Calcutta High Court (Appellete Side)
Sudipa Biswas (Bose) vs The State Of West Bengal & Anr on 28 February, 2022
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Bibhas Ranjan De
C.R.M. 7277 OF 2021
Sudipa Biswas (Bose)
VS.
The State of West Bengal & Anr.
For the petitioner : Mr. Sanjay Banerjee
Mr. Joydeep Bhattacharjee
For the State : Mr. Sabir Ahmed
Mr. Ashok Das
For the opposite : Mr. Rabilal Maitra, Sr. Advocate
party no.2 Mr. Rajitlal Maitra
Heard on : February 28, 2022
Judgment on : February 28, 2022
DEBANGSU BASAK, J.:-
1. Petitioner seeks cancellation of bail granted by the jurisdictional
Court on June 10, 2021. Affidavits filed by the parties in Court be
taken on record.
2. Learned Advocate appearing for the petitioner submits that the
police complaint against the private opposite party involved the
provisions of the Narcotic Drugs and Psychotropic Substances Act,
1985 with commercial quantity of narcotics being seized from the
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possession of the private opposite party. The jurisdictional Court
ought to have taken into consideration the provisions of Section 37
of the Act of 1985 while granting bail to the private opposite party.
The jurisdictional Court did not allude to such aspect at all.
Consequently, the order granting bail can be said to be a nullity.
In support of such contentions, he relies upon (2021) 5 SCC 430
(Union of India vs. Prateek Shukla).
3. State and the private opposite party are represented.
4. Learned Advocate appearing for the State submits that the State
also filed an application for cancellation of bail granted in favour of
the private opposite party. He refers to a report of the Sub-
Inspector of police of the concerned police station. Referring to
such report, he submits that, at least sixteen cases against the
private opposite party are pending which includes cases under the
Arms Act, and the provisions of Section 302 of the Indian Penal
Code. He relies upon (2009) 2 Supreme Court Cases 624 (Union
of India vs. Rattan Mallik) in support of his contentions.
5. Learned Senior Advocate appearing for the private opposite party
submits that the private opposite party did not violate any
conditions of the order granting bail. He submits that the present
application was actuated by mala fide. The private opposite party
lodged a police complaint against the husband of the petitioner on
August 2, 2021 and, therefore, the present application.
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6. The private opposite party was proceeded against, inter alia, under
the provisions of the Act of 1985. Police seized commercial
quantity of narcotics from the possession of the private opposite
party. Consequently, in our view, provisions of Section 37 of the
NDPS Act, 1985 stand attracted in the factual matrix.
7. In Rattan Mallik's case (supra), the Hon'ble Apex Court observed
as follows:
"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
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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."
8. In Prateek Shukla's case (supra), the Hon'ble Apex Court
observed as follows:
"11. Ex facie, there has been no application
of mind by the High Court to the rival
submissions and, particularly, to the
seriousness of the allegations involving an
offence punishable under the provisions of
the NDPS Act. Merely recording the
submissions of the parties does not amount
to an indication of a judicial or, for that
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matter, a judicious application of mind by
the Single Judge of the High Court to the
basic question as to whether bail should be
granted. The provisions of Section 37 of the
NDPS Act provide the legal norms which
have to be applied in determining whether a
case for grant of bail has been made out.
There has been a serious infraction by the
High Court of its duty to apply the law. The
order granting bail is innocent of an
awareness of the legal principles involved
in determining whether bail should be
granted to a person Accused of an offence
under the NDPS Act. The contention of the
Respondent that he had resigned from the
Company, Altruist Chemicals Private
Limited, must be assessed with reference to
the allegations in the criminal complaint
which has been filed in the Court of the
District and Sessions Judge. Gautam Budh
Nagar (Annexure P-6). The relevant part of
the complaint reads as follows:
18. That during investigation of the
case, letter dated 27.11.2018 was sent
to the Registrar of Companies for
providing details of the Directors etc. of
the company in question i.e. U/s.
Altruist Chemicals Pvt. Ltd. and vide
its report dated 03.12.2018 Registrar
of Companies provided the said
information and from the perusal of
said information/documents, it reveals
that Accused Prateek Shukla and
Bismillah Khan are the Directors.
Accused Himanshu Rana was also
Director but he has resigned from the
directorship. From the perusal of the
documents, it also reveals that they
had registered the company, i.e.,
Altruist Chemical Pvt. Ltd. At 001,
Block Ab-Sector-45, Noida, which is a
residential area and Accused persons
also obtained Unique Registration No.
from the NCB on the above said
premises."
9. The order of the jurisdictional Court dated June 10, 2021 does not
allude to the provisions of Section 37 of the NDPS Act, 1985 at all.
It does not take into consideration the seizure of commercial
quantity of narcotics from the possession of the private opposite
party. It does not return a satisfaction on the twin conditions for
grant of bail under Section 37 of the Act of 1985.
10. The order dated June 10, 2021 grants bail to the private opposite
party on the ground that though the charge sheet was filed in
2019, the charges were yet to be framed. The trial is yet to
commence. It appears from the records that the private opposite
party was arrested on May 15, 2019. Charge sheet was filed on
October 31, 2019. Supplementary charge sheet was filed on March
2, 2021. There is no material on record to suggest let alone
establish that the prosecution was indolent in conducting the case.
The reason as to why the charges could not be framed is not
discussed in the order granting bail. The impact of the ongoing
pandemic in the judicial sphere cannot be discounted.
11. In view of the ratio laid down in Rattan Mallik's case (supra) and
Prateek Shukla's case (supra), we are of the view that since the
jurisdictional Court did not allude to the provisions of Section 37
of the Act of 1985 while granting bail to the private opposite party,
such order cannot be sustained. Consequently, we cancel the bail
granted in favour of the private opposite party. Private opposite
party will surrender before the jurisdictional Court within seven
days from date. In default, the jurisdictional Court is at liberty to
take appropriate steps.
12. The contention of the private opposite party that the present
petition was mala fide given the fact that the private opposite party
lodged a police complaint against the husband of the petitioner on
August 2, 2021 is of no consequence. The police complaint is
latter than the order granting bail while fundamentally the order
granting bail cannot be sustained on the touchstone of Section 37
of the Act of 1985.
13. Accordingly, the prayer for cancellation of bail is allowed.
14. C.R.M. 7277 of 2021 is allowed.
(Debangsu Basak,J.)
15. I Agree.
(Bibhas Ranjan De, J.)
