In Re : Samir Dey vs State Of Tamil
2021 Latest Caselaw 3774 Cal

14.07.2021 Court No.30

Krishnendu Bail Granted CRM 10765 of 2020 (Via video Conference)

In Re:- An application for bail under section 439 of the Code of Criminal Procedure ;

And In Re : Samir Dey Petitioner Mr. Sandipan Ganguly Mr. Karan Dudhwewala For the Petitioner Mr. Y.J.Dastoor, ld. A.S.G.

Mr. Phiroze Edulji Mr. Debu Chowdhury For the N.C.B.

The present application under Section 439 of the Code of

Criminal Procedure has been preferred by the petitioner in

connection with Special Case No. 27 of 2019 under section 8(c)

read with sections 21(c)/23/25/29 of the Narcotic Drugs and

Psychotropic Substances Act (arising out of N.C.B. Crime No.

22/NCB/KOL/2019).

Mr. Ganguly, learned senior advocate appearing for the

petitioner submits that the petitioner is presently aged about 64

years and is suffering from diabetics. He has been falsely

implicated and there had been no recovery of any contraband

substance from his possession. Initially, a notice under section

67 of the NDPS Act was issued to the petitioner on 23 rd

September, 2020. He submitted a representation praying for

extension of time to appear before the concerned officer. In

response thereto, a further notice was issued on 12 th October,

2020 directing him to appear on 2nd November, 2020. However,

prior thereto, he was arrested on 18th October, 2020 and is

languishing in custody since then. Upon conclusion of

investigation, charge sheet has also been submitted in the

month of October, 2020.

Mr. Ganguly argues that the petitioner had been roped in on

the basis of some confessional statements made by the

petitioner and one co-accused person, which are inadmissible in

evidence, in view of the judgment delivered by the Hon'ble

Supreme Court in the case of Tofan Singh - Vs- State of Tamil

Nadu reported in 2020 SCC OnLine SC 882.

Mr. Dastoor, learned Additional Solicitor General appears on

behalf of the NCB and opposes the petitioner's prayer placing

reliance upon the statements of accused persons, as recorded

under Section 67 of the NDPS Act. He submits that the matter

involves recovery of contraband substance above commercial

quantity and the call detail records clearly reveal the direct

involvement of the petitioner in the alleged offence and in view

of such incriminating materials on record, the petitioner's prayer

for bail needs to be refused.

In Tofan Singh (supra), it has, inter alia, been held that the

confessional statements under section 67 of the NDPS Act are

inadmissible in law. Prima facie, apart from the confessional

statements there is no other substantive material evidence

against the petitioner and in our opinion, the call detail records

and the telephonic conversation of the petitioner with co-

accused persons may give rise to a mere suspicion but would

not justify a case of conspiracy. In the said conspectus, the

rigors of section 37 of the NDPS Act are not attracted.

In the present pandemic situation and rapid proliferation of

the virus, prayer for bail needs to be considered liberally unless

custodial interrogation is absolutely necessary [See the order

passed by the Hon'ble Supreme Court in Re: Contagion of Covid-

19 Virus in Prisons]. The petitioner is an aged person and it is not

likely that he would interfere with the investigation or delay the

trial by abscondence.

Accordingly, we allow this application and direct that the

petitioner, namely, Samir Dey shall be released on bail upon

furnishing a bond of `20,000/- with two sureties of like amount

each, one of whom must be a local, to the satisfaction of the

learned Judge, Third Special Court under NDPS Act, Malda and

on condition that he shall reside at Balurghat and shall not leave

the jurisdiction of Balurghat Police Station save and except for

attending the learned trial court on all the dates, as fixed for

hearing.

The petitioner shall also meet the Officer-in-Charge of

Balurghat Police Station once a fortnight until further orders.

He shall not intimidate the witnesses or tamper with

evidence in any manner whatsoever.

It is made clear that in the event the petitioner fails to

comply with the aforesaid directions without any justifiable

cause, the learned trial court would be at liberty to cancel the

petitioner's bail without any further reference to this Court.

With the aforesaid observations, the application for bail,

being CRM No. 10765 of 2020, is disposed of.

All parties shall act on the server copies of this order duly

downloaded from the official website of this Court.

(Suvra Ghosh, J) (Tapabrata Chakraborty, J)