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2024 DIGILAW 283 (CAL)

S. Bala Murugan v. State

2024-02-06

HIRANMAY BHATTACHARYYA, MOUSHUMI BHATTACHARYA

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JUDGMENT : Moushumi Bhattacharya, J. 1. This is an application for bail. The petitioner has been in custody for 6 months. The chargesheet was filed on 01.01.2024 and charges were framed on 18.01.2024. The prosecution informed us that 33 witnesses are to be examined in this case. 2. The petitioner was one of the 3 accused persons of who S. Karthick is in custody and the other, Rajender Singh was released on bail by coordinate Bench on 22.11.2023. 3. The petitioner before us is on the same footing as Rajender Singh since the petitioner was also arrested on the basis of the statement of S. Karthick, one of the 3 co-accused. Thereafter, admittedly, no contraband substances were recovered from the possession of the petitioner. 4. The compilation of the documents prepared on behalf of the prosecution contains the relevant documents from the case diary. From there documents, it would appear that S. Karthick, one of the co-accused, was apprehended on 11.07.2023 and contraband substances were recovered from his possession. S. Karthick revealed the name of the petitioner during interrogation on 13.07.2023. 5. The petitioner was summoned on the basis of S. Karthick’s statement and interrogated. The Station House Officer of Police Station decided to conduct a search operation at an Arecanut plantation at Bambanallah, Sippighat and a raiding team was thereafter constituted for conducting search operation in the presence of the petitioner. One transparent packet was found during such search operation containing substances which later on transpired to be Methamphetamine weighing about 0.739 Kgs. 6. The prosecution claims that this seizure was made by way of a seizure memo in the presence of independent witnesses and that the petitioner admitted to the packet being provided by S. Karthick and being hidden by the petitioner. The petitioner was arrested under the provisions of the NDPS Act, 1985 on 13.07.2023. The seizure memo is part of the record and shows that the seizure was made at 2145 hours on 13.07.2023. 7. Learned counsel for the petitioner submits that there are several lacunae in the investigation and that the prosecution has violated the provisions of the NDPS Act. 8. Learned counsel appearing for the prosecution rejects the above contention and opposes the prayer for bail on the ground that the contraband substance above commercial quantity was recovered from the petitioner. 9. 7. Learned counsel for the petitioner submits that there are several lacunae in the investigation and that the prosecution has violated the provisions of the NDPS Act. 8. Learned counsel appearing for the prosecution rejects the above contention and opposes the prayer for bail on the ground that the contraband substance above commercial quantity was recovered from the petitioner. 9. The material on record from the case diary however points to several lacunae in the procedure by the prosecution and contraventions of the provisions of the NDPS Act, 1985 as well as The Code of Criminal Procedure, 1973. 10. First of all, it is undisputed that the name of the petitioner was disclosed by a co-accused, which leads to the other and more significant admitted fact that the contraband substance was not recovered from the possession of the petitioner. Second, the seizure memo dated 11.07.2023 records contraband substance below commercial quantity. This is also the case of the prosecution. The prosecution has admitted that the quantity seized at the time of arrest was subsequently topped-up by the Investigating Officer who was directed to conduct a more extensive search on a later occasion in the same Arecanut plantation. Third, section 41-B of The Code of Criminal Procedure lays down certain guidelines pertaining to the procedure of arrest and duties of the officer making such arrest. Sub section (b) of section 41-B is relevant to the present case. The said provision requires the memorandum of arrest to be attested by at least one witness who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made (41-B(b)(i)). 11. The narration of events recorded in the documents compiled by the prosecution shows that a raiding team was constituted for conducting search operation on 13.07.2023 in the presence of the petitioner and independent witnesses. The prosecution has not disputed this recording in any manner and has, on the other hand, admitted that “independent witnesses” were along with the raiding team for conducting search and seizure on 13.07.2023. This is contrary to section 41-B(b)(i) which clearly mandates the presence of independent witnesses and even specifies the classes of the witnesses who are to attest the memorandum of arrest. This is contrary to section 41-B(b)(i) which clearly mandates the presence of independent witnesses and even specifies the classes of the witnesses who are to attest the memorandum of arrest. The police constituting a raiding team consisting of independent witnesses for the purpose of conducting search is clearly against the mandate of section 41-B(b)(i) of the Cr.PC. Section 60-A of the Cr.PC mandates that no arrest shall be made except in accordance with provision of the Cr.PC. 12. The Supreme Court in D.K. Basu vs. State of West Bengal, (1997) 1 SCC 416 issued certain directions which were to be followed in all cases of arrest or detention till legal provisions were made in that behalf. Section 41-B is in line with D.K. Basu. 13. There are several other question marks in the procedure which have not been answered by the prosecution to our satisfaction. Section 42(1) of the NDPS Act empowers an officer to enter, search, seize and arrest without warrant or authorization subject to the two provisos to that section. The second proviso is relevant for the for the present case since the seizure was made at 2145 hrs. which is between sunset and sunrise. The second proviso empowers the officer to enter and search a building, conveyance or enclosed place after recording the ground of his belief. Section 42(2) is a follow-up of the second proviso of 42(1) where the concerned officer shall take down any information in writing under section 42(1) or the grounds of his belief under the second proviso to section 42(1) and shall send a copy thereof to his immediate official superior. There is no evidence of the concerned officer complying with the mandate of either the second proviso to section 42(1) or section 42(2) particularly when the seizure was made between the sunset and sunrise. 14. The difficulty of covering a substantial distance from the P.S. to the site of arrest, finding the contraband substance and making the arrest in a plantation of 6500 Sq. Mt. within a short time has also not been explained 15. The above grounds, in our view, are sufficient to rebut the statutory restriction under section 37 of the Act. 16. The difficulty of covering a substantial distance from the P.S. to the site of arrest, finding the contraband substance and making the arrest in a plantation of 6500 Sq. Mt. within a short time has also not been explained 15. The above grounds, in our view, are sufficient to rebut the statutory restriction under section 37 of the Act. 16. In the Union of India vs. Ajay Kumar Singh @ Pappu, SLP (Crl.) No. 2351 of 2023, the Supreme Court came to a specific finding that the respondent-accused is the kingpin and organizer of an illicit trade in ganja and the respondent-accused had also been involved in similar crimes in the past and several cases were pending against him. 17. In State of Kerala vs. Rajesh, Criminal Appeal No(S). 154-157 of 2020, the Supreme Court placed emphasis on section 37 (1)(b)(ii) of the NDPS Act that there must be reasonable grounds for believing that the accused is not guilty of the offence and that the accused likely to commit any offence while on bail. 18. This is a fit case for the Court to hold that the condition in section 37(1)(b)(ii) of the NDPS Act is satisfied. The reasons stated in the above constitute those grounds. We accordingly, deemed it fit to allow the prayer for bail. 19. We accordingly direct that the petitioner shall be released on bail upon furnishing a bond of Rs. 20,000/-(rupees twenty thousand only) with two sureties of like amount each, one of who must be local, to the satisfaction of the learned Special Judge, Special Court (under NDPS Act), Port Blair. The petitioner shall not induce witnesses or influence them or tamper with evidence. The petitioner shall also make himself available for the trial as and when the petitioner is required and shall also not leave the jurisdiction of the concerned police station without leave of the concerned authorities. 20. CRM(DB)/3/2024 is accordingly allowed and disposed of in terms of the above. 21. Parties to act on a server copy of this order duly downloaded from the official website of the Hon’ble High Court at Calcutta. I agree. Hiranmay Bhattacharyya, J.