Manotosh Ghosh vs The State Of West Bengal
2021 Latest Caselaw 5546 Cal

                IN THE HIGH COURT AT CALCUTTA
             CRIMINAL MISCELLANEOUS JURISDICTION
                         APPELLATE SIDE


The Hon'ble JUSTICE HARISH TANDON
     And
The Hon'ble JUSTICE BIBEK CHAUDHURI

                           C.R.M 1761 of 2021

                             Manotosh Ghosh
                                    Vs.
                          The State of West Bengal

    For the Petitioner:    Mr.Sudipto Maitra, Adv.,
                           Mr. Syed Shahid Imam, Adv.,
                            Mohammad Khairul, Adv.,
                           Ms.Shaika Khan, Adv.

    For the State:         Mr. Saswata Gopal Mukherjee, Ld.PP,
                           Mr. Sanjoy Bardhan, Adv.,
                           Ms. Manisha Sharma, Adv.

                                 With
                           CRM 3207 of 2021

               Soham Kumar Yadav @ Kush Kumar Yadav & Anr.
                                 Vs.
                      The State of West Bengal

    For the Petitioner:    Mr.Sudipto Maitra, Adv.,
                           Mr. Syed Shahid Imam, Adv.,
                            Mohammad Khairul, Adv.,
                           Ms. Shaika Khan, Adv.

    For the State:         Mr. Saswata Gopal Mukherjee, Ld.PP,
                           Mr. Sanjoy Bardhan, Adv.,
                           Mrs. Baishakhi Chatterjee, Adv.
                                     2




                                     With

                              CRM 3754 of 2021

                  Asim Mridha @ Asim Mritha @ Asim Midha
                                   Vs.
                          The State of West Bengal

      For the Petitioner:     Mr. Sekhar Kr. Basu, Sr. Adv.,
                              Mr. Soubhik Mitter, Adv.,
                              Ms. Rajnandini Das, Adv.,
                              Ms. Arushi Rathore. Adv.


      For the State:          Mr. Y.J Dastoor, Ld. A.S.G.,
                              Mr. Phiroze Edulji, Adv.,
                              Ms. Anamika Pandey. Adv.

Heard on: September 27, 2021.
Judgment on: October 08, 2021.

BIBEK CHAUDHURI, J. : -

      The petitioners in abovementioned two cases prayed for their

release on bail under Section 439 of the Code of Criminal Procedure.

Though the facts of the abovementioned two cases are little different, but

in view of similar questions of law being involved in both the cases, we

prefer to take up both the applications together for hearing and propose to

dispose them by passing the following order:-

Facts

CRM 1761 of 2021

Accused Monotosh Ghosh was arrested on 24th May, 2020 while

possessing codeine mixture above commercial quantity by the Police

attached to Habra P.S. The contraband articles were seized by S.I Pratik

Basu observing all formalities. Subsequently, investigation culminated in

filing charge-sheet under Section 21(b)(ii)(c) of the Narcotics Drugs and

Psychotropic Substance Act, 1985 (NDPS Act for short).

It is alleged by the petitioner that she he was falsely implicated in

this case. The case record reveals that the arresting officer didnot follow

mandatory provisions of search and seizure of narcotics substance as per

the provisions of the NDPS Act. Therefore, he is entitles to be released on

bail.

CRM 3207 of 2021

The petitioners were apprehended by Police at a place, named,

village Akchhar within Gangarampur P.S while they were trying to flee

away riding on a motor cycle. The on duty Police Officer conducted search

and found 650 nos. of Yuba tablets from their joint possession. Since no

Executive Magistrate was available at the time of search and seizure, I.C

Gangarampur P.S was requested to be present at the time of search and

seizure of contraband articles. Accordingly, those tablets were seized in

presence of I.C Gangarampore P.S. According to the petitioner, nothing

was seized from them. They are cloth merchants. Charge-sheet has been

submitted against them. The investigating authority did not comply with

the mandatory requirement of search and seizure contained in Section 42

of the NDPS Act. Therefore, they are entitled to bail.

CRM 3754 of 2021

The petitioner was arrested by the officers attached to the Narcotics

Control Bureau (NCB) in connection with case no. N53/2021 on the basis

of a complaint to the effect that on 7th April, 2021, NCB, Kolkata Zonal

Unit received an information that one Susanta Dey @ Ravi and one Manik

Das were carrying ganja above commercial quality by a vehicle bearing no.

WB 25J- 4944. The said contraband articles would be stored in the house

of Susanta in order finally to deliver the same to the petitioner. The NCB

personnel under the Leadership of the Superintendent, NCB, KZU

conducted raid in order to work out the said information and

apprehended two persons, namely, Susanta Das @ Ravi and Swapan

Biswas (driver) who were engaged in unloading sacks full of contraband

and storing them in the house of Swapan. They conducted search and

seizure in respect of the contraband articles in presence of independent

witnesses and arrested the abovenamed two accused persons.

Subsequently, the house of Manik Das was raided but no contraband

article was recovered. A notice under Section 67 of the NDPS Act was

served upon the petitioner. His house was searched but no incriminating

article was found from his house. However, he was arrested only on the

basis of the statement of the co-accused which is inadmissible in

evidence. The petitioner has prayed for bail on the ground of his long

incarceration.

SUBMISSION ON BEHALF OF THE PETITIONER

Mr. Sudipta Moitra, Learned Advocate appearing on behalf of the

petitioner of CRM no. 1761 of 2021 submits that clause (c) of sub-Section

(2) of Section 52A of the NDPS Act mandatorily enjoins a duty upon the

Officer notified under sub-Section (1) to prepare an inventory of seized

narcotics drugs or psychotropic substance relating to their description,

quality, quantity, mode of packing, marks, numbers or such identifying

particulars for the purpose of

(a) Certifying the correctness of the inventory as prepared; or

(b) Taking, in the presence of such Magistrate, photographs of such

drugs or substances and certifying such photographs as true; or

(c) Allowing to draw representative samples of such drugs or

substances, in the presence of such Magistrate and certifying the

correctness of any list of samples so drawn.

In the instant case, it is clear from the copies of documents which

the petitioner received under Section 207 of the Code of Criminal

Procedure that samples of the alleged seized contraband articles were not

taken in presence of the Magistrate and there is no certification issued by

the jurisdictional Magistrate to such effect. Thus, non-compliance of

provisions of Section 52A of the NDPS Act vitiates the search and seizure

and detention of the petitioner on the basis of illegal search and seizure is

not warranted. In support of his argument, he relies on a decision of the

Division Bench of this Court in the case of Munna Nai vs. The State,

1997 Cri.L.J 4553 (Cal). On the self same score, Mr. Moitra also refers to

the decisions of the Hon'ble Supreme Court in the case of Gorakh Nath

Prasad vs. State of Bihar, AIR 2018 SC 704 and Kuldeep Singh vs.

State of Punjab, 2011 Cri.L.J 2672 (S.C).

Learned Advocate for the petitioners in CRM 3207 of 2021 has

adopted the submission made by Mr. Moitra, learned Counsel for the

petitioner in CRM 1761 of 2021. It is further submitted by him that the

petitioners were apprehended on 17.08.2020 on the allegation of having

joint possession of 650 nos. of Yuba tablets. As per the prosecution case,

the said contrabands were seized by police immediately after

apprehension of the petitioners. But the Inspector-in-Charge of

Gangarampur P.S made a prayer before the jurisdictional Magistrate way

back on 23rd September, 2020 for fixing a date for certification of

correctness of inventory, photograph and samples of seized articles. The

learned Magistrate fixed 6th November, 2020 for certification of inventory

and sample. According to the learned Counsel for petitioners, requirement

of Section 52A is not a mere formality. It requires to be done at the

earliest after seizure of narcotics substance. When certification was made

by the learned Magistrate after about three months from the date of

seizure of contrabands, compliance of Section 52A becomes suspect.

Mr. Sekhar Kumar Basu, learned Senior Advocate on behalf of the

petitioner in CRM 3754 of 2021 submits that the petitioner was arrested

on the basis of the statement made by the co-accused persons. The

prosecution strongly relies upon call details report (CDR) between the

petitioner and principal accused persons, but in the event CDRs are not

retrieved, the same cannot be used against the petitioner. No

incorporating material was seized from him. Therefore, he should be

released on bail.

PER CONTRA

Mr. Saswata Gopal Mukhapaddhay, learned Public Prosecutor on

the other hand submits that Section 52A of the NDPS Act has no bearing

with regard to the procedure of search and seizure of the contraband. The

said section stipulates a provision for disposal of seized narcotic drugs

and Psychotropic substance having regard to the hazardous nature, the

vulnerability to theft, substitution, constraint of proper storage space etc.

It is further submitted by the learned Public Prosecutor that for non-

compliance of Section 52A of the NDPS Act, no prejudice is caused

against the accused. Referring to a decision of this Court in the case of

Abdul Hossain Mahammad vs. Department of Customs (CRA No.488

of 2016) decided on 27th February, 2020). The learned Public

Prosecutor submits that non-compliance of Section 52A of the NDPS Act

does not entitle the petitioner to get a favourable acquittal. It is submitted

by him that judgment in Abdul Hossain Mahammad (supra) was passed

in appeal.

At the stage of consideration of prayer for bail, the Court cannot go

through such question which requires to be decided on the basis of

evidence adduced by the parties.

With regard to non-compliance of Section 42 of the NDPS Act, it is

submitted by the learned Public Prosecutor that applicability of Section

42 may be under question in CRM 3754 of 2021 as against accused

Susanta De @ Rabi. Section 42 is invokable only if search is made by

police officer or authority concern, upon prior information. When such

information or intimation or knowledge comes to the notice of the

Investigating Officer in course of regular patrolling or investigating of

some other offence, it is necessary to follow the conditions incorporated in

Section 42.

The learned Public Prosecutor also relies on paragraph 16 of the

decision of the Hon'ble Supreme Court in Surinder Kumar vs. State of

Punjab, (2020) 2 SCC 563 which states as follows:-

In State (NCT of Delhi) v. Sunil reported in (2001) 1 SCC 652, it was held as under.

"It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Courts cannot start with the presumption that the police records are untrustworthy. AS a presumption of law, the presumption would be the other way that official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature".

In respect of CRM 1761 of 2021 it is submitted by the learned

Public Prosecutor that search and seizure of contraband substance,

having been made at a public place by the empowered officer, Section 43

is attracted and therefore, compliance with Section 42 is not required. In

support of his contention he relies on the decision of the Hon'ble Supreme

Court in the case of Mohan Lal vs. State of Rajasthan reported in (2015)

6 SCC 222. It is further submitted by him that the decisions of Munna

Nai (supra), Gorakh Nath (supra) and Kuldeep Singh (supra) are not

applicable at the stage of consideration of applications under Section 439

of the Cr.P.C.

The learned Public Prosecutor also refers to the orders passed by a

Coordinate Bench in CRM 9162 of 2020 dated 24th December, 2020. It is

observed by a Coordinate Bench in the aforesaid order that Section 52A of

the NDPS Act enjoins mandatory destruction of seized narcotic substance

and use of certificate issued by appropriate magistrate as prima facie

proof in lieu of physical production of seized articles. Such procedure has

been declared mandatory in Union of India vs. Mohanlal, (2016) 3 SCC

379. The Coordinate Bench also observed that the procedure engrafted in

Section 52A is a post seizure exercise to ensure prompt destruction of

narcotic substance so that seized material may not be misused.

Mr. Y.J. Dastoor, learned Additional Solicitor General, on the other

hand draws our attention upon the mobile phone call details to show that

on the date of occurrence and immediately prior and also subsequent to

the occurrence, series of phone calls were exchanged between the

petitioner and the arrested accused persons. The call details prima facie

show that the petitioner was involved in a deep rooted conspiracy in

dealing with narcotic substances.

DECISION

Having heard the learned Counsels for the petitioners and the State

and on careful perusal of the case diary in respect of the above mentioned

cases separately we feel it necessary to clarify at the outset that we are

inclined to have a detailed exercise as to the applicability and due

performance of the conditions imposed in Sections 42, 43 and 52A of the

NDPS Act in view of the conflicting orders passed by the Coordinate

Benches of this Court. In CRM 3068 of 2021 vide order dated 9th August,

2021, this Court refused to grant bail to the accused/petitioner on the

ground of conspiracy considering the call details between the petitioner

with the principal accused. A Coordinate Bench vide order dated 17th

July, 2021 in CRM 10765 of 2020 granted bail to the accused relying on

the judgment by the Hon'ble Supreme Court in the case of Tofan Singh

vs. Tamil Nadu (2020) SCC Online 882. Relying on Tofan Singh (supra)

another Coordinate Bench granted bail to the accused vide order dated

21st December, 2020 in CRM 8145 of 2020. Again in CRM 2829 of 2020 a

Coordinate Bench vide order dated 20th October, 2020 refused the prayer

for bail on the basis of call details between the petitioner and other

accused persons soon before the incident.

In respect of CRM 3754 of 2021, we have come across call details

report between the petitioner and the principal accused. It is true that the

calls between the petitioner and the principal accused were not retrieved

by the Investigating Officer therefore the nature of conversation between

them cannot be ascertained.

At this stage the question that is required to be adjudicated upon is

as to whether failure on the part of the Investigating Officer in retrieving

the call details should be taken as a ground for granting bail to the

accused or not. In Union of India through Narcotics Control Bureau,

Lucknow vs. Md. Nawaz Khan (Criminal Appeal No.1043 of 2021

arising out of SLP (Crl) No.1771 of 2021), judgment delivered on 22nd

September, 2021, the Hon'ble Supreme Court was pleased to hold that

CDR analysis of the said mobile number used by the respondent indicates

that the respondent was in regular touch with the other accused persons

who were know to him. In this case also it is prima facie established from

the call details report (CDR) that the petitioner was in constant touch with

the principal accused person. This circumstance is crucial while

considering the application for bail of the petitioner in CRM 3754 of 2021,

having regard to the provisions of Section 37 of the NDPS Act. There is no

scope to take a contrary view from the ratio laid down in Tofan Singh

(supra) that a statement recorded under Section 67 of the NDPS Act is not

admissible in evidence, but even without considering the statement

recorded under Section 67 of the NDPS Act, call details report is one of

the prima facie grounds on petitioner's involvement in the offence under

Section 20(B)(2)(C)/29 of the NDPS Act.

In respect of CRM 1761 of 2021 we are of the considered view

relying on the decision of the Hon'ble Supreme Court in Md. Nawaz Khan

(supra) that the contention that Section 42 of the NDPS Act was not

complied with his prima facie misplaced. The materials in case diary

reveals that the accused was arrested with codeine mixture above

commercial quantity on 25th May, 2020 on that date itself the sample was

taken in presence of the learned Chief Judicial Magistrate, Barasat for

scientific examination. Moreover, the accused was arrested from Jaygachi

Bus Stand and compliance of Section 42 of the NDPS Act is not at all

necessary. Under the facts and circumstances of the case Section 43 of

the NDPS Act is applicable. Moreover, the question as to whether Section

42 or 52(A) of the NDPS Act was complied with or not is a question of fact

which requires to be decided at the time of trial.

On the same reason we do not find any merit in CRM 3207 of 2021.

It is also a question of fact as to whether substantial delay in taking

inventory, photograph and samples of seized articles as contemplated in

Section 52A of the said Act would vitiate the trial or not. This question

can only be decided during trial on the basis of evidence on record.

CONCLUSION

For the reasons stated above CRM 1761 of 2021, CRM 3207 of 2021

and CRM 3754 of 2021 are rejected and prayers for bail of the petitioners

are refused.

I agree,



(Harish Tandon, J.)                        (Bibek Chaudhuri, J.)