Calcutta High Court (Appellete Side)
Morjem Mondal vs The State Of West Bengtal on 31 January, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
C.R.M. (NDPS) 25 OF 2022
MORJEM MONDAL
VS.
THE STATE OF WEST BENGTAL
For the petitioner : Mr. Debarshi Brahma
For the State : Mr. Ranadeb Sengupta
Heard on : 31.01.2022
Judgment on : 31.01.2022
Court:
Petitioner seeks bail.
Learned advocate appearing for the petitioner draws the
attention of the Court to the seizure list. He highlights the
absence of independent witnesses in the seizure list. He relies
upon CRM 907 of 2019 dated January 21, 2019 and submits
that, since no independent witness was there at the time of the
alleged recovery, the petitioner was held to overcome the
restrictions under Section 37 of the Narcotic Drugs and
Psychotropic Substances Act (NDPS Act), 1985. In similar
vein he relies upon CRM 5799 of 2021 dated December 16,
2021. In the present case he submits that, the alleged recovery
was made at Madhupur Ghat at 10.30 night without any
independent witness.
Learned advocate appearing for the State relies upon a
report dated January 30, 2021 of the Officer-in-Charge of the
concerned police station. He submits that, Madhupur Ghat,
given its location, is deserted at 10.30 P.M. He draws the
attention of the Court to the contents in the First Information
Report which provides explanations for the absence of
independent witnesses.
When a petitioner is seeking bail in respect of an offence
attracting the provisions of the NDPS Act, 1985, such
petitioner is required to overcome the restrictions under
Section 37 of the NDPS Act, 1985. In the present case, the
petitioner seeks to overcome the restrictions on the strength of
absence of independent witnesses at the time of the alleged
recovery.
In CRM 907 of 2019 dated January 21, 2019, the Co-
ordinate Bench considering the materials in the case diary and
considering the fact that the recovery was made from a place
which was not in the custody of the petitioner noticing the
absence of the independent witnesses held that the petitioner
was able to overcome the restrictions under Section 37 of the
NDPS Act, 1985. In such case, the time of recovery is not
noted. In the present case, the recovery was made at 10.30 at
night factual situations are different.
In CRM 5799 of 2021 dated December 16, 2021, the Co-
ordinate Bench observed that, there was no independent
witness in the arrest memo as well as in the seizure list.
Again, the place of the seizure and the time of the seizure were
not discussed in such order. Consequently we are unable to
arrive at a finding that the factual situations are same as in
the present case.
In the facts of the present case, the seizure was made at
Madhupur Ghat at 10.30 p.m. in the night. There is a report
of the concerned Officer-n-Charge stating that Madhupur Ghat
is deserted at 10.30 P.M. with hardly any public coming and
going from such place. There is a bamboo bridge at
Madhupur Ghat which the public uses to come from
'Kalaberia' village. According to the Officer-in-Charge, the
'Ghat Caretaker' collects the fare from the public. Such 'Ghat
Caretaker' stated before the officer in charge that after 6 P.M.,
there is hardly any public coming and going from such place.
Time and place at which the seizure was sought to be
made are relevant for the purpose of considering the absence
of independent witness. There may be other accentuating
circumstances explaining the absence of independent
witnesses also. Merely because there are no independent
witness, it cannot be said with certitude that the petitioner
was falsely implicated. Official status of the witnesses, ipso
facto does not impinge upon the veracity of such witness or
render them inadmissible as witness. In the facts of the
present case, the prosecution is able to absence of prosecution
witness. In such circumstances, we are of the view that since
commercial quantity of narcotic was seized from the
possession of the petitioner, he is unable to overcome the
restrictions of Section 37 of the NDPS Act, 1985.
In view of the discussions above we are unable to grant
bail to the petitioner as prayed for. CRM (NDPS) 25 of 2022 is
rejected.
(Debangsu Basak,J.)
(Bibhas Ranjan De, J.)
