Calcutta High Court (Appellete Side)
Alauddin vs Unknown on 6 April, 2021
06.04.2021
sdas
(Allowed)
C.R.M. 1549 of 2021
In Re:- An application for bail under Section 439 of the Code
of Criminal Procedure in connection with Chanchal P. S.
Case No. 78 of 2015 dated 26.02.2015 under Section 18 of
the NDPS Act.
In the matter of : Alauddin
.... Petitioner.
Mr. Mritunjoy Chatterjee
Mr. Golam Nure Imrohi
Mr. Debapriya Majumder
...for the Petitioner.
Mr. Rana Mukherjee, ld. A.P.P.,
Mr. Santanu Chatterjee
...for the State.
This is an application for bail in connection with
Chanchal P. S. Case No. 78 of 2015 dated 26.02.2015 under
Section 18 of the NDPS Act at the behest of the petitioner.
It is one of the exceptional cases which has come before
us where the ambiguity, uncertainty and inconsistency is made
patent at the behest of the investigating officer. The case was
initiated after having seized the poppy plant allegedly cultivated
on the land of the petitioner who claims to be a co-sharer. The
First Information Report revealed the charging Section as
Section 18 of the NDPS Act which has three limbs and, in our
opinion, all the three limbs stand on the independent footing.
It is axiomatic to reproduce Section 18 of the NDPS Act which
runs thus :
"18. Punishment for contravention in relation to opium poppy and
opium. - Whoever, in contravention of any provision of this Act or
any rule or order made or condition of licence granted thereunder,
cultivates the opium poppy or produces, manufactures, possesses,
sells, purchases, transports, imports, inter-State, exports inter-State
or uses opium shall be punishable, -
(a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to one year, or with
fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be less than
ten years but which may extend to twenty years and shall also be
liable to fine which shall not be less than one lakh rupees which
may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees;
(c) in any other case, with rigorous imprisonment which may extend
to ten years and with fine which may extend to one lakh rupees."
Clause (a) of Section 18 relates to the involvement of the
small quantity with the punishment of one year or a fine which
may extend to Rs.10,000/- or both; on the other hand, Clause
(b) pertains to a commercial quantity having a rigorous
imprisonment for a term which should not be less than ten
years; Clause (c ) is omnibus and general in nature and
consists of the situation unrelated and/or unconnected with
Clauses (a) and (b) of Section 18 of the Act.
It is beyond the cavil of doubt that the case is initiated
after the seizure of the poppy plant cultivated on the land. It is
imperative on the part of the investigating officer to specify the
clauses contained under Section 18 of the Act instead of
generalising such offence and giving scapegoat to the offender
to wriggle out of the clutches of the rigorous provisions
contained under NDPS Act. The Act was enacted with avowed
of object and purpose to curb the menace of the drug which
has a greater impact on the development of the country and,
therefore, the investigating officer has the onerous duty to
investigate the matter with a sensitivity, alacrity and within the
strict precincts of the statute. The object and purpose of the
Act shall get frustrated in the event the investigating officer
deals the matter in routine and casual manner without
following the mandate of law. Whether the seized poppy plants
were the commercial quantity or not is one of the factors to be
decided and investigated upon and not in fashion or manner as
has been done in the instant case. The manner in which the
Sections are charged and the charge-sheet has been filed
leaves no ambiguity in our mind that the investigating officer
has acted reluctantly enuring to the benefit of the offender of
the grievous crime. We feel that it is a fit case whether the
Superintendent of the Police of District of Malda should be
apprised of the fact as we have a strong feeling that there is
something which played a pivotal role behind the curtain either
at the initiation of the proceeding or during the investigation.
The aforesaid observation has been made for the reasons
stated hereinabove and we expect that the Superintend of
Police will take into consideration the order which has been
passed herein and an appropriate proceeding shall be initiated
against the investigating officer. The instant order shall also be
kept in the service book of the investigating officer and be
considered at the time of evaluation of his performance in the
ACR (Annual Confidential Report).
Because of the vagueness of the allegations and without
specifying the quantity of the poppy plant having allegedly
seized we do not feel that further custody of the petitioner is
necessary.
Accordingly, we direct that the petitioner, namely,
Alauddin shall be released on bail upon furnishing a bond of
Rs.10,000/- with two sureties of like amount each, one of
whom must be local to the satisfaction of the learned Judge,
Special Court under NDPS Act, Malda, subject to the condition
that the petitioner shall make himself available on each day of
the listing of the matter before the Court and the default on
any solitary occasion without any justifiable cause may
disentitle him to the privilege of bail granted by this Court
without any further reference to this Court.
With the aforesaid observation, the application for bail is
disposed of.
(Harish Tandon , J.)
(Tirthankar Ghosh, J.)
