Calcutta High Court (Appellete Side)
Rakesh Singh @ Rakesh Kumar Singh vs The State Of West Bengal on 24 November, 2021
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CALCUTTA HIGH COURT
Criminal Miscellaneous Jurisdiction
Appellate Side
C.R.M 3152 of 2021
Rakesh Singh @ Rakesh Kumar Singh
-Vs.-
The State of West Bengal
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Bivas Pattanayak
For the petitioner : Mr. Sekhar Basu, LD. Sr. Adv.
Mr. Rajdeep Majumder, Adv.
Mr. Mayukh Mukherjee, Adv.
For the State : Mr. S.N. Mookherjee, Ld. A.G.,
Mr. Saswata Gopal Mukherjee, Ld. PP.
Mr. Sanjay Bardhan, Adv.
Mr. Md. Sabir Ahmed, Adv.
Mr. Rudradipta Nandy, Adv.
Mr. Ranadeb Sengupta, Adv.
Heard On : 01.10.2021 & 07.10.2021
CAV on : 07.10.2021
Judgment On : 24.11.2021
Arijit Banerjee, J.:-
1. The petitioner seeks bail in connection with NDPS Case No. 17/21
corresponding to New Alipore P.S Case No. 65/2021, dated 19.02.2021
initiated under Sections 21(b)/29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short the "NDPS Act") pending before the Court of
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the Learned Judge, Special Court under the NDPS Act cum Additional
Sessions Judge, 4th Court at Alipore. The petitioner was arrested on
23.02.2021 and is in custody since then. The charge sheet was submitted
on 03.05.2021, wherein Section 27A of the NDPS Act was added.
2. The argument of Mr. Sekhar Basu learned Senior Counsel appearing
for the petitioner may be summarised as follows:-
(i) There was no recovery of contraband item (cocaine) from the
possession of the petitioner. About 76 gms of cocaine was
recovered from a motor car in which three persons were
found, viz, Somnath Chattopadhay, Prabir Kumar De, and
Pamela Goswami.
(ii) The petitioner has been implicated on the basis of statements
made by the aforesaid three persons who are co-accused, but
whose names are not included in the charge sheet.
Statements of co-accused persons are not admissible in
evidence.
(iii) Intermediate quantity of narcotics is involved. The Hon'ble
Supreme Court, in the case of Sami Ullaha v.
Superintendent, Narcotic Central Bureau, 2009 CRI
LJ1306 observed that where intermediate quantity of
contraband is involved, "the rigours of the provisions of
Section 37 of the Act relating to grant of bail may not be
justified".
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(iv) The initial prosecution case and the case in the charge sheet
are diametrically opposite. Initially the case was that acting
on source information, the police apprehended Somnath,
Prabir and Pamela in a car. Upon interrogation, they pointed
out where in the car the contraband item was concealed. The
prosecution case in the charge sheet is that the petitioner
planted the contraband item in the concerned car to put the
aforesaid three persons in trouble as an act of revenge.
(v) There is no material on record even to prima facie support the
charge under Section 27A of the NDPS Act (financing illicit
traffic and harbouring offenders).
(vi) Section 42 of the NDPS Act has not been complied with.
(vii) Several criminal cases may be pending against the petitioner,
but none of them is under the provisions of the NDPS Act.
Only in one case the petitioner was convicted and sentenced
to one year imprisonment for entering into a scuffle with a
police officer in a court premises. Such sentence was
subsequently suspended by the Appeal Court.
(viii) This is a politically motivated case and the petitioner has
been framed. The false case has been prompted by the factum
of the petitioner renouncing the membership of one political
party and joining a rival political party.
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3. The argument of learned Advocate General opposing the petitioner's
bail prayer on behalf of the State may be summarised as follows:-
(i) The NDPS Act the special statute aimed at consolidating and
amending the law relating to Narcotic Drugs, to make
stringent provisions for the control and regulation of
operations relating to Narcotic Drugs and Psychotropic
substances, to provide for the forfeiture of property derived
from, or used in illicit traffic in Narcotic Drugs and
Psychotropic Substances, to implement the provisions of the
international conventions on Narcotic Drugs and Psychotropic
Substances and for matters connected therewith. The
provisions of the Act should be strictly enforced to curb the
menace of drug trafficking which has a highly damaging effect
on the society at large.
(ii) The petitioner is the kingpin of a drug racket. Naturally, he
will not come in the fore-front and indulge in any overt act.
He will pull the strains from behind the curtain as in this
case.
(iii) There is sufficient material to support the charge under
Section 27A of the NDPS Act. Hence, the restrictions in
Section 37 of the Act are attracted.
(iv) The petitioner has been charge sheeted on the basis of
statements of witnesses who are not co-accused persons. In
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particular, the statements of Nasir Khan (recorded on
30.03.2021 under Section 164 Cr.P.C.) and Nishat Alam
@ Ruman Khan (recorded under section 164 Cr.P.C) have
been relied upon. Reference has also been made to
statements of one Sanjay Singh (page 2 of Memo of Evidence),
Manoj Kumar Singh (page 3 of Memo of Evidence), Chandra
Mohan Jha (page 4 of Memo of evidence), Sutapa Manna
(Page 5 of Memo of evidence) and Pankaj Bagla (page 14 of
memo of evidence). Relying on the aforesaid statements, it
was submitted firstly, that the petitioner is involved not only
in a solitary drug transaction but he is the head of a drug
peddling racket; and secondly, on 23.02.2021, i.e. the date on
which he was arrested, he had tried to escape to Patna.
(v) The petitioner is a History Sheeter. 53 criminal cases are
pending against him. His bail was earlier cancelled by this
Court on the ground that he threatened the Investigating
Officer of that case and the prosecution witnesses outside the
Court room and thereby violated a condition of bail. Reference
was made to the case of the State of West Bengal v. Rakesh
Kumar singh, 2015, SCC OnLine Cal 1338.
(vi) The petitioner is an influential person and is likely to tamper
with evidence and threaten prosecution witnesses if released
on bail.
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(vii) Reliance was placed on the Hon'ble Apex court's decision in
State of Kerala & Ors. v. Rajesh & Ors. (2020) 12 SCC
122. In particular paragraphs 17 to 20 of the judgment were
relied upon, which are set out hereunder:
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 the 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 27-A and also for offences involving
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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." (emphasis supplied)
18. This court has laid down broad parameters to be
followed while considering the application for bail moved
by the accused involved in the offences under the NDPS
Act. In Union of India v. Ram Samujh, it has been
elaborated as under:
"7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a murder
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case, the accused commits murder of one or two
persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death or in
inflicting death-blow to a number of innocent young
victims, who are vulnerable; it causes deleterious
effects and a deadly impact on the society; they are a
hazard to the society; even if they are released
temporarily, in all probability, they would continue
their nefarious activities of trafficking and/or dealing
in intoxicants clandestinely. Reason may be large
stake and illegal profit involved. This Court, dealing
with the contention with regard to punishment under
the NDPS Act, has succinctly observed about the
adverse effect of such activities in Durand Didier v.
State (UT of Goa) as under: (SCC p. 104, para 24)
'24. With deep concern, we may point out that the
organised activities of the underworld and the
clandestine smuggling of narcotic drugs and
psychotropic substances into this country and illegal
trafficking in such drugs and substances have led to
drug addiction among a sizeable section of the public,
particularly the adolescents and students of both
sexes and the menace has assumed serious and
alarming proportions in the recent years. Therefore, in
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order to effectively control and eradicate this
proliferating and booming devastating menace,
causing deleterious effects and deadly impact on the
society as a whole, Parliament in its wisdom, has
made effective provisions by introducing this Act 81 of
1985 specifying mandatory minimum imprisonment
and fine.'
8. To check the menace of dangerous drugs flooding
the market, Parliament has provided that the person
accused of offences under the NDPS Act should not be
released on bail during trial unless the mandatory
conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that
the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while
on bail
are satisfied. The High Court has not given any
justifiable reason for not abiding by the aforesaid
mandate while ordering the release of the respondent-
accused on bail. Instead of attempting to take a
holistic view of the harmful socio-economic
consequences and health hazards which would
accompany trafficking illegally in dangerous drugs, the
court should implement the law in the spirit with
which Parliament, after due deliberation, has
amended."
19. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 Cr.P.C., but is also subject
to the limitation placed by Section 37 which commences
with non obstante clause. The operative part of the said
section is in the negative form prescribing the
enlargement of bail to any person accused of commission
of an offence under the Act, unless twin conditions are
satisfied. The first condition is that the prosecution must
be given an opportunity to oppose the application; and
the second, is that the court must be satisfied that there
are reasonable grounds for believing that he is not guilty
of such offence. If either of these two conditions is not
satisfied, the ban for granting bail operates.
20. The expression "reasonable grounds" means
something more than prima facie grounds. It
contemplates substantial probable causes for believing
that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires
existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. In the case on
hand, the High Court seems to have completely
overlooked the underlying object of Section 37 that in
addition to the limitations provided under the Cr.P.C., or
any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail
under the NDPS Act is indeed uncalled for."
(viii) Reliance was also placed on the Hon'ble Supreme Court's
decision in the case of Union of India through Narcotics
Control Bureau, Lucknow v. Md. Nawaz Khan, 2021 SCC
Online Sc 782 in support of the proposition that whether or
not there was compliance with Section 42 of the NDPS Act is
a question that should be raised in course of the trial and not
at the stage of hearing of a bail application.
(ix) In this case, the investigating agency made a prayer before
the learned Trial Court for collecting voice sample of the
petitioner. Such prayer was allowed by the Trial Court by
order dated August 7, 2021. Such order was challenged by
the petitioner before a learned Judge of this Court by filing an
application under Sections 482/483 Cr.P.C. being CRR 1673
of 2021. The application was dismissed by the High Court by
an order dated 20.09.2021. The resistance of the petitioner to
the attempt of the investigating agency to collect his voice
sample points towards the petitioner's guilt.
4. We have considered the rival contentions of the parties. We have also
perused the material in the memo of evidence filed on behalf of the State.
5. Certain things are clear. Firstly, there was no recovery of contraband
items from the physical possession of the petitioner. Nothing was recovered
from the person of the petitioner or any place over which the petitioner had
exclusive control. We are conscious that mere non-recovery of contraband
from a person's possession may not per se dilute the rigours of Section 37 of
the NDPS Act.
6. However, even assuming that the petitioner had dominion or control
over the contraband in question, admittedly intermediate quantity (76 gms)
of cocaine was seized. It was urged on behalf of the State that the
statements of witnesses would indicate that the petitioner was a regular
purchaser of contraband items. However, the fact remains that in the
present case only 76 gms of cocaine is involved. As observed by the Hon'ble
Apex Court in the case of Sami Ullaha (Supra), where intermediate
quantity of narcotics is involved, it may not be justified to apply the rigours
of the provisions of Section 37 of the NDPS Act relating to grant of bail.
7. Thirdly, the seizure of the Cocaine was from Prabir, Somnath and
Pamela as would appear from the seizure list. The First Information Report
dated February 19, 2021 also names those three persons as the accused.
They have however not been named in the charge sheet. The prosecution
case has changed completely from what it was at the time of filing of the
FIR. The story in the charge sheet is completely different. While the case of
the prosecution initially was that recovery of the contraband item was made
from Prabir, Somnath and Pamela who were intercepted in the Motor Car,
the story in the charge sheet is that the petitioner planted the contraband
item in the Motor Car in which those three persons were travelling to put
them in trouble to take revenge for some personal enmity. Prima facie, this
raises considerable doubt in our mind as regards the veracity of the
prosecution case.
8. Fourthly, in so far as the offence under Section 27A of the NDPS Act is
concerned, i.e. financing illicit trafficking and harbouring offenders, prima
facie we do not find material evidence to support that charge. In our view,
being involved in one solitary transaction concerning contraband items will
not amount to financing illicit traffic in narcotics. The word "trafficking"
connotes continuous flow. There has to be some degree of continuity and
regularity in drug dealing before a person can be said to be trafficking in
drugs. Similarly, financing illicit traffic would necessarily mean doing so on
a regular or continuous basis. It is much more than purchasing or selling
contraband items on one occasion. Such a solitary transaction would, in our
prima facie opinion, not fall within the mischief of Section 27A of the NDPS
Act. In this connection, one may refer to a decision of the Bombay High
Court rendered on October 7, 2020 in Criminal Bail Application (Stamp)
No. 2386 of 2020 (Reha Chakraborty v. The Union of India State of
Maharashtra).
9. Fifthly, we also notice that none of the 53 criminal cases pending
against the petitioner is under the provisions of the NDPS Act. Though the
petitioner has criminal antecedents, there is no history of the petitioner
dealing in narcotics in contravention of the provisions of the NDPS Act.
10. Prima facie there is nothing to show that the petitioner has previously
violated any of the provisions of the NDPS Act.
11. As regards the State's argument that the petitioner was trying to
abscond on the night when he was arrested, prima facie, the petitioner may
be given the benefit of doubt that he was not going to Patna for the purpose
of absconding. Since there was no restriction on his movement, merely from
the fact that he was headed towards Patna may not necessarily indicate that
he was trying to flee.
12. As regards the petitioner's reluctance to furnish voice sample, we do
not think that such refusal would be a ground for denying bail to the
petitioner when on an overall assessment of the material on record and on
consideration of the applicable law, we are of the prima facie view that the
petitioner may have a reasonably arguable case for acquittal at the trial.
Refusal of the petitioner to furnish voice sample, may or may not have an
adverse effect on his case at the trial, but we are not concerned with the
same at this stage.
13. We are conscious about the salutary object of the NDPS Act and we
have given due regard to the decision of the Hon'ble Apex Court in the case
of State of Kerala v. Rajesh, (Supra). There cannot be any doubt that
persons indulging in illegal trafficking in contraband drugs and psychotropic
substances must be dealt with, with iron hands. The activities of such
persons have a widespread deleterious effect on the society at large.
Countless members of the society, often of tender age, fall prey to the
heinous and nefarious activities of drug peddlers. However, the decision in
each case must depend on the facts of the case and no principle of law can
be applied blindly to a given set of facts. In the facts of the present case, on
an assessment of the material on record, we are of the prima facie view that
the petitioner may not have committed the offence that he is charged with.
Further, considering the past history of the petitioner which we have
adverted to above, there is nothing on record to suggest that he is likely to
commit an offence under the NDPS Act while on bail.
14. For the reasons aforestated we are of the view that the restriction in
Section 37 of the NDPS Act would not apply. Assessing the nature and
gravity of the alleged offence and the material on record and also in view of
the fact that the petitioner has been in custody since February 23, 2021, we
are of the view that the petitioner qualifies for bail but on stringent
conditions.
15. Accordingly, we direct that the petitioner, namely, Rakesh Singh @
Rakesh Kumar Singh shall be released on bail upon furnishing a bond of
Rs. 1,00,000/-, with four sureties of Rs. 50,000/- each, two of whom must
be local, to the satisfaction of the Learned Judge, Special Court under the
NDPS Act, Alipore, South 24 Parganas, and on further condition that he
shall report to the Officer-in-Charge of the concerned police station once in a
week until further orders. The petitioner shall appear before the trial Court
on every date of hearing until further orders and shall not intimidate the
witnesses and/or tamper with evidence in any manner whatsoever. He shall
not travel outside West Bengal without the prior leave of the Trial Court and
shall surrender his passport before the learned Trial Court immediately. The
petitioner shall fully cooperate with the Investigating Authority in case of
further investigation, if any.
16. In the event, the petitioner fails to adhere to any of the conditions
stipulated above without justifiable cause, the trial court shall be at liberty
to cancel the petitioner's bail in accordance with law without further
reference to this court.
17. The application for bail is, accordingly, allowed.
18. CRM No. 3152 of 2021 is accordingly disposed of.
19. Urgent certified website copy of this judgment, if applied for, be
supplied to the parties upon compliance of necessary formalities.
(BIVAS PATTANAYAK, J.) (ARIJIT BANERJEE, J.)
