State Of West Bengal vs Baki Billa Gazi @ Billu & Othrs
2022 Latest Caselaw 754 Cal

                                        1


                   IN THE HIGH COURT AT CALCUTTA

                  (Criminal Miscellaneous Jurisdiction)



Present:

The Hon'ble Justice Debangsu Basak

            And

The Hon'ble Justice Bibhas Ranjan De

                             C.R.M 6319 of 2021

                             State of West Bengal

                                       Vs

                         Baki Billa Gazi @ Billu & othrs.



For the State/ Petitioner              : Mr. Saswata Gopal Mukherji, Ld. PP

                                        : Mr. Sanjay Bardhan

                                         : Mr. Ranadeb Sengupta



For the Opposite Party                   : Mr. Aniruddha Bhattacharyya




Heard on                                : February 3, 2022

Judgment on                              : February 23, 2022
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Bibhas Ranjan De, J.:-

1.

This is an application for cancellation for bail under Section 439 (2) of the

Code of Criminal Procedure, 1973, challenging the order dated 06.03.2021

passed by the Ld. Special Judge, Bench 1, Narcotic Drugs and

Psychotropic Substances Act, 1985, (hearinafter referred to as NDPS Act,

1985), City Sessions Court at Calcutta in connection with NDPS case no. 43

of 2019 arising out of Special Task Force (hearinafter referred to as STF)

police station case no.38 of 2019 dated 14.10.2019 under Section 22(c)/29

of NDPS Act, thereby allowing prayer for bail of the opposite parties.

2. On 13.10.2019 following a source information complainant along with

other members of the raiding party conducted a raid near Chingrighata

crossing near E.M. Bypass. They apprehended and detained the opposite

parties and another person namely Aktarul Gazi. After compliance the

relevant provisions of the NDPS Act, 1985 the accused was searched and

2.182 kgs, 2.692 kgs and 1.102 kgs of 'Amphetamine/Yaba Tablets' were

recovered and seized from their exclusive possession. After compliance of

due process during interrogation the apprehended persons disclosed the

name of opposite party no 3 and others as their associates.

3. Pursuant to the disclosure statement, the opposite party no.3 and one

Syeed Sahid Ahamed @ Sakil Ahmed were arrested on 17.10.2019. On being

searched 670 grams and 449 grams of 'Amphetamine/Yaba Tablets' were

recovered and seized from their exclusive possession, after compliance of

due process. During investigation the names of Md. Abbas Khan @

Saradand Md. Ziour Rahaman have been disclosed. Both of them were

arrested on 19.10.2019. On being searched 5.662 kgs of

'Amphetamine/Yaba Tablets' was recovered and seized from them after

compliance of due process.

4. After investigation charge sheet being no C.S No. 23/ 2020 dated

08.04.2020 under Section 22(c)/ 29 of the NDPS Act, 1985 against the

opposite parties and other four persons. In the charge sheet there was a

prayer for continuance of investigation with a view to submit charge sheet

on receipt of the pending chemical examination report. Due to suspension of

normal Court functioning for Covid-19 the charge sheet was actually filed

before the Ld. Chief Metropolitan Magistrate, Calcutta on 09.04.2020 i.e well

within the statutory period.

5. On15. 07.2020 copy of the chemical examination report was filed before

the Ld. Judge, Bench -I, City Sessions Court, NDPS Act, Calcutta and Ld.

Judge to cognizance of the same on 19.08.2020.

6. On receipt of a hard copy of chemical examination report, the

investigating Officer submitted a supplementary charge sheet being no C.S

No. 08/2021 dated 24.02.2021 under Section 22 (c)/ 29 of the NDPS Act,

1985 against opposite parties and four others. And on the same date i.e

on24.02.2021 Ld Judge passed an order directing the supplementary charge

sheet be kept as a part of the record.

7. On 06.03.2021 Ld. Judge was pleased to allow the prayer for bail of the

opposite parties on the ground that charge sheet was submitted on

09.04.20220 but cognizance was not taken and also on ground that no

petition was preferred from the side of the prosecution following the

procedure prescribed under Section 36A (4) of the NDPS Act, 1985, with a

prayer for extension of period for submission of the charge sheet.

8. On 06.03.2021 Ld. Judge at the time of granting bail to the opposite

parties made an observation as follows:

"Order No.53 dated 06.03.2021

Record is put up today.

Bail petition filed or the accused persons namely Md. Ali Ahamed, Baki Billa [email protected] Billu and Md. Nawaz Khan @ Md. Raju are taken up together for hearing.

Perused all the petitions in the perspective of the allegation labeled against the accused persons.

Perused also the case record and the CD.

Heard Ld. Advocate of both sides at length.

Ld. Advocate appearing on behalf of the accused persons advanced argument that in this case initially I.O submitted charge sheet against the accused persons within the statutory period of 180 days without any chemical expert report and as such this Court was not pleased enough to take cognizance. Subsequently, the I.O submitted supplementary charge sheet U/s 173(8) Cr.P.C along with the chemical expert report.

Interestingly, in this case no petition was filed U/s 36A (4) of NDPS Act from the side of prosecution for extension of time.

Accordingly, the accused persons are entitled to have statutory bail for non filing the

complete charge sheet well within the statutory period.

Strong objection is raised from the side of the prosecution contending inter alia that more than commercial quantities of Yaba tablet was alleged to have been recovered from the possession of the accused persons.

That apart, accused persons namely Md.

Nawaz Khan @ Md. Raju and Md. Ali Ahamed are the residents of Manipur. Possibilities of these accused persons being absconded cannot be ruled out if they are released on bail at this stage.

Ld. PP in charge honestly submits that no petition was filed from the side of the prosecution U/s 36A(4) of NDPS Act for extension of time to continue the investigation.

Having heard the submission of both sides and after careful perusal of the case record including the decisions reported in CRR No. 791/16 dated 23.04.2016 Hon'ble High Court, Punjab and Haryana, CRM No. 3929/20 dated 10.08.2020 of Hon'ble High Court, Calcutta, CRM No. 7847/20 dated 24.12.2020 of Hon'ble High Court, Calcutta, CRM No.5708/18 dated 10.08.2018 of Hon'ble High Court, Calcutta and (2009) 17 Supreme Court Cases 631 dated 20.08.2009 of Hon'ble Supreme Court of India, this Court is of the view that in order to have the benefit of Section 173 (8) Cr.P.C for filing supplementary charge sheet prosecution is to follow strictly the guideline of NDPS Act by filing a petition U/s 36A (4) of NDPS Act for extension of time.

It is fact that in this case no such petition was filed from the side of the prosecution praying for extension of time in compliance with the statutory provision under NDPS Act.

It is fact that initially, I.O submitted charge sheet against the accused persons well within the period of 180 days but the said charge sheet was filed without having any chemical expert report.

Subsequently, I.O submitted supplementary charge sheet along with the chemical expert report.

When investigation of a case is conducted under special statute strict compliance of that special statute should be followed for having the benefit of Cr.P.C U/s 173 (8). This compliance is found lacking in this case.

So far as the merit of this case is concerned, allegation is that more than commercial quantities of Yaba tablet was recovered from the possession of the accused person. Strict compliance is also necessary for having the benefit of Section 37 of NDPS Act which bars to release on bail of the accused persons committed offence under this Act involving commercial quantities. In this case no such statutory guideline is followed from the side of the prosecution.

Moreover, the accused persons are in J.C for a considerable period of time since 13.10.2019. It is fact that the accused persons namely Md. Nawaz Khan @ Md. Raju and Md. Ali Ahamed are the residents of Manipur. So, a question may arise about their regular attendance before Court if

released on bail at this stage. The case is ready for beginning of the trial by consideration of charge.

Under the aforesaid facts and circumstances and in view of discussions above accused persons namely Baki Billa Gazi @ Billu, Md. Nawaz Khan @ Md. Raju and Md. Ali Ahamed may find interim bail till 20.04.2021 on furnishing bond of Rs.

40,000/- each with two sureties of 20,000/- each of whom one must be local having landed property along with R.O.R (L.R) on further condition that accused person namely Md. Nawaz Khan @ Md.

Raju and Md. Ali Ahamed shall not leave the jurisdiction of STF PS without permission of this Court and both the accused persons shall meet O.C, STF PS twice in a week and accused Baki Billa Gazi @ Billu shall meet O.C, STF PS twice in a week until further order subject to the satisfaction of Ld. Chief Metropolitan Magistrate, Calcutta i.d to J.C till date.

If on bail to date for appearance.

CD be returned.

Bail petitions are thus disposed of.

Copy of this order be sent to the Court of Ld.

Chief Metropolitan Magistrate, Calcutta and O.C, STF PS, Calcutta for intimation.

Today in terms of prayer of the prosecution I.O is permitted to dispose of the mother exhibits according to law except sample exhibits."

9. The impugned order passed by Ld. Judge shows that Ld. Judge allowed

interim bail till 20.04.2021 on the ground that though charge sheet was

submitted within the statutory period of 180 days, it was without any

chemical expert report and thereby no cognizance was taken. Subsequently,

I.O submitted supplementary charge sheet under Section 173(8) Criminal

procedure Code along with chemical expert report. Ld. Judge further

observed that no petition was ever filed under Section 36A (4) of the NDPS

Act, 1985.

10. Firstly, on 25.02.2021 a bail petition was filed on behalf of opposite

party no. 2 and on 26.02.2021 another bail application was filed on behalf

of accused/opposite party no. 1 and 3. Thereafter, on 06.03.2021 record

was put up on behalf of all the accused/opposite parties for hearing and

interim bail was granted in favour of all accused/opposite parties till

20.04.2021. From the impugned order it appears that Ld. Judge did not

mention the restrictions envisaged in section 37 of the NDPS Act, 1985

though this case involves more than commercial quantity of contraband

articles within the meaning of NDPS Act, 1985.

11. Mr. Saswata Gopal Mukherji, Ld. Public Prosecutor appearing on behalf

of the state has contended that after filing of charge sheet well within the

statutory period of 180 days, there is hardly any question of right to default

bail. Mr. Mukherji, submitted that the Ld. Judge did not consider the

statutory restrictions under Section 37 of the NDPS Act and came to his

finding erroneously. He has prayed for cancellation of bail under Section

439 (2) of criminal Procedure Code, 1973 and also for setting aside of the

order dated 06.03.2021. In support of his submission he relied on a case M.

Ravindran vs. Intelligence Officer Directorate of Revenue Intelligence

(2021) 2 SCC 485 and Union of India vs Rattan Mallick (2009) 2

Supreme Court cases 624.

12. Per contra, Mr. Aniruddha Bhattacharyya, Ld. Counsel appearing on

behalf of the opposite parties has submitted that though charge sheet was

filed within statutory period the same was without the chemical examination

report showing the seized articles to be under the NDPS Act. He has further

submitted that the charge sheet without chemical examination report

cannot be termed as charge sheet within the meaning of the Act as

cognizance cannot be taken.

13. The issue of determination before this Court: Whether petitioners, in

the facts and circumstances of this case, are entitled to the statutory bail

under Section 36A(4) of the NDPS Act, 1985.

14. In dealing with the impugned order dated 06.03.2021 we find that Ld.

Judge allowed the statutory bail to the accused/opposite parties involving

an offence under Section 22(c)/ 29 of the NDPS Act. From the annexures

filed along with the petition under Section 439(2) of Criminal Procedure

Code we find that on 17.08.2020 Ld. Special Judge received the charge

sheet sent through Ld. Chief Metropolitan Magistrate and on 19.08.2020

Investigation Officer has submitted a copy of chemical expert report and Ld.

Judge took cognizance of the offence. Thereafter on 24.08.2020 bail

application was filed on behalf of the accused/opposite parties before the

Ld. Judge, Special Court. From the order no. 40 dated 24.08.2020 it is

found that Ld. Public Prosecutor submitted that the charge sheet was filed

on 08.04.2020 before Chief Metropolitan Magistrate, Calcutta due to lock

down for covid-19. On perusal of order 40 dated 24.08.2020 it is found that

one bail application was filed on 24.08.2020 and prior to that chemical

examination report was filed before the Ld. Judge on 19.08.2020 and

cognizance was taken.

15. In M. Ravindran (supra) the Hon'ble Apex Court clearly explained the

meaning of 'default bail' under Section 167(2) of Criminal Procedure Code. It

was observed that once the right to default bail has become indefeasible by

filling an application when the right accrues, it continues, irrespective of

pendency of bail application, or subsequent filling of charge sheet,

additional complaint or public prosecutor's report seeking extension of time.

Thereby, it has been observed that when right to default bail accrues and

bail petition is filed subsequent to filling of charge sheet or prayer for

extension of time under Section 36A (4) NDPS Act, cannot stand in the way

of granting default bail even if charge sheet or prayer for extension of time

under Section 36A (4) of the NDPS Act is filed pending application for default

bail. On the other hand, Hon'ble Apex Court held that when right to default

bail accrues but petition for bail is not filed and subsequently charge sheet

or report seeking extension of time is granted by the Court, right to default

bail would be extinguished. Observations of the Hon'ble Apex Court is set

out below:-

" 25.2. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution before the court; or filing of the charge-sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher court.

25.3. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, at the case may be, though the accused may still be released on bail under other provisions of the CrPC."

16. In Rattan Mallik's case (supra) Hon'ble Apex Court dealt with the

mandatory requirements of Section 37(1)(b) of the NDPS Act, 1985. In that

case relevant observation of the Hon'ble Apex Court is set out bellow:

"12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are

cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds."

13. The expression "reasonable grounds" has not been defined in the said Act but means something more than prima facie ground. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act."

17. From copy of orders passed by Ld. Judge it appears that by order no. 39

dated 19.08.2020 cognizance was taken by the Ld. Special Judge on receipt

of chemical expert report. It is an admitted position that charge sheet was

filed well within a statutory period. From the later order dated 24.08. 2020

by order no. 40 on behalf of accused/opposite party no. 1 filed one bail

application along with a put up petition and Ld. Judge kept the petition in

the record. From the Order no. 45 dated 14.09.2020 it appears that Ld.

Judge considered and rejected the prayer bail of accused/opposite party no.

1. Again on behalf of accused/opposite party no.1 one bail petition was filed

on 21.09.2020 along with a put up petition. Order no. 38 dated 10.12.2020

shows that bail petition on behalf of accused/opposite party no. 1 was not

pressed. Again order no. 39 dated 21.12.2020 it appears that Ld. Counsel

appearing on behalf of accused/opposite party no. 1 and opposite party no.

2 filed two separate bail petitions on their behalf. By the order no. 44 dated

27.01.2021 Ld. Judge took up the bail petition filed on behalf of

accused/opposite party no. 1 and opposite party no. 3 for hearing and

rejected bail applications filed on 21.09.2020. Order no. 46 dated

08.02.2021 it is found that another bail application was filed on behalf of

accused/ opposite party no. 3 and that application was taken up for hearing

on 12.02.2021 and Ld. Judge by his order no. 48 dated 12.02.2021 rejected

the bail application. Order no. 49 dated 24.02.2021 shows that Investigation

Officer submitted supplementary charge sheet being no. 08/2021 dated

24.02.2021 along with chemical examination report and that was kept in

the record. Order no. 50 dated 25.02.2021 it is found that one bail

application on behalf of accused/opposite party no. 2 was filed along with a

put up petition and further date was fixed on 06.03.2021 for hearing of bail

application. In the mean time on 26.02.2021 again two bail petitions were

filed on behalf of accused/opposite party no. 1 and 3 and hearing was fixed

on 06.03.2021. On 06.03.2021 all three opposite parties were granted bail

on the ground their entitlement to have statutory bail for non filing of

complete charge sheet within statutory period.

18. According to ratio of the decision in M. Ravindran (supra) we find that

under the NDPS Act accused being involved in a case of possession of

contraband articles of commercial quantity shall have to exercise his right to

default bail after the statutory period is over and before filing of charge

sheet. Hon'ble Apex Court held that when right to default bail accrues and

bail petition is not filed and subsequently charge sheet is allowed to be filed

or report seeking extension of time is granted by the Court, right to default

bail would be extinguished. In our case, we find that bail applications

considered by the Ld. Judge were filed not only after the submission of

charge sheet but also after taking cognizance of the offence by the Ld. Judge

on receipt of the chemical expert report. Therefore, right to default bail stood

extinguished prior to the filing of the bail petition on behalf of all the three

opposite parties.

19. In the afore-extracted view, it is clear that Ld. Judge before granting bail

to the opposite parties on 06.03.2021 i.e even after taking cognizance

cannot ignore the mandatory restrictions envisaged in Section 37 of the

NDPS Act, 1985. On careful scrutiny of the impugned order dated

06.03.2021 we do not find any discussion on the restrictions under Section

37 of the NDPS Act, 1985 which is sine qua non before granting bail to any

accused involving offence under Section 19 or Section 24 or Section 27A and

also for the offence involving commercial quantity.

20.On the above score order no.53 dated 06.03.2021 passed in NDPS case

no. 43 of 2019, arising out of STF Police Station case no. 38/ 2019 dated

14.10.2019 under Section 22(c)/ 29 of the NDPS Act, 1985, is not

sustainable in law and is liable to be set aside.

21. Accordingly, we allow the application for cancellation of bail under

Section 439(2) of the Criminal procedure Code. Petitioners are directed to

surrender to the custody within one week of the date of this order, failing

which the jurisdictional Court will take appropriate steps for their arrest.

22. CRM 6319 of 2021 is disposed of.

[BIBHAS RANJAN DE, J.]

23. I Agree.

[DEBANGSU BASAK, J.]