Calcutta High Court (Appellete Side)

Sonu Ansari @ Jamshed Ansri vs State Of West Bengal on 7 October, 2021

                  IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL MISCELLANEOUS JURISDICTION

Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Ananda Kumar Mukherjee



                              C.R.M. 5032 of 2021


                         Sonu Ansari @ Jamshed Ansri.
                                     -Vs-
                             State of West Bengal



For the Petitioner :          Mr. Dev Kumar Sharma, Advocate



For the State :               Mr. Ranabir Roychowdhury, Advocate
                              Mr. Rudradipta Nandi, Advocate



Heard on :                    30.09.2021


Judgment on:                  07.10.2021



Ananda Kumar Mukherjee, J. :-


   1.

This application under Section 439 of the Code of

Criminal Procedure, 1973 has been filed by the petitioner

in connection with Jagacha Police Station Case No. 108 of

2018 dated 15.07.2018, under Section 20(b)(ii)(B)(C) of the

Narcotic Drugs and Psychotropic Substances Act, 1985,

now pending before the Learned Judge, Special Court

under the N.D.P.S. Act, at Howrah.

2. Learned Advocate appearing for the petitioner has

submitted that the petitioner has been levelled falsely

implicated in this case. The allegations that have been

against him are in the abstract and since the petitioner is

under long detention without any progress in the trial, by

this petition he has renewed his prayer for bail for the

fourth time before this Court.

3. The fact of the case as it would appear from the bail

petition is that on the basis of source information 25 kg.

100 grams of ganja was allegedly seized from the

possession of the petitioner while 30 kg. 210 grams was

seized from accused Md. Shahid @ Vicky and 10 kg 200

grams from the accused Md. Chand, amounting to a total

of 65 kg 610 grams of ganja, which is commercial quantity

and that the petitioner used to sell such contraband

substance to customers.

4. Charge has been framed by the Trial Court of

07.01.2019 and during trial, which commenced on

16.01.2019 only three witnesses have been examined in

full and one examined in part. It has been submitted by

Mr. Sharma that the earlier application for bail of the

petitioner in CRM 3745 of 2019 was dismissed by this

court on 24.04.2019, the second application being CRM

3472 of 2020 along with CRAN 1777 of 2020 was rejected

as not pressed and the third bail application for the

petitioner being CRM 6617 of 2020 was rejected on

16.09.2020. It has been brought to the notice of this court

that by the order dated 16.09.2020 passed in CRM 6617 of

2020 the Court had directed the Trial Court to commence

the trial either virtually or physically within a fortnight

from the date of communication of the order and to

conclude the trial preferably within six months from the

date of order. It has been submitted that the order was

communicated to the Trial Court on 13.10.2020 but trial

has not been concluded till date. Learned Advocate for the

petitioner has further submitted that the petitioner is in

custody since 16.07.2018 and he should be released on

bail on any condition. In support of his case learned

Advocate for the petitioner has relied upon a decision of

the Hon'ble Supreme Court of India in the case of Chitta

Biswas @ Subhas vs The State of West Bengal (Criminal

Appeal No. 245 of 2020) and another decision of a co-

ordinate bench of this Court passed in CRM No. 3720 of

2021 in Re Sanjib Roy had urged that in both the cases

the petitioners were granted bail by taking into account

their long detention.

5. Mr. Roy Chowdhury, Learned Advocate for the State

has opposed the prayer for bail and strongly contented

that on consecutive occasion the prayer for bail of the

petitioner has been rejected by co-ordinate benches of this

Court. He has argued that a large haul of ganja/ cannabis

has been seized from the possession of the petitioner as

well as his accomplices and the petitioner has failed to

rebut the presumption raised against him under section

37 of the Narcotic Drugs and Psychotropic Substances

Act, 1985. He has submitted that due to a prevailing

pandemic situation, some delay occurred in the trail of the

case. Trial is in progress. Delay if any was beyond control

of the prosecution.

6. In support of his submissions learned Advocate for

the State has placed reliance upon two decisions of the

Hon'ble Supreme Court of India reported in (2009) 1 SCC

(Cri) 831 (Union of India vs. Rattan Mallik @ Habul)

and 2020 (12) SCC 122 (State of Kerala etc. vs. Rajesh

Etc.), wherein the Hon'ble Supreme Court laid emphasis

upon compliance of the mandatory provisions of Section

37 of the N.D.P.S. Act before enlarging a person on bail

who has been charged with such offence.

7. Having considered the facts and circumstances of the

case and the rival submissions advanced by Learned

Advocates for the parties, it appears to us that the only

change in circumstances since rejection of the earlier

application for bail is delay in conclusion of trial and a

longer period of detention of the petitioner. We have taken

notice of the fact that the maximum punishment for the

offence, with which the petitioner has been charged under

Section 20(b)(ii) of the N.D.P.S. Act is ten years of

imprisonment. It appears to us that the petitioner is in

custody since 16.07.2018, which is less than half of the

maximum period of sentence provided for the offence.

Therefore, the petitioner cannot avail the benefit of bail

according to the provisions of Section 436 A of the Code of

Criminal Procedure, 1973 on the ground of his detention.

Furthermore, Section 37 (1)(b) of N.D.P.S. Act has an

overriding effect on the provisions of the Code of Criminal

Procedure.

8. On an earlier occasion an order was passed by this

Court in CRM 6617 of 2020 with CRAN 1 of 2020 dated

16.09.2020, wherein the Trial Court was directed to

commence the trial and conclude the same preferably

within six months from the date of order. Learned

Advocate for the petitioner has harped upon the non

conclusion of the trial within the specified period to press

the prayer for bail. The case is pending before the learned

Judge Special Court (for Narcotic Drugs and Psychotropic

Substances Act, 1985) Howrah, being Trial No. 8 of 2018.

It was fixed on 18.06.2021 for production of accused and

evidence. The copy of order dated 18.06.2021 of the Trial

Court placed before us shows on that date the accused

was not produced from the Correctional Home and none of

the advocates appeared before the court as per resolution

of the local Bar Association. Due to such situation, the

hearing was adjourned and fixed on 09.08.2021 for

evidence. It is clear from that order that delay in trial was

caused due to non participation of the members of the Bar

Association which included the learned Advocate for the

petitioner. Therefore, the jurisdictional court cannot be

held responsible for the circumstances which prevented it

from concluding the trial. We are not unmindful of the fact

that in a trial, presence of the witness and the advocates

are necessary but the pandemic has caused deterrence to

such activity by default.

9. In the case of Chitta Biswas @ Subhas relied upon

by the petitioner, a Co-ordinate bench of this court by

order dated 30.07.2019 passed in CRM no. 6787 of 2019

has rejected the prayer for bail of the petitioner due to his

prima facie involvement in alleged joint possession of

commercial quantity of codeine mixture from the petitioner

and the co-accused person in view of the statutory

restrictions under section 37 of the N.D.P.S. Act. The

learned advocate led us through the decision in Chitta

Biswas @ Subhas vs State of West Bengal (Criminal

Appeal No. 245 of 2020), which steamed out from the

decision of this court passed in CRM no. 6787 of 2019.

The Hon'ble Supreme Court while considering the said

Appeal, granted bail to the petitioner therein without

expressing any opinion on the merits or demerits of the

rival submissions and on the facts and circumstances on

record.

10. In support of the petitioner's case, learned advocate

has also relied upon another decision of the co-ordinate

bench of this court passed in CRM no. 3720 of 2021 dated

02.06.2020 In Re: Sanjib Roy, where in a case under

section 21(b)(ii)(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985, the court relying upon the decision

of the Hon'ble Supreme Court of India and Hussainara

Khatoon- Vs.- State of Bihar, Patna, reported in 1980

1 SCC 81 and Abdul Rehman Antulay & Ors. - Vs- R.

S. Nayak & Anr., 1992 1 SCC 225 and the order passed

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

19 Virus in prisons and the judgment delivered in the case

of Shaheen Welfare Association -Vs- Union of India & Ors,

reported in (1996) 2 SCC 616] granted bail to the

petitioner.

11. We have considered the facts and circumstance of

the case as well as the decision relied upon by the

petitioner and the State of West Bengal. The jurisdiction of

the court to grant bail in a case involving seizure of

commercial quantity of contraband substance under the

N.D.P.S. Act is circumscribed by the provisions of section

37 of the N.D.P.S. Act which mandates as follows:

"(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 27A and also for offences involving 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 limitation under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail".

12. The pre-requisite for granting of bail in a case

involving commercial quantity of contraband substance is

that the court is to be satisfied about the existence of

reasonable grounds for believing that the petitioner is not

guilty of any such offence and that he is not likely to

commit any offence while on bail. The prima facie case of

seizure of commercial quantity of ganja from the

possession of the petitioner and co-accused does not

raised any presumption in favour of the petitioner to

dislodge the rigour under section 37(1)(b)(ii) of the Narcotic

Drugs and Psychotropic Substances Act. This legislative

mandate is required to be adhered to in order to effectively

control and curb any nefarious activity of trafficking and

smuggling of Narcotic Drugs and Psychotropic substances.

13. State of Kerala Etc. Vs. Rajesh Etc (2020)(12) SCC

122, relates to a Appeal prefered before the Supreme

Court challenging the discretion exercised by the Learned

Single Judge of the High Court of Kerala in granting post

arrest bail to the accused respondent without noticing the

mandate of section 37(1)(b)(ii) of the Narcotic Drugs and

Psychotropic Substances Act. The Hon'ble Supreme Court

on Appeal was pleased to set aside the order passed by the

High Court releasing the respondent on bail and observed,

"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 where 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".

14. In another decision, Union of India vs. Rattan

Mallik @ Habul (2009)(1)SCC(Cri) 831 Hon'ble Supreme

Court considered an Appeal challenging the order passed

by the High Court of judicature at Allahabad which

suspended the sentence awarded by the Trial Court in a

case under sections 8/27A and 8/29 of the N.D.P.S. Act

and granted bail to the convict. In that case the Hon'ble

Supreme Court referring to the mandate of section 37 of

the N.D.P.S Act directed that the order cannot be

sustained without compliance of the same and remitted

the matter to the High Court for fresh consideration.

15. While dealing with such prayer for bail we have