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2022 DIGILAW 62 (TRI)

Priya Lal Halder v. State of Tripura

2022-02-09

S.G.CHATTOPADHYAY

body2022
JUDGMENT S.G. Chattopadhyay, J. - This bail application under section 439 Cr.P.C. has been filed for releasing the accused namely Priya Lal Halder on bail who has been undergoing imprisonment since 16.09.2021 in case No. Special (NDPS) 27 of 2019 under sections 21(c) and 29, NDPS Act, 1985. 2. Successive applications of the accused for pre arrest bail were rejected by this court by orders dated 16.07.2021 and the subsequent order dated 10.09.2021. Thereafter, he surrendered at the police station on 16.09.2021. He has been undergoing imprisonment since then. 3. Heard Mr. B. Deb, counsel appearing for the petitioner along with Mr. S. Rahman, learned advocate. Also heard Mr. R. Datta, learned P.P. appearing for the State respondent along with Mr. S. Debnath and Mr. S. Ghosh, learned Addl. Public Prosecutors. 4. The factual context of the case is as under: Mr. B. Debbarma, sub-inspector of police, Teliamura Police station lodged a suo moto FIR with the Officer-in-charge of Teliamura police station on 03.09.2019 alleging, inter alia, that on 02.09.2019 at around 0305 hours while he along with his accompanying staff was patrolling at National Highway-8, the vehicle bearing registration no. TR-01-AK-1572 was intercepted by his team at the area called Maiganga under Teliamura police station. The said vehicle was on its way from Silchar to Sonamura with vegetables loaded on it. Soon after the vehicle was stopped, driver of the said vehicle fled away. Search was carried out and huge quantity of contraband including 100 bottles of Phensedyl in a carton, 4375 bottles of Phensedyl of different batch in different cartons, 300 bottles of Escaf cough syrup etc. were recovered from inside the said vehicle which were hidden beneath the vegetables. The informant alleged that since the contraband was huge in quantity, it was not possible for a single accused to transport such goods. 5. Based on his FIR, the case was registered and investigation was taken up. 6. During investigation, accused Tajul Islam, husband of the owner of the offending vehicle surrendered at the police station who was granted default bail by the Special Court. 7. Mr. Deb, learned counsel appearing for the petitioner contends that the investigating agency has by this time laid charge sheet against the petitioner and therefore further detention of the petitioner would amount to pre trial detention which does not have the sanction of law. 7. Mr. Deb, learned counsel appearing for the petitioner contends that the investigating agency has by this time laid charge sheet against the petitioner and therefore further detention of the petitioner would amount to pre trial detention which does not have the sanction of law. Counsel urges that the informant police officer has categorically asserted in his FIR that after the offending vehicle was intercepted and caught by the police patrolling party, there was only one person inside the vehicle who fled away from the place of occurrence and his identity could not also be established. It is contended by learned counsel that at a later point of time, Tajul Islam who was admittedly the driver of the vehicle surrendered at the police station. Counsel contends that from such facts and circumstances, it can be easily gathered that other than the driver there was none inside the vehicle at the time of its detention by police. Counsel contends that the materials available on record do not also make out a case under the NDPS Act against the petitioner. Therefore, there is no justification of his detention in custody. It is also contended by Mr. Deb, learned counsel that investigation of the case having been over, accused may be released on bail. According to learned counsel, accused has a permanent place of abode within the jurisdiction of the trial court and there is no chance of his fleeing away from the place of trial. It is submitted that accused petitioner is ready to provide fit surety for his release on bail. Relying on the decision dated 20.08.2019 in Dhruba Manik Jamatia v. State of Tripura in AB No. 61 of 2018, counsel contends that in a case where no incriminating document/material has been seized from the possession of the accused and there is no material to indicate that accused in fact was a participant in the alleged offence, it would be improper to detain him in custody. The said decision in paragraphs 38, 39 and 40 contains the following observations of this High Court: '38. In Zafar Khan Wahid Khan v. Union of India, reported in 1993 Bombay Cr. C. 550, it was observed that Court that where it is an allegation that certain contrabands were concealed in a consignments the investigation must also indicate that the accused knew or had reasons to believe that the contraband was in that consignment. In Zafar Khan Wahid Khan v. Union of India, reported in 1993 Bombay Cr. C. 550, it was observed that Court that where it is an allegation that certain contrabands were concealed in a consignments the investigation must also indicate that the accused knew or had reasons to believe that the contraband was in that consignment. Even though the residence, godown etc., were raided, not a single incriminating document was seized, nor is there any material to indicate from the other investigation that this accused was, in fact, a participant in the case. It is for that reason, it would be improper to retain him in custody. Probability of repeating offence has to be deduced on tangible materials only. 39. Having scrutinized the police report, this Court is of the view that no tangible material is available which can link participation of the applicant in the offence. The persons who have been examined during the investigation were not the witnesses but they have stated what they have heard from the local people but without naming them. Not a single witness is there to show that the applicant had stored the contraband materials in that abandoned school room or he had brought that truck vehicle which was seized from a nearby road. One of the witnesses stated that sometimes he saw the applicant and his brother going to that abandoned room but no time and date to link him to those materials. Moreover, it appears that the mud walled school room is open and those are very important materials. 40. Having due regard to the rigorous conditions attached for granting bail, this court is of the view that no material is available which may help come inference, contrary to the reasonable ground of believing the petitioner not participatory on probability of his innocence. Thus, this Court is of the view that the petitioner has made out a case for allowing him to remain on pre-arrest bail, subject to conditions.' 8. Counsel has also relied on the decision dated 21.05.2021 of this High Court in BA No. 32 of 2021 where the accused charge sheeted under various sections of NDPS Act for illegal possession of dried ganja was given conditional bail in view of his prolonged detention. Counsel further contends that all other accused of this case have been enlarged on bail. Counsel further contends that all other accused of this case have been enlarged on bail. Having relied on the decision dated 15.02.2019 of this High Court in BA No. 4 of 2019 in the case of Smt. Soma Deb on behalf of accused person Sri. Babul Deb v. The State of Tripura counsel contends that in the said case the accused charged under the NDPS Act for illegal possession of phensedyl was granted bail by this court on various grounds including one of the grounds that all the co accused were already granted default bail. Counsel contends that the circumstances of this case are exactly similar and therefore the present accused also deserves release on bail. 9. Mr. R. Datta, learned P.P. appearing for the State along with Mr. S. Debnath and Mr. S. Ghosh, learned Addl. Public Prosecutors contend that NDPS Act is a special statute and section 37 of the Act has imposed heavy restrictions on bail to an accused charged under the said statute. It is contended by Mr. Datta, learned P.P. that for granting bail to the petitioner, the court must, on the basis of the record produced before it be satisfied that there are reasonable grounds for believing that the accused has not been guilty of the offence and that he is not likely to commit any offence while on bail. In support of his contention, counsel has relied on the judgment of this court in Haricharan Biswas v. State of Tripura & Ors. reported in (2018) 2 TLR 733. 10. Learned P.P. has also relied on the decision of the Apex Court in Union of India v. Rattan Mallik Alias Habul (2009) 2 SCC 624 wherein the Apex Court has observed that when a special statute makes a specific provision for dealing with matters arising thereunder, including an application for grant of bail, such provision cannot be ignored. Observation of this court is as under: '8. Having carefully gone through the impugned order, we are constrained to observe that while dealing with the application for bail, the learned Judge appears to have lost sight of the mandatory requirements of Section 37 of the NDPS Act and thus, the impugned order is clearly unsustainable. 9. Observation of this court is as under: '8. Having carefully gone through the impugned order, we are constrained to observe that while dealing with the application for bail, the learned Judge appears to have lost sight of the mandatory requirements of Section 37 of the NDPS Act and thus, the impugned order is clearly unsustainable. 9. The broad principles which should weigh with the court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court and, therefore, for the sake of brevity, we do not propose to reiterate the same. However, when a prosecution/conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such an application. 10. As already noted, in the present case, the respondent has been convicted and sentenced for the offences under the NDPS Act and therefore, while dealing with his application for grant of bail, in addition to the broad principles to be applied in prosecution for the offences under the Penal Code, 1860 the relevant provision in the said special statute in this regard had to be kept in view. 11. Section 37 of the NDPS Act, as substituted by Act 2 of 1989 with effect from 29-5-1989 with further amendment by Act 9 of 2001 reads as follows: '37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.' 12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on 'reasonable grounds'. 13. The expression 'reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charges with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari; 2 (2007) 7 SCC 798 : (2007) 3 SCC (Cri.) 505). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.' 11. Learned P.P. contends that section 37 NDPS Act is a mandate of the legislature which must be followed in letter and spirit. To buttress his contention counsel has relied on the decision of the Apex Court in State of Kerala & Ors. v. Rajesh and Ors. reported in (2020) 12 SCC 122 wherein the Apex Court has held as under: '17. To buttress his contention counsel has relied on the decision of the Apex Court in State of Kerala & Ors. v. Rajesh and Ors. reported in (2020) 12 SCC 122 wherein the Apex Court has held as under: '17. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus:- '37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is, not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.' 12. Under the aforesaid premises, learned P.P. has urged the court for rejecting the bail application of the accused. 13. Considered the submissions made at the Bar. Perused the materials available on record. 14. The law laid down by the Apex Court in the case of Rattan Mallik Alias Habul (supra) is that recording of satisfaction of the court in terms of section 37(1)(ii) is sine qua non for granting bail under the NDPS Act. In a later decision rendered by the Apex Court in State of Kerala & Ors. v. Rajesh and Ors. The law laid down by the Apex Court in the case of Rattan Mallik Alias Habul (supra) is that recording of satisfaction of the court in terms of section 37(1)(ii) is sine qua non for granting bail under the NDPS Act. In a later decision rendered by the Apex Court in State of Kerala & Ors. v. Rajesh and Ors. (supra) the Apex Court has reiterated the same ratio and held that the twin conditions laid down under section 37 of the NDPS Act must be satisfied for enlarging an accused on bail under the NDPS Act. The Hon'ble Apex Court by the said judgment while cancelling the bail order of the accused viewed that the finding mandated under section 37 NDPS Act is a sine qua non for granting bail to an accused under the NDPS Act. 15. This High Court in Haricharan Biswas (supra) and a catena of other decisions also held that the twin conditions laid down in section 37 of the NDPS Act which are cumulative and not in the alternative must be satisfied for granting bail under the NDPS Act. It was also observed by this court in the case of Haricharan Biswas (supra) that in view of the greater societal interest involved in such cases, a liberal approach in the matter of bail under the NDPS Act would not be appropriate. 16. In the present case, the substance recovered by the investigating agency is of huge quantity which is reported to be a psychotropic substance under the NDPS Act. Even though the accused has raised a plea that he was not involved in any manner in the alleged transportation of the contraband, such plea of the accused cannot be accepted at this stage in view of the materials available against him. The investigating agency has collected sufficient materials to prove his association with the offending vehicle as its driver. Wife of the co-accused has categorically asserted that the petitioner was a driver of her vehicle. Having denied his association with the offending vehicle, petitioner claimed that he left the job of driving the vehicle long back. The veracity of such statements can only be ascertained in the course of trial during the examination and cross examination of witnesses. Wife of the co-accused has categorically asserted that the petitioner was a driver of her vehicle. Having denied his association with the offending vehicle, petitioner claimed that he left the job of driving the vehicle long back. The veracity of such statements can only be ascertained in the course of trial during the examination and cross examination of witnesses. An elaborate examination of evidence touching the merit of the case and a detailed exposition thereof would not be appropriate at this stage because such observations are likely to prejudice the accused petitioner in the course of trial. 17. As noted, accused in the present case has been charged with section 21(c) of the NDPS Act where the contravention involves commercial quantity. Therefore, section 37 of the NDPS Act applies to the case. The question which falls for consideration of this court is whether the accused has qualified the tests provided under section 37(1)(ii) of the NDPS Act. 18. As discussed, there are sufficient prima facie materials against the petitioner. Therefore, there is no scope for this court to hold that there are reasonable grounds for believing that the petitioner is not guilty of the charge of offence brought against him and he is not likely to commit any offence while on bail. I have also kept in mind the following settled parameters for consideration of the bail application. (i) Nature and gravity of the accusation. (ii) Severity of the punishment in the event of conviction. (iii) Danger of the accused absconding or fleeing, if released on bail. (iv) Character, behavior, means, position and standing of the accused. (v) Likelihood of the offence being repeated. (vi) Reasonable apprehension of the witnesses being influenced. (vii) Possibility of justice being thwarted by grant of bail; and above all, (viii) Whether there is any prima facie or reasonable ground to believe that the petitioner has committed the offence. 19. In view of the law laid down by the Apex Court in the judgments cited to supra and the given facts and circumstances of the case, this court is of the view that the petitioner should not be enlarged on bail at this stage of the case. Consequently, his bail application stands rejected. 20. The trial Judge may take all steps to expedite the trial of the case. In terms of the above, the bail petition stands disposed of.