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2016 DIGILAW 45 (TRI)

Khalek Miah v. Sankar Debnath

2016-02-19

DEEPAK GUPTA

body2016
JUDGMENT : This petition for grant of bail has been filed by the petitioner Khalek Miah on behalf of 5(five) accused persons namely Sri Sankar Debnath, Sri Sanjit Das, Sri Pradip Debnath, Sri Mithu Debnath and Md. Abdul Hannan Miah in respect of P.R. Bari P.S. Case No.04 of 2016 registered against the accused persons under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”). 2. The prosecution story, briefly stated, is that on the night intervening 17.01.2016 and 18.01.2016 S.I. Suman Deb along with the support staff went out from the P.R. Bari Police Station for mobile patrolling and conducted anti-smuggling raids. When they reached near Dimatali, they received information from a secret source that accused Abdul Hannan Miah had entered his house with some jute bags containing contraband goods like ganja etc. Thereafter, a party was formed and raid was conducted in the house of Abdul Hannan Miah. According to S.I. Suman Deb because the house of accused Abdul Hannan Miah is close to Indo-Bangladesh border and because it was late at night, it was not possible to arrange other witnesses or to wait for order from the Magistrate to carry out the search after sunset and before sunrise and, therefore, he recorded his reasons in writing in this regard and entered along with his staff into the house of Abdul Hannan Miah. 3. Admittedly, Abdul Hannan Miah was not found in the building. The 4(four) other accused persons namely Sri Sankar Debnath, Sri Sanjit Das, Sri Pradip Debnath and Sri Mithu Debnath were found in the house. According to the police, they were all unpacking and repacking the ganja. On weighment the contraband ganja was found to be about 70 Kgs. Some samples were taken at the spot and thereafter, the case was registered. 4. Mr. P.K. Biswas, learned Sr. Counsel appearing for the accused persons, has raised various grounds including the ground that sampling is not proper and that Section 52 of the NDPS Act has not been complied with. 5. I am not going into the other grounds because they are not mandatory grounds. His main submission is that Section 42 of the NDPS Act which is mandatory in nature has not been complied with. Section 42 authorizes any officer of the specified rank to enter, search, seize and arrest without authority or authorization. 5. I am not going into the other grounds because they are not mandatory grounds. His main submission is that Section 42 of the NDPS Act which is mandatory in nature has not been complied with. Section 42 authorizes any officer of the specified rank to enter, search, seize and arrest without authority or authorization. Under Section 42(1) such raid can be carried out on the basis of information taken down in writing any time between sunrise and sunset. What this implies is that if the raid has to be carried out after sunset and before sunrise, then search warrant has to be obtained from the Magistrate. However, the second proviso to Section 42(1) reads as follows:- “Provided further that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.” Therefore, if the officer conducting the raid has reason to believe that in case, he waits for obtaining a search warrant or authorization, then the accused will have an opportunity of either concealing the evidence or escaping from the place, then even after sunset and before sunrise the officer can enter building or enclosed place after recording the grounds of his belief. 6. However, the statute provides a safeguard and that safeguard is in Section 42(2) which reads as follows:- “42(2). Where an officer taken down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” A bare perusal of Section 42(2) shows that when the information is taken down in writing and the officer records the grounds for his belief for carrying out the raid after sunset and before sunrise, then within 72 hours he must send a copy thereof to his immediate official superior. 7. It is the case of Sri Biswas that this has not been complied with in the present case. According to Sri R.C. Debnath, learned Addl. 7. It is the case of Sri Biswas that this has not been complied with in the present case. According to Sri R.C. Debnath, learned Addl. P.P., the case diary shows that Sri Suman Deb, S.I. had, in fact, informed the S.P., South, Belonia over mobile phone immediately after returning at P.S. The last portion of the case diary reads as follows:- “Note: The matter already informed to SP(S) Belonia over Mobile Phone immediately after returned at PS. (Contd.)” I had put a specific question to Mr. R.C. Debnath, learned Addl. P.P. where is the next page of the case diary. He on instructions received from the I.O. Bimal Baidya states that there is no other page and the case diary is closed and the word “Contd.” is wrongly written. I am prima facie unable to accept this because the last note reads that the matter has been informed to the S.P., (S), Belonia over mobile phone immediately after returned at P.S. The word “Contd.” has been specifically written at the bottom and, therefore, it is not possible for me to believe that there is no other page of the case diary. 8. While dealing with criminal cases in the State, I have found that the case diaries are not being maintained as per the Police Regulations of Bengal, 1943 as applicable to the State of Tripura. Regulations 263 and 264 deal with case diaries and regulation 264(e) reads as follows:- “264(e). Each form shall have a separate printed number running consecutively throughout the book so that no two forms shall bear the same number. On the conclusion of an investigation the sheets of the original diary shall be removed from the book and filed together. Every file shall be docketed with the number, month and year of the first information report, the final form submitted, and the name of the complainant, the accused, and the investigating officer. The orders regarding preservation and destruction of these papers shall also be noted.” Therefore, each form of a case diary is required to have a separate printed number running consecutively throughout the book. In many states, the practice is that the case diary has 100 forms in a book each bearing a separate number and there are 2 or 3 pages attached to each numbered page on which carbon copies can be prepared. In many states, the practice is that the case diary has 100 forms in a book each bearing a separate number and there are 2 or 3 pages attached to each numbered page on which carbon copies can be prepared. Whenever any page from the case diary is removed to make it part of the challan or the investigation of a particular case, then the same is entered in a register. In Tripura, I have found a totally unhealthy and unholy practice where there is no numbering of the case diary at all. This will permit any police officer to change any case diary at any time. That cannot be permitted. Therefore, a direction is given to the Chief Secretary, State of Tripura as well as the Director General of Police, State of Tripura to ensure that on or with effect from 01.4.2016 all the case diaries which are supplied to the Police Stations should have consecutive numbers as in the requirement of law and in case, this is not done, then obvious consequences will follow. 9. As far as the present case is concerned, there is apparent violation of Section 42(2) of the NDPS Act and, therefore, following the law laid down by the Apex Court in Sarija Banu alias Janarthani alias Janani and another v. State through Inspector of Police, [ (2004) 12 SCC 266 ], I am compelled to grant bail to the accused persons on the following terms and conditions. 10. Therefore, I direct that accused Md. 10. Therefore, I direct that accused Md. Abdul Hannan Miah be enlarged on bail on his furnishing bail bond in the sum of Rs.1,00,000/- (rupees one lakh) with two sureties each in the like amount to the satisfaction of the learned trial Court and the other accused persons namely Sri Sankar Debnath, Sri Sanjit Das, Sri Pradip Debnath, and Sri Mithu Debnath be also enlarged on bail on their furnishing bail bonds in the sum of Rs.25,000/- (rupees twenty five thousand) with two sureties each in the like amount to the satisfaction of the learned trial Court subject to the following conditions:- (i) That, the accused persons will all report to the concerned police station every Saturday at 9.30 a.m.; (ii) That, the accused persons are directed not to tamper with or in any manner influence the prosecution witnesses; (iii) That, the accused persons shall ensure that no threat directly or indirectly is given to any of the prosecution witnesses; (iv) The accused persons are further directed not to cause any hindrance in the investigation; (v) The accused persons shall not leave Tripura without permission of the appropriate Court; (vi) The accused persons shall appear before the trial Court on each and every date of hearing. In case, they absent themselves on any date, then the trial Court shall cancel the bail and the accused shall be arrested. Thereafter, the said persons shall have to approach this Court for grant of bail; (vii) In case, the accused persons violate any of the conditions or try to delay the trial, the prosecution shall be at liberty to apply for cancellation of bail. 11. Supply copy of the judgment to the petitioner as well as to the learned Addl. P.P. by tomorrow. 12. The bail application is disposed of in the aforesaid terms.