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2022 DIGILAW 39 (TRI)

Shantanu Mandal v. State of Tripura

2022-01-31

T.AMARNATH GOUD

body2022
JUDGMENT 1. Heard Mr. S. Lodh, counsel for the petitioner as well as Mr. R. Datta, learned PP for the respondent. 2. This is a petition under Section 482 of CrPC for quashing/setting aside the impugned order dated 23.11.2021 passed by the Special Judge, Gomati District, Udaipur in Special 20 of 2021 (NDPS) whereby Special Judge cancelled the Bail Order dated 04.09.2021 granted in favour of the petitioner and thereafter release the petitioner on bail in terms of the order dated 04.09.2021. 3. It is the case of the petitioner that he has been wrongly and unlawfully arrayed in a criminal case. He stated in his petition that he was arrested in connection with Case No.2021/RKP/090 dated 07.06.2021 under Section 22(C),25, 27(A) & 29 of NDPS Act. Thereafter, while the investigation was being carried on, the petitioner made several attempts for bail applications. On 04.09.2021, according to the petitioner a bail application was moved on his behalf before the Ld. Special Judge, and after hearing the parties vide order dated 04.09.2021 the Special Judge granted bail to the petitioner with a condition that he should submit a bail bond of Rs.1,00,000/- (Rupees one lakh) only with 2(two( sureties of like amount, and one of the sureties must be a government Employee, and both the sureties should be a Government employee, and both the sureties should be the permanent residents of Tripura. 4. It has been stated by the petitioner in his petition that initially he could not get to submit the bail bond as he did not get any bailer. Subsequently, on 21.09.2021 the bail bond was submitted before the judge concerned but Ld. Special Judge refused to accept the bail bond on the ground that the identity of the petitioner is doubtful. 5. On 21.09.2021 rejecting the bail bond given on behalf of the accused the Special Judge has observed that there is a strong doubt about the name and address of the accused inasmuch as two names of him have transpired as per the record i.e. Santunu Mandal as well as Rabiul Hassan Sani. One address is at West Bengal and other address is at Bangladesh and the third address is at Chanban, Udaipur, Tripura. One address is at West Bengal and other address is at Bangladesh and the third address is at Chanban, Udaipur, Tripura. In this situation if we release him accepting the bail bond a huge uncertainty will remain as to his whereabouts so as to bring him before the court during the trial of the case and ultimately the case will drag on this account and the cause of justice will suffer. 6. Aggrieved by the order dated 21.09.2021, the petitioner in due course of time preferred a Criminal Revision Petition being Crl.Rev.Ptn 51 of 2021 challenging the order dated 21.09.2021 in R.K Pur P/S case No. 90 of 2021 in this High Court. The High Court after perusing the matter has allowed the petition by the order dated 15.11.2021 (Annexure-4 to the petition) stating that the benefit of bail should be extended to the accused as the learned Special Judge has granted bail to the accused after consideration of his case on merit. 7. The matter before the Special Judge, Gomati District, Udaipur was again heard on 23.11.20231 on a petition being filed by the state under Section 439(2) of CrPC for cancellation of bail order dated 04.09.2021 granted by the same court in favour of the present accused-petitioner. The said court while re-examining the facts as advanced by the learned PP for the state has observed as follows: 'The provision of Section 439(2), CrPC does not say clearly that the order by which an accused has been granted bail, cannot be cancelled irrespective of whether he has been released pursuant to the bail order or is still in custody for having failed to furnish bail bond. That option remains open to the discretion of the Court. In the light of the above, the prayer of the Ld.PP under Section 439(2) of CrPC for cancellation of the bail of the accused Santanu Mandal is hereby allowed and the bail that was granted to the accused by order of this Court dated 04.09.2021 is hereby cancelled.' 8. Aggrieved by the order dated 23.11.2021, the petitioner has preferred this instant criminal petition quashing the impugned order dated 23.11.2021 where the District Judge-cum-Special Judge has cancelled the bail order dated 04.09.2021 granted by the same court in favour of the accused Santunu Mandal. Aggrieved by the order dated 23.11.2021, the petitioner has preferred this instant criminal petition quashing the impugned order dated 23.11.2021 where the District Judge-cum-Special Judge has cancelled the bail order dated 04.09.2021 granted by the same court in favour of the accused Santunu Mandal. The counsel for the petitioner submits that the court below which is having jurisdiction as the Special Judge and the court which is concerned with the bail application is one and same. He further submits that it is against the Section 439 of CrPC in cancellation of bail application. 9. The counsel for the petitioner has relied on a apex court judgment in Abdul Basit alias Raju and Others v. Mohd. Abdul Kadir Chaudhary and another reported in (2014) 10 SCC 754 where the apex court has observed in the following manner: '19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decision would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court. 20. In the instant case, the respondents herein had filed the criminal miscellaneous petition before the High Court seeking cancellation of bail on grounds that the bail was obtained by the petitioners herein by gross misrepresentation of facts, misleading the court and indulging in fraud. Thus, the petition challenged the legality of the grant of bail and required the bail order to be set aside on ground of it being perverse in law. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on ground of it being perverse in law. 26. In the instant case, the order for bail in the bail application preferred by the accused-petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Therefore, the High Court could not have entertained the said petition and cancelled the bail on ground of it being perverse in law. 26. In the instant case, the order for bail in the bail application preferred by the accused-petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court grating bail to the petitioner-accused. Even though the cancellation of bail rides on the satisfaction and discretion of the court under Section 439(2) of the Code, it does not vest the power of review in the court which granted bail. Even in the light of fact of misrepresentation by the petitioner-accused during the grant of bail, the High Court could not have entertained the respondent/informant's prayer by sitting in review of its judgment by entertaining miscellaneous petition. 10. On the other hand, the learned PP appearing for the state submits that the petitioner accused is involved series of criminal activities under Narcotic drugs along with one Roshan Ali alias Rejaul Karim and it has been learnt that Roshal Ali is involved in as many as 17 cases in Bangladesh and presently he is in their judicial custody in Bangladesh. The relevant portion of the report as submitted by the Superintendent of Police, Gomati District, Udaipur is extracted below showing the multiple criminal cases registered in several Police Stations in Bangladesh against Roshan Ali with whom the petitioner is actively involved in Narcotics supplies and they both are roommates in Agarala, Tripura. 1. (2QHIQ) FIR of ComillaSadarDakshin PS - 5/293, Dated 03 July 2018 under Section- 143/341/323/324/326/307/379/427 Penal Code-1860 2. (2DBS) FIR of ComillaSadarDakshin PS-49, Dated 26 May 2012 Under Section 341/302/34 Penal Code 1860. 3. (9L9N) FIR of ComillaSadarDakshin PS-53 Dated 22 April 2010 Under Section- 25B of The Special Power Act of Bangladesh 1974. 4. (HWPR) FIR of ComillaSadarDakshin PS-44, Dated 20 May 2008 under section-25 B 1 (B) of The Special Power Act of Bangladesh 1974. 5. (1SPMT) FIR of CommillaSadarDakshin PS-46/591 Dated 27 November 2018 Under Section -302/34 of Penal Code 1860. 6. (2N4WY) FIR of CommillaSadarDakshin PS-19/531 Dated 13 October 2017 Under Section 302/201/34 Penal Code 1860. 7. 4. (HWPR) FIR of ComillaSadarDakshin PS-44, Dated 20 May 2008 under section-25 B 1 (B) of The Special Power Act of Bangladesh 1974. 5. (1SPMT) FIR of CommillaSadarDakshin PS-46/591 Dated 27 November 2018 Under Section -302/34 of Penal Code 1860. 6. (2N4WY) FIR of CommillaSadarDakshin PS-19/531 Dated 13 October 2017 Under Section 302/201/34 Penal Code 1860. 7. (B52Y) FIR of ComillaKotowali Model PS - 44 Dated 14 January 2013 Under Section 19(a) of the Arms Act 1878. 8. (8ESG) FIR of ComillaSadarDakshin PS-45 Dated 19 August 2012 Under Section 143/447/448/385/323/427/379/380/34 of Penal Code 1860. 9. (8E2M) FIR of ComillaSadarDakshin PS-46 Dated 19 August 2012 Under Section 19(a) of The Arms Act 1878. 10. (2GNI) FIR of ComillaSadarDakshin PS-43 Dated 22 March 2011 Under Section-143/341/323/324/307/379/506 Penal Code 1860. 11. (275JD) FIR of ComillaKotowali Model PS-34 Dated 11 December 2015 under Section-19(1) 9(b)/25 of the Narcotics Control Act 1990. 12. (26MDH) FIR of ComillaSadarDakshin PS-52 Dated 30 January 2016 under Section-342/323/379/307/386/506/34 Penal Code. 13. (2U8S6) FIR of ComillaSadarDakshin PS-11/11 Dated 08 January 2018 under Section-143/448/323/325/307/427/379/506 Penal Code 1860. 14. (2LBLF) FIR of ComillaKotowali Model PS-101/210 Dated 23 February 2017 Under Section 19(a)/19(f) of the Arms Act 1878. 15. (2E6RF) FIR of ComillaSadarDakshin PS-52/242 Dated 17 May 2017 under Section-341/448/323/380/384/420/506 Penal Code 1860. 16. (2KB63) FIR of ComillaSadarDakshin PS-12 Dated 08 October 2006 under Section-143/341/307/323/324/326/379 Penal Code 1860. 17. (XKM7) FIR of ComillaKotowali Model PS-01 Dated 30 September 2014 Under Section-399/402 Penal Code 1860. 11. In order to buttress his contention, learned PP has relied on a decision of apex court in Gurcharan Singh and Others v. State (Delhi Administrtion) reported in (1978) 1 SCC 118 where the apex court has opined as follows: 16. Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under Section 498, Cr. P.C. of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439 (2) of the new Code, the High Court or the Court of Session may direct any person who has been released oil bail to be arrested and committed to custody. Similarly under Section 439 (2) of the new Code, the High Court or the Court of Session may direct any person who has been released oil bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other Words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that leave copied up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.' 12. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.' 12. Further, he submits that the accused petitioner is also an active drug supplier and co-resident of Rejaul Karim and both reside in same house in Agartala, Tripura. He also submits that steps are in progress to bring Rejaul Karim back from Bangladesh to Tripura. In support of his contention learned PP has filed a report which has already been stated above and the said report is taken in record. In continuance of his submission, learned PP has further contended that in pursuance of the Notification issued by the Government of Tripura, Law Department, Secretariat, Agartala Government dated 26.07.2011 stating that the crime under Section 36A(4) of NDPS Act Special Judge and the District Judge who cancels the bail application under Section 439 both are different, though the person is same. But the capacity in which he dealt with the matter is in accordance with law. For ready reference Section 36A(4) of the NDPS Act is reproduced hereunder: 36A(4) In respect of persons accused of an offence punishable under Section 19 of section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure 1973(2 of 1974), thereof to 'ninety days', where they occur, shall be construed as reference to 'one hundred and eighty days'. Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reason for the detention of the accused beyond the said period of one hundred and eighty days. The trial court while granting bail observed that since chargesheet is not filed in 90 days as per Section 36 of NDPS Act bail has been granted. But the fact remains is that the time prescribed is 180 days. Therefore, the bail granted on erroneous ground. 13. The relevant portion of the notification dated 26.07.2011 is reproduced herein below: Sl No. Judicial Officers with Grade Designated as Section of the Law under which or for the purpose of which, so designated. Limits of jurisdiction (1) (2) (3) (4) (5) 02. All Judicial Officers of Grade-I (District & Sessions Judges Addl. 13. The relevant portion of the notification dated 26.07.2011 is reproduced herein below: Sl No. Judicial Officers with Grade Designated as Section of the Law under which or for the purpose of which, so designated. Limits of jurisdiction (1) (2) (3) (4) (5) 02. All Judicial Officers of Grade-I (District & Sessions Judges Addl. District & Sessions Judges) of Tripura Judicial Service Special Judge under The Narcotic Drugs & Psychotropic Substances Act 1985 (Central Act No.61 of 1985). Section 36(2) of The Narcotic Drugs & Psychotropic Substances Act, 1985 (Central Act No. 61 of 1985). Shall depend on the place of posting or as may be specified by the Hon'ble High Court at the time of posting of such officers and also as specified in this Department's Notification of even No. dated 23.06.2011 under Section 36(1) of the Act. 14. It transpires from the record that the investigation is also complete and the Charge sheet has also been filed on 08.11.2021. In view of the changing circumstances and in view of the series of crime, the involvement of the petitioner-accused cannot be dealt on technical reason and the impugned order passed by the trial court cannot be set aside. It is the duty of the judiciary to look into the broader aspect prevailing circumstances and to control the crime against the society. Since the accused persons are habitual offenders and there is every possibility of removal of evidence and influencing the witness. 15. Having taken cognizance of the instant case in hand, at the juncture, this court finds it apposite to refer to the Article 21 of the Constitution of India which provides as follows:- '21. Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law' 16. In view of the serious allegation made against the accused person and prima facie as it is established that they are habitual offenders and deals with narcotic drugs, this court finds that the right to life and liberty of citizen is more important than the rights enunciated for the petitioner under Section 439(2) CrPC. With regard to the granting bail or not or cancellation, it is discretion of the court under the relevant circumstances. With regard to the granting bail or not or cancellation, it is discretion of the court under the relevant circumstances. Benefit to an accused under Section 439(2) of the CrPC cannot have an overriding effect upon the life & health of our innocent citizen under Article 21 of the Constitution of India as the accused persons dealing in Narcotics drugs cannot be equated with an innocent citizen at whose life and health & family disturbance the accused person become rich and rich. 17. In the interest of public at large to curb the narcotic drugs in the society and the citizen should be given proper protection by state. It also forms part of the responsibility of state to keep away citizens from drugs and prevent drug supplies, consumption and further protect from such accused persons dealing in narcotic drugs. Under Article 21, Life and Liberty of a citizen is paramount & stands on high pedestal than the technicality under Section 439 (2) of CrPC. This court finds no fault with the order passed by the court below. 18. Accordingly, this criminal petition stands dismissed conforming the order dated 23.11.2021 of the lower court.