JUDGMENT : Biswaroop Chowdhury, J.: 1. This is an application under Section 439 of the Code of Civil Procedure filed by the petitioner who is in custody from 28/12/2022 in connection with Mekhliganj P.S. Case. No – 421/2022 dated 22/12/2022 under Section 14 A and 14C of the Foreigners Act 1946 read with Section 11(1)(d) of Prevention of Cruelty to Animals Act 1960 and read with Section 379 and 411 of Indian Penal Code 1860. 2. It is the contention of the petitioner that he is no way connected with the present alleged offences and neither he knew nor had ever met with the other accused persons involved in these alleged offences. It is further contended that the petitioner is languishing in custody for a considerable period of time and the prolonged detention of the petitioner has pushed his family to the brink of ruination both socially and financially. It is also contended by the petitioner that he is a permanent resident of the place mentioned in the cause title and there is no chance to abscond or evade due process of law if released on bail. 3. Heard Learned Advocate for the petitioner and Learned Advocate for the opposite party State of West Bengal, perused the material in the case diary. 4. Learned Advocate for the petitioner submits that there are no sufficient materials to proceed against his client Learned Advocate further submits that as his client is in custody from 28/12/2022 the prayer for bail made by the petitioner be considered Learned Advocate for the opposite party State of West Bengal objects the grant of bail. 5. Upon perusal of the case diary it appears that the petitioner was not arrested from the place of occurrence but was implicated on the basis of the statement of co-accused person. It further appears that the petitioner was in custody in connection with another case and shown arrest in this case. It also appears that although the petitioner was taken in remand for 3 days and interrogated but there is no subsequent discovery of any materials pursuant to such interrogation. 6. Upon perusing the case diary and upon hearing the Learned Advocates although it would not be proper to make any observation about the merits of the case but it has to be decided as to whether the petitioner should be granted bail. 6. Upon perusing the case diary and upon hearing the Learned Advocates although it would not be proper to make any observation about the merits of the case but it has to be decided as to whether the petitioner should be granted bail. In order to decide as to whether the petitioner should be granted bail it is necessary to consider some judicial decisions. 7. In the Case of Captain Jagjit Singh reported in AIR 1962 SC. 253 . The Hon’ble Supreme Court observed that there are no hard and fast rules regarding grant or refusal of bail, each case being necessary to be considered on its own merits. The matters always call for judicious exercise of discretion by the Court. Where the offence is of a serious nature the Court has to decide the question of grant of bail in the light of such considerations as the nature and seriousness of the offence character of the evidence, circumstances which are peculiar to the accused a reasonable possibility of presence of the accused not being secured at the trial and reasonable apprehension of witnesses being tempered with the larger interest of the public or with similar other consideration. 8. In the case of Gudikanti reported in AIR-1978 S.C. P-429, the Hon’ble Supreme Court has laid down the guidelines in the matter of granting or refusing bail. It is observed that deprivation of freedom by refusal of bail is not for punitive purposes but for the bifocal interest of justice. The nature of charge is a vital factor and the nature of evidence is also pertinent. The severity of the punishment to which the accused may be liable if convicted also bears upon the issue. Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. The Court has also to consider the likelihood of the applicant interfering with the witnesses for the prosecution or otherwise polluting the process of justice. It is rational to inquire into the antecedents of the man who is applying for bail to find out whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail. It is rational to inquire into the antecedents of the man who is applying for bail to find out whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail. In the case of State V Balchand reported in AIR-1977 S.C. 2447 it was observed by the Hon’ble Supreme Court that the basic rule is to grant bail except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like. 9. In the case of Anil Sharma Vs State of Himachal Pradesh. reported in (1997) 3 crimes 135 (HP) the Hon’ble Himachal Pradesh High Court observed that in non-bailable cases in which the person is not guilty of an offence punishable with death or imprisonment for life, the Court will exercise its discretion in favour of granting bail subject to sub-section (3) of Section 437 if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat the proper investigation and fair trial the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. 10. In Sanjay Chandra V CBI (2012) 1 SCC. CRI the Hon’ble Supreme Court observed as follows: 11. In Sanjay Chandra v CBI (2012) 1 SCC (Cri) 26: (2012) 1 SCC 40 , the Supreme Court has considered the right of liberty of any citizen including an accused of a non-bailabe offence vis-à-vis his right to bail. It has been held that the provisions of Cr PC confer discretionary jurisdiction on criminal Courts to grant bail to the accused pending trial or in appeal against convictions: since the jurisdictions discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. The approach adopted by the trial court and affirmed by the High Court, is a denial of the whole basis of the Indian system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. The approach adopted by the trial court and affirmed by the High Court, is a denial of the whole basis of the Indian system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. Bail is the rule and committal to jail an exception. Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. When there is a delay in trial, bail should be granted to the accused. 12. In the case of State of Kerala V Raneef (2011) 1 SCC. 784 the Hon’ble Supreme Court observed that in deciding bail applications an important factor which certainly be taken into consideration by the Court is the delay in concluding the Trial. 13. Upon considering the judicial decisions discussed above it will appear that law laid down in different judicial pronouncements that bail is the rule and jail is the exception holds good even today unless there is provision under special law creating bar in the grant of bail. Thus following the principle that bail is the rule and jail is the exception will confer discretion to the Court to refuse bail when the offence is such that punishment provided is so severe and the materials against the accused are so strong and the antecedent of the accused is such that grant of bail will lead to abscondence of the accused or tampering with evidence or repeating such offence or such release creates panic in the mind of the witnesses to depose against the accused. The fact of the case should be such that even imposing of stringent condition would not be a deterrent to abscond or tamper with the witness, the Court may exercise discretion to refuse bail. 14. In the instant case although the petitioner is charged under Section 14 A and 14 C of the Foreigners Act but mere implicating a person in an offence would not make the said person guilty as a person is presumed to be innocent till proved guilty. A correctional home exists to reform persons who are found guilty by a Court of law. A correctional home exists to reform persons who are found guilty by a Court of law. Bail should not be refused as a matter of punishment thus an under-trial prisoner who is not found quality by a Court of law and is presumed to be innocent should not be compelled to reside in a place with guilty persons for a long period unless there are compelling circumstances. As there is grievance from different corners regarding delay in trial and flooding the correctional home with under-trial prisoners this issue should be addressed. Either the trial should be completed within a short period or the accused should be enlarged on bail when there is no possibility for the trial to be completed within a short period. 15. In the instant case although charge-sheet is issued against the petitioner and the petitioner is in custody for more than seven months, the examination of witness has not yet commenced, and the date fixed for examination is after two months. Learned Advocates for the parties also could not assure the Court that the examination of the witnesses will be completed within a short period. Moreover the offence with which the petitioner is charged provides minimum punishment of two years and maximum of 8 years. 16. Thus considering the nature of offence materials in the case diary period of detention and the fact that examination of witness has not commenced this Court is of the view that as the petitioner is a resident of the District where alleged offence took place and fact that most of the witnesses are government officers, this Court is of the view that as there is no reasonable apprehension to abscond or tamper with evidence in the interest of justice the petitioner should be enlarged on bail. 17. Hence it is ordered that the petitioner shall be released with two sureties of Rs. 10,000/- each one of which must be local subject to satisfaction of Learned CJM Coochbehar. The petitioner on being released shall meet O C Mekhliganj PS once in a week and shall attend Court an all dates fixed. 18. The CRM. 438 of 2023 stands disposed. Harish Tandon, J. 1. I had an occasion to peruse the draft copy of the judgment authored by my Brother Biswaroop Chowdhury, J. but I am unable to persuade myself to concur with the ultimate decision taken therein. 18. The CRM. 438 of 2023 stands disposed. Harish Tandon, J. 1. I had an occasion to peruse the draft copy of the judgment authored by my Brother Biswaroop Chowdhury, J. but I am unable to persuade myself to concur with the ultimate decision taken therein. I intend to give my views in relation to the instant case both on facts and the law. In the draft judgment the facts of the case has been succinctly narrated but in order to bring a continuity to my views the salient facts are adumbrated hereinafter. The petitioner is arrested on 28.12.2022 in connection with the Mekhliganj Police Station Case no. 421/2022 dated 22nd December, 2022 under Section 14A and 14C of the Foreigners Act, 1946 read with Section 11 (1) (d) of the Prevention of Cruelty to Animals Act, 1960 read with Section 379 and 411 of the Indian Penal Code, 1860. The aforesaid case was initiated in the said police station on the basis of a complaint dated 22nd December, 2022 by one Suresh Singh Gurjar, an Officer of the BSF that in the early hour i.e. 05.45 Hrs while he was on duty observed certain smugglers attempting to smuggle the cattles. On being challenged these smugglers fled away but one of them namely Md. Masud, a Bangladeshi National were apprehended along with 5 cattle. On interrogation it was disclosed by the said Bangladeshi National that he entered the territory of India from Bangladesh through a porous Border and received those cattle from his associates, the petitioner being one of them so that those cattle can be smuggled to the Bangladesh. On the basis of the said complaint, the FIR was lodged and it appears that the said Bangladeshi National confessed not only his foreign nationality but the smuggling of the cattle from India to Bangladesh with the help of his associates including the petitioner. As indicated above, the petitioner was apprehended on the same date and is still in custody. The investigation is complete and the charge-sheet/final report has been filed against all the offenders including the petitioner and it is not in dispute that the said foreign national has been sentenced for 2 years on the basis of a confession having made before the Court. 2. The investigation is complete and the charge-sheet/final report has been filed against all the offenders including the petitioner and it is not in dispute that the said foreign national has been sentenced for 2 years on the basis of a confession having made before the Court. 2. In the draft judgment my brother has relied upon a judgment of the Supreme Court rendered in case of State vs. Jagjit Singh reported in AIR 1962 SC 253 further proposition that there may not be any hard and fast rule regarding the grant or refusal of bail as every case has to be considered on the basis of its own fact. 3. On the conspectus of the aforesaid facts narrated hereinabove the first and foremost question which arises is the exercise of power by the Court in granting or refusing the bail in connection with the case concerning the Foreigners Act, 1946. The law in this regard in my opinion is somewhat settled that before a person is released on bail, the Court must record a prima facie satisfaction to the conclusion whether there are sufficient materials disclosed in the investigation, if proved would lead to a commission of an offence. The recording of the prima facie satisfaction is sine qua non in dealing with an application for bail either granting or refusing. 4. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra reported in (2005) 5 SCC 294 the Apex Court was considering the scope and power of the Court to grant bail. It has been succinctly observed therein that there cannot be any restriction put on the Court in granting bail as it would defeat the very purpose of incorporation of Section 439 of the Code of Criminal Procedure. It is held that if the Court is prima facie satisfied in all probability a person may not be ultimately convicted, he should be granted bail. It is further held that such satisfaction to be recorded by the Court may sometimes be regarded as swaying effect during the trial that the person has not committed an offence and, therefore, a reasonable care and safeguard be taken that such prima facie satisfaction is only restricted to a grant of bail subject to the ultimate decision to be taken in the trial. It has been highlighted in the said judgment that the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly may be one of the relevant factor to be taken into account while exercising the power to grant bail in the following: “45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.” 5. Even prior thereto the Apex Court in case of In Kalyan Chandra Sarkar v. Rajesh Ranjan reported in (2004) 7 SCC 528 highlighted the adherence of safeguard while discussing the merit and demerit of the case at the stage of granting bail and the avoidance to the detailed examination of the evidence and elaboration of the documents on merit. The Apex Court discarded the submission made at the Bar that the Court should not record a prima facie findings at the time of granting bail in the following: “18.8. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreement with the argument addressed by the learned counsel for the accused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondents or his supporters to witnesses in the case. In such circumstances, the court was duty-bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. In such circumstances, the court was duty-bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non-consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As started hereinabove, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on bail because of the serious allegations of tampering with the witnesses made against the respondent.” 6. In Jayandra Saraswathi Swamigal v. State of T.N. reported in (2005) 2 SCC 13 the Apex Court held: “16. ... The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Jagjit Singh [ (1962) 3 SCR 622 : AIR 1962 SC 253 : (1962) 1 Cri LJ 215] and Gurcharan Singh v. State (UT of Delhi) [ (1978) 1 SCC 118 : 1978 SCC (Cri) 41] and basically they are – the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.” 7. The aforesaid judgment of the Apex Court has been considered in a recent judgment of the Supreme Court rendered in case of Vernon vs. State of Maharashtra & Anr. The aforesaid judgment of the Apex Court has been considered in a recent judgment of the Supreme Court rendered in case of Vernon vs. State of Maharashtra & Anr. reported in (2023) SCC Online SC 885 wherein the Court held that when the statute have a stringent provision, the duty of the Court is more onerous and responsible as in case of grievous offences greater care is required to be taken more particularly, as to whether the offence falls within the four corners of the said Act in the following: “36. In three decisions of this Court, Hitendra Vishnu Thakur v. State of Maharashtra [ (1994) 4 SCC 602 ], Nilanjan Sigh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya [ (1990) 4 SCC 76 ] and Usmanbhai Dawoodbhai Memon v. State of Gujarat [ (1988) 2 SCC 271 ], the manner in which stringent provisions of a statute ought to be interpreted has been laid down. In all the three authorities, observation of this Court has been that the Court ought to carefully examine every case, before making an assessment if the Act would apply or not. When the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the act. Though three judgments were delivered while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the same principle would apply in respect of the 1967 Act as well.” 8. However, the Apex Court had an occasion to consider the expression “prima facie true” i.e., the prima facie test and held that such expression has to be construed in the perspective of the materials collated and/or gathered by the investigating agencies leading to an accusation and the complicity of the accused in commission of the stated offence in the following: “37. In the case of Zahoor Ahmad Shah Watali (supra), it has been held that the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the chargesheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this “struggle” inspired by the appellants has been brought before us. Thus, we are unable to accept NIA’s contention that the appellants have committed the offence relating to support given to a terrorist organisation.” 9. In Paragraph 44 of the said judgment the Court taking note of the earlier judgment of the Apex Court held that the nature of the seriousness of the offences, the reliability of the evidence and the role of the accused and the reasonable possibility of the accused to be involved in the commission of an offence may be the relevant factors for granting or rejecting the bail in the following: “44. In the case of Zahoor Ahmad Shah Watali (supra) reference was made to the judgment of Jayendra Saraswati Swamigal v. State of Tamil Nadu [ (2005) 2 SCC 13 ) in which, citing two earlier decisions of this Court in the cases of State v. Jagjit Singh ( AIR 1962 SC 253 ) and Gurcharan Singh v. State of (UT of Delhi) [ 1978 1 SCC 118 ), the factors for granting bail under normal circumstances were discussed. It was held that the nature and seriousness of the offences, the character of the evidence, circumstances which are peculiar to the accused, a reasonable responsibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tempered with; the larger interest of the public or the State would be relevant factors for granting or rejecting bail. Juxtaposing the appellants’ case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have elapsed since they were taken into custody, we are satisfied that the appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapter IV and VI of the 1967 Act, we have referred to the materials available against them at this stage. These materials cannot justify continued detention of the appellants, pending final outcome of the case under the others provisions of the 1860 Code and the 1967 Act.” 10. Based upon the law enunciated in the above noted decisions, let us see whether the petitioner has been able to make out a case of such nature which warrants his release on bail. It is sought to be contended by the petitioner that he has been implicated in the aforesaid case on the basis of the statement of prime accused and, therefore, such a statement is not a reliable piece of evidence leading to the conviction of the petitioner under the Foreigners Act. As indicated in the above noted decision the role and the antecedents of the person is one of the relevant factors in exercising the power provided under Section 439 of the Code of Criminal Procedure while granting bail. The record would reveal that the petitioner was involved in an identical offences i.e., the smuggling of the cattle to the foreign country and was also implicated in another case i.e. the Mekhliganj Case no. 422 of 2022. There is no hesitation in my mind that the petitioner is a habitual offender and is actively involved in the smuggling of the cattle and also facilitates the foreign nationals to cross the border and to enter into our country. 422 of 2022. There is no hesitation in my mind that the petitioner is a habitual offender and is actively involved in the smuggling of the cattle and also facilitates the foreign nationals to cross the border and to enter into our country. The role attributable to the conduct of the petitioner would further reveal that he not only give shelter to this illegal infiltrators but also arrange the cattle to be smuggled from the country. Such an antecedents does not inspire that the petitioner would not commit an offence after being released on bail and therefore, I am of the opinion that it is not a fit case where the petitioner should be enlarged on bail after a charge-sheet is submitted. 11. The application of bail is thus rejected. 12. Since there is a difference of opinion of the members of the Division Bench, let the matter be placed before the Chief Justice for taking an appropriate decision in the administrative side. 13. Urgent Photostat certified copies of the judgment, if applied for, be made available to the parties subject to compliance with requisite formalities.