Accordingly, the accused-petitioner, named above, shall be released on bail in connection with the abovementioned case on furnishing bail bond of Rs. 25,000/- with two suitable sureties of the like amount, to the satisfaction of jurisdictional learned Special Judge, under the NDPS Act.

The direction for bail is further subject to the conditions that the accused-petitioner:

(a) shall not leave the territorial jurisdiction of jurisdictional learned Special Judge, under the NDPS Act, without prior written permission from him;

(b) shall deposit his Passport/visa, etc if any, in the court of the learned jurisdictional Special Judge;

(c) shall not hamper with the investigation, or tamper with the evidence of the case;

(d) 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; and

(e) shall appear before the Investigating Police Officer once in a week until the entire investigation of the case is completed and as and when called by the Investigating Police Officer for the purpose of investigation of the case.

Return the case diary.

The petition stands disposed of accordingly.