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2018 DIGILAW 561 (CAL)

Ansar Ali v. State of West Bengal

2018-08-10

JOYMALYA BAGCHI, RAVI KRISHAN KAPUR

body2018
JUDGMENT : 1. It is submitted on behalf of the petitioner that he is in custody for 88 days and it is further submitted that he has been falsely implicated in the instant case out of political animosity. It is contended by the petitioner that he was a candidate in the Panchayet Election which was scheduled to be held on 14th of May, 2018. 2. It is further contended that on the night of 12th of May, 2018. I.C. Harirampur Police Station and Additional S.P. (Rural) along with other police officers illegally arrested and kept him in wrongful detention. As he was not produced before the jurisdictional Magistrate within 24 hours, the wife of the petitioner took out an application before the learned Magistrate on 15.05.2018 and the Magistrate directed I.C. Harirampur Police Station to submit report on 19th of May, 2018. 3. On the next day, the petitioner was produced before the Special Court on the accusation that he had been apprehended at Harirampur Bus Stand around 19.35 hours with two cartons of MKDYL Cough Syrup containing codeine mixture above commercial quantity. It is contended that the petitioner has been falsely implicated in the instant case as would appear from the fact that he had been illegally arrested on 12th May, 2018 as alleged in the aforesaid application preferred by his wife. 4. In order to clarify the aforesaid position, we had directed Investigating Officer of the case to be personally present in court. We have interviewed the said officer. 5. Learned counsel appearing for the State opposes the prayer for bail and submits that the search and seizure was conducted before independent witnesses who had duly signed on the seizure list and the labels attached to the seized articles. Statements of the seizure witnesses have also been recorded in the course of investigation. 6. We have given our anxious consideration to the rival versions of the parties. Ordinarily, in a case involving narcotic substance above commercial quantity it is the requirement of law as articulated in Section 37 of the NDPS Act that the petitioner must show (i) there are reasonable grounds to believe that he is not guilty of the alleged offence and (ii) he is not likely to commit any offence in future. No doubt, a heavy duty is cast on the petitioner to discharge such onus. No doubt, a heavy duty is cast on the petitioner to discharge such onus. However, if from the materials collected in the course of investigation, the allegations leveled against the petitioner appear to be so patently absurd and inherently improbable one may conclude that the onus on an accused has been duly discharged. 7. In State of Maharashtra v. Vishwanath Maranna Shetty, (2012) 10 SCC 561 , while dealing with section 21(4) of Maharashtra Control of Organised Crime Act, 1999 which is pari materia to section 37 of the NDPS Act, the Apex Court held though the words "reasonable grounds" are not defined, the expression must mean something more than "prima facie grounds". Hence, to obtain bail in cases involving narcotic substance above commercial quantity, the petitioner must demonstrate with reasonable certainty that he is not guilty of the alleged offence. 8. We have applied the aforesaid proposition to the factual matrix of the case. While the petitioner would like us to believe that he was illegally arrested on 12th May, 2018, it is the contention of the investigating agency that he was apprehended with the contraband on 15th May, 2018 around 19.35 hours at Harirampur Bus Stand. Either of the contentions may be true and it is only at the time of assessment of evidence during trial, the veracity of the rival versions may be conclusively decided. However, when a serious challenge is thrown to the facts leading to the arrest and recovery from an accused in the manner and circumstances as alleged by the prosecution, it is the duty of the Court particularly in the light of the statutory restrictions under Section 32 of the NDPS Act, to examine whether such challenge renders the materials collected during investigation so unreliable that it gives rise to reasonable grounds that the prosecution case is a false one. 9. Having considered the materials on record particularly the seizure list, labels, memo of arrest in the instant case, we find gross inconsistencies and/or contradictions in the said documents. Although it is claimed that the seizure was witnessed by independent witnesses, namely, Masidul Rahaman, Jayanta Sarkar and Nabin and their signatures purportedly appear on the seizure memo and labels on the seized articles, it is significant to note that no signature of a relation or a respectable member of the locality is affixed to the arrest memo of the petitioner. 10. 10. In fact, in the arrest memo under the column titled "Relation or respectable member of the locality" it is recorded "no one turned up" It is inexplicable when the aforesaid local people agreed to witness the search and recovery of narcotic substance from the petitioner, why they declined to sign on the arrest memo. Signature on the arrest memo of a relation or respectable member of the locality is a requirement which stems from the mandate of the Apex Court in the case of D.K. Basu v. State of West Bengal, AIR 1997 SC 610 . It is not an empty formality and the presence of such signature gives a stamp of authenticity to the lawful apprehension of the accused at the place and time as stated therein. Absence of signature in the arrest memo of a respectable member of the locality particularly when it is alleged that apprehension and recovery from the petitioner was at a public place in presence of independent witnesses gives rise to reasonable grounds that the arrest of the petitioner may not have occurred in the manner as alleged by the prosecution leading credence to the petitioner's plea of prior arrest and wrongful detention. 11. It is also interesting to note that the statements of the so-called search witnesses were not recorded on the day of seizure or soon thereafter. One and half months after the incident their statements have been recorded. On the other hand, statements of certain witnesses were recorded on the date of seizure whose signatures, however, are noticeably absent in the seizure memo, arrest memo or labels prepared contemporaneously at the time of search and seizure. 12. In spite of repeated queries, Investigating Officer was unable to explain these glaring lacunae in the prosecution case which go to its root and provide reasonable grounds to believe that the same may be false and fabricated. 13. Hence, we are inclined to hold that the petitioner has been able to rebut the statutory restrictions for grant of bail under Section 37 of the NDPS Act. In the light of the aforesaid findings and the period of detention suffered by the petitioner, we are inclined to grant bail to him. 14. Accordingly, we direct that the petitioner shall be released on bail upon furnishing a bond of Rs. In the light of the aforesaid findings and the period of detention suffered by the petitioner, we are inclined to grant bail to him. 14. Accordingly, we direct that the petitioner shall be released on bail upon furnishing a bond of Rs. 50,000/-(Rupees Fifty Thousand only) with two sureties of like amount each, one of whom shall be local, to the satisfaction of the learned Judge, Special Court under the NDPS Act at Balurghat, Dakshin Dinajpur on condition that he shall appear before the trial court on every date of hearing and shall not intimidate witnesses nor tamper with evidence in any manner whatsoever nor commit similar offences in future and on further condition that he shall not leave the jurisdiction of Harirampur Police Station except for the purposes of investigation and attending court proceedings and shall report to the Officer in charge of the said police station once a week until further orders. 15. In the event the petitioner fails to appear before the trial court, the trial court shall be at liberty to cancel his bail without further reference to this Court. 16. Presence of Investigating Officer is noted and dispensed with. 17. The application for bail is, accordingly, allowed. 18. We hasten to add that the aforesaid findings are for the purpose of disposal of this application and shall have no bearing at the subsequent stage of the proceeding which shall be decided independently on the basis of the evidence adduced and in accordance with law, without being swayed by the aforesaid findings. 19. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.