Rekha Gogoi And 2 Ors vs State Of Assam

Because of COVID Pandemic situation, the Court proceedings are conducted through Video Conferencing.

Heard Mr. Z. Rahman along with Mr. B. Khakhlari, learned counsels for the accused-petitioners and Mr. R.J. Baruah, learned Addl. Public

Prosecutor for the State.

This bail application has been filed by the petitioners, namely, 1. Rekha Gogoi, 2. Alok Gogoi and 3. Sanjay Gogoi seeking bail as they have been

arrested in connection with Basistha P.S. Case No. 1902/2020 under Section 21(c)/29 of the NDPS Act.

An FIR dated 29.12.2020 was lodged by one Sri Rana Bhuyan, SI, Jorabat Police Outpost under Basistha Police Station regarding recovery of 72

packets containing 12.18 gms of powder in each packet suspected to be narcotic drugs kept in soap boxes and concealed underground in a room in the

compound of the petitioner No. 1- Smti Rekha Gogoi. During the search, 4 (four) persons along with Smti Rekha Gogoi found in the room were taken

into custody. The packets seized were weighed at the place of occurrence with departmental weighing apparatus and it was found that the total

weight of the seized contraband of 72 packets is 876.96 gms. An amount of Rs. 18,500/- in cash, suspected to be proceeds of the sale of contraband

was also seized along with 5 (five) numbers of mobile handsets. Three samples of the seized contraband goods were made as per procedure under

NDPS Act and sent for FSL report. It is also stated in the FIR that during the search operation, one Prem Gogoi managed to flee away from the place

of occurrence. It is stated in the FIR that the present accused-petitioners along with two other persons, namely Akbar Khan and Md. Wahidur were

arrested.

The learned counsel for the accused-petitioners submits that the petitioners No. 2 & 3 are the sons of petitioner No. 1. Petitioner No. 1 runs a

grocery store in Jorabat and petitioner No. 3 assists her in running the shop. The petitioners No. 1 & 3 lived in the same house in the same compound.

Petitioner No. 3 lived in the same village but in a different compound/house. The petitioner No. 1 has another son namely, Prem Gogoi, (who

absconded) who resides in a separate house but within the same compound.

The learned counsel for the accused-petitioners submits that the petitioners are innocent and are not connected at all with the alleged narcotics

stated to have been recovered from the compound of the petitioner No. 1. The learned counsel for the accused-petitioners submits that the alleged

contraband goods were not recovered for the dwelling house of the petitioner Nos. 1, 2 & 3 as is revealed from the perusal of the FIR. The learned

counsel for the accused-petitioners submits that it cannot be said that the alleged contraband goods were recovered from the conscious possession of

the petitioner Nos. 1, 2 & 3. Further the case projected by the learned counsel for the accused-petitioners is that the petitioners were all arrested on

29.12.2020 and have been remanded on the same date by the learned CJM, Kamrup (M), Guwahati and since then they have been in custody. The

learned counsel for the accused-petitioners submits that the mandatory period for detention for offences under Section 21(c) read with Section 29 of

the NDPS Act as prescribed is 180 days. As on date, the accused-petitioners have already completed more than 180 days and charge-sheet till date

has been filed and therefore, they are entitled to be enlarged on bail as further detention for the purposes of investigation is not necessary.

The learned counsel for the accused-petitioners also submits that the learned Court of Sessions Judge, Kamrup (M) vide order dated 28.06.2021

had enlarged on bail of two (2) co-accused namely, Md. Akbar Khan and Md. Wahidur, who were also arrested in connection with the aforesaid

case. The said orders were passed in B.A. No. 96/2021 and B.A. No. 158/2021 respectively.

The learned Addl. Public Prosecutor for the State has produced the case diary and has raised his objections to the grant of bail of the accused-

petitioners. The learned Addl. Public Prosecutor submits that the matter is still under investigation and the case diary reveals that two (2) other co-

accused persons, namely Prem Gogoi and Amar Khan, who are connected to the present case, have not been traced out by the Investigating Officer

inspite of several attempts. As per the case diary, the accused Prem Gogoi and Amar Khan have not yet been apprehended in spite of efforts putting

by the I.O. Considering the above, the learned Addl. Public Prosecutor submits that enlargement of bail at this state to the accused-petitioners will

hamper the further investigation of the case.

I have heard the learned counsels for the parties. The case diary presented has also been duly perused.

Perusal of the case diary reveals that the contraband items/goods seized from the compound of the petitioner No. 1 is found to be 12.18 gms

contained in 72 packets. As per the table contained in the notification vide S.O. No. 1055(E), dated 19th October, 2001 specifying small quantity and

commercial quantity, it is found that the commercial quantity for heroin is 250 gms. As per the findings in the FSL report as referred to in the case

diary, the seized contraband items have tested positive for heroin. The case diary further reveals that the total weight of the seized contraband is

876.96 gms. As such, it is seen that the contraband items/goods seized from the compound of the petitioner No. 1 and which is stated to have been

found buried in a room within the compound of petitioner No. 1 is well above the minimum quantity specified for commercial quantity in the

aforementioned notification in so far as the heroin is concerned.

It is seen that the accused-petitioners were arrested on 29.12.2020 and produced before the CJM, Kamrup(M), Guwahati, who remanded them to

custody on 30.12.2020. Subsequently, bail petition was preferred before the Special Judge, Kamrup(M), Guwahati, which was also rejected on

20.02.2021. However, inspite of the accused-petitioners being remanded to custody and inspite of recovery of contraband Narcotics of Commercial

quantity weighing 876.96 gms, the Investigating Officer did not file any charge-sheet or any application seeking extension for further time for

investigation in connection with the aforesaid case. The learned Addl. Public Prosecutor fairly submits that the present status as regards the filing of

charge-sheet and/or extension of custody sought for if any is not available with him and therefore, he has no instructions thereon.

From the period of remand, it is seen that the accused-petitioners have been detained in custody beyond the mandatory period of 180 days as

specified under the NDPS Act. In terms of the law laid down in the case of Rakesh Paul Vs. State of Assam, reported in (2017) 15 SCC 67, the

rights of the petitioners for “default bail†or “compulsory bail†under Section 167(2) Cr.P.C had accrued on 30.06.2021 upon failure of the

Investigating Officer to file the charge-sheet or seek extension of time for completion of investigation within the mandatory period specified. In view

of the oral submissions made by the learned counsel for the accused-petitioners seeking default bail that they are willing to furnish the bail bond as

directed and abide by any such conditions as may be imposed by this Court, it is directed that each of the accused-petitioners, namely 1. Rekha Gogoi,

Alok Gogoi and 3. Sanjay Gogoi, shall be released from custody subject to furnishing a bail bond of Rs. 50,000/- (Rupees Fifty Thousand only) each

with two local sureties of like amount to the satisfaction of the learned Special Judge (NDPS Act), Kamrup(M), Guwahati, subject to the following

conditions:

(i) That the accused-petitioners will furnish proper Government approved/issued ID’s at the time of filing the bail bonds.

(ii) That the accused-petitioners shall appear before the Investigating Officer during the investigation of the case as well as before the Special Judge,

after filing of the charge-sheet as and when so directed.

(iii) That the accused-petitioners shall not change their residence without prior intimation from the Investigating Officer.

Accordingly, the instant bail petition stands allowed with the above observations.

Return the case diary.