Calcutta High Court (Appellete Side)
Kartick Saha vs Unknown on 1 November, 2023
01.11.2023
24.
Court no. 8
Sd/br
In the High Court at Calcutta
Criminal Miscellaneous Jurisdiction
Appellate Side
CRM (NDPS) 1795 of 2023
In Re:- An application for bail under Section 439 of the Code
of Criminal Procedure filed on 25.10.2023 in connection with
Coke Oven Police Station Case No. 93 of 2022 dated
18.05.2022 under Sections 20(b)(ii)(c)/29 of the NDPS Act,
1985.
In the matter of : Kartick Saha ....petitioner.
Ms. Rajnandini Das
Mr. Chitrak Biswas
...for the petitioner.
Mr. P. K. Ganguly
.....for the State.
1. The petitioner seeks bail on several grounds. First, it is
argued that Section 41(2) of the N.D.P.S. Act has not been
complied with inasmuch as the officer conducting the search
and seizure was not authorized in terms of Section 41 of the
NDPS Act. That apart, the FIR was registered and complaint
made on May 18, 2022 whereas the petitioner was arrested
on the date before, that is, on May 17, 2022.
2. Out of the 14 witnesses proposed by the prosecution,
only four witnesses have been examined till date.
2
Moreover, it is argued that the sample was sent for testing to
the Botanical Survey of India which is not authorized to
conduct the relevant test under the N. D. P. S Act.
3. Learned counsel for the petitioner places reliance on a
judgement of the Supreme Court in the matter of
Hasanuzzaman & Ors. vs. the State of West Bengal as well as
a co-ordinate Bench judgment rendered in Sunil Kumar Roy
and another vs. the State of West Bengal in support of her
propositions.
4. Learned counsel for the State opposes the prayer for bail.
It is contended that out of total 11 witnesses, four witnesses
have been examined and some further time will be required
to conclude the trial. Moreover, the quantity of ganja
recovered was huge, being to the tune of 353.1kg.
5. The contravention of Section 41(2) is squarely denied by
the respondent and it is submitted that the seizure was
effected between 21:15 and 22:35 hrs. on May 17, 2022 and
as such, the formal registration of the FIR spilt over to the
next calendar date.
6. Upon consideration of the submission of the parties, we
find that while making the observation on Section 41(2) and
Section 42 of the N.D.P.S Act the co-ordinate Bench, in the
judgement cited by the petitioner, was dealing with an
appeal, which was against a final order passed after the trial
was concluded.
7. We are at present at the stage of bail and, as such, the
detailed evidence cannot be appreciated prematurely at this
stage.
8. Hence, the observations made by the co-ordinate Bench
upon a perusal of the evidence in the cited judgement of
Sunil Kumar Roy(supra) cannot be adhered to in the context
of the bail application.
9. In so far as the order of the Supreme Court passed in
Hasanuzzaman and ors (supra) is concerned, the Supreme
Court made a sweeping observation that the investigation
was completed in the said case and chargesheet had been
submitted. Moreover, the conclusion of the trial would take
some reasonable time, for which the Supreme Court
proceeded on the premise that the petitioner does not have a
criminal antecedent and substantial compliance of Section
37 of the N.D.P.S Act had taken place.
10. However, the Supreme Court, in the said judgement, did
not lay down a blanket proposition of any sort that in all
cases where trial is going on, the accused persons shall be
enlarged on bail.
11. Moreover, in the present case, there is prima facie
credibility in the prosecution case, which is the only factor to
be ascertained at this stage, in respect of the search and
seizure being during the wee hours of the night, which spilt
over to the next calendar date, explaining the successive
dates of search and seizure and registration of the FIR.
12. Insofar as the contravention of Section 41 of the NDPS
Act is concerned, the same is a disputed question of fact and
law which is to be dealt with in the trial.
13. As the trial is already in progress, we are of the opinion
that a direction to expeditiously conclude the trial would
suffice. We are not unmindful also of the fact that the
quantity of article recovered was huge, being much above the
commercial quantity.
14. Accordingly, CRM (NDPS) 1795 of 2023 is dismissed
with the direction on the trial court to conclude the trial as
expeditiously as possible, positively within a period of eight
months from this date.
(Sabyasachi Bhattacharyya, J.)
(Partha Sarathi Chatterjee, J.)
