Tripura High Court

Sri Nirmal Debbarma vs The State Of Tripura on 11 August, 2021

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                     HIGH COURT OF TRIPURA
                           AGARTALA

                         A.B. No. 56 of 2021

Sri Nirmal Debbarma
                                               ----- Accused -Petitioner(s)
                              Versus


The State of Tripura
                                                       -----Respondent(s)

For Petitioner(s)             :     Mr. P. Saha, Advocate.

For Respondent(s)             :      Mr. R. Datta, Public Prosecutor.


                              B_E_F_O_R_E_
           HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                  ORDER

11/08/2021

Sri Nirmal Debbarma who is an Fir named accused in

Ambassa Police Station case No. ABS(NDPS) 51 of 2018 under sections

20(b)(ii)(C), 25 and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (NDPS Act hereunder) has approached this court

by means of filing an application under section 438 of the Code of

Criminal Procedure, 1973 (Cr.P.C hereunder) seeking pre arrest bail in

anticipation of his arrest.

[2] It should be mentioned at the outset that the investigating

agency has already completed the investigation of the case and

submitted charge sheet against four accused including the present Page - 2 of 15

petitioner which has culminated into trial under case No. Special

(NDPS) 07 of 2019 under sections 20(b)(ii)(C), 25 and 29, NDPS Act in

the court of the Special Judge, Dhalai Judicial District at Ambassa.

[3] Heard Mr. P. Saha, learned counsel appearing for the

petitioner. Also heard Mr. R. Datta, learned P.P appearing for the State

respondent.

[4] Before I advert to their submissions, it would be

appropriate to give a brief resume of the facts of the case which is as

under:

On the tip of an information received from the Intelligence

Officer of Border Security Force, Ambassa, a truck bearing registration

No. HR-38U-5420 on its way from Churaibari to Agartala along the

National Highway was detained by Sri Makhan Das, Sub Inspector of

police of Ambassa police station at Jawaharnagar at around 08.50 AM

on 20.09.2018. Prior to the detention of the said vehicle, police

recorded the information received by them in the general diary of the

police station vide G.D. entry No. 9 & 10 dated 20.09.2018 and

communicated the same to the Superintendent of Police, Dhalai

District. After observing the said formalities, the police team led by the

Sub Divisional Police Officer appeared at the spot and detained the

said vehicle. After detention, search was carried out in the vehicle.

During search, 81 packets of dried ganja wrapped in brown papers Page - 3 of 15

were recovered from inside the vehicle. Three persons namely Arif

Khan and Shoukin Khan of Haryana and Ranjan Debbarma of West

Tripura who were found travelling in the said vehicle were also

detained by police. Among them, Arif Khan was the driver of the said

vehicle. Pursuant to police interrogation, they disclosed that they were

carrying the contraband in their vehicle for delivery to Nirmal

Debbarma, present petitioner. The contraband was seized by police in

presence of witnesses, the same was weighed and it was found that

gross weight of the contraband was 965.100 Kg. Police also seized a

sum of Rs.49,500/- in cash from the said carriers of the contraband

and arrested three of them for contravention of several provisions of

NDPS Act. Stating these facts, Sri Makhan Das, Sub Inspector of Police

lodged a written FIR with the Officer in Charge of Ambassa police

station on 20.09.2018 at 03.12 PM. Based on his FIR, said Ambassa PS

case No. 2018/ABS/051 under sections 20(b)(ii)(C), 25 and 29, NDPS

Act was registered and investigation of the case was taken up by

police.

[5] After investigation, Police submitted charge sheet in the

court of the Special Judge at Ambassa in Dhalai Judicial District and

by his order dated 15.02.2019 in Special (NDPS) 07 of 2019 the

learned Special Judge had taken cognizance of offence punishable

under sections 20(b)(ii)(C), 25 and 29, NDPS Act. Since, the present

petitioner was found absconding to evade police arrest, arrest warrant Page - 4 of 15

was issued by the learned trial court against him which is still pending

for execution. It also appears that the learned trial court has issued

several reminders to the Officer in Charge of the concerned Police

Station for execution of the arrest warrant. By this time, among the

three accused who were arrested by police, Shoukin Khan has been

forwarded to the jurisdictional Juvenile Justice Board since on

verification of his papers, the learned Special Judge by his order dated

06.12.2018 held that he was a juvenile. In view of the fact that there

was no progress of the case due to delay in execution of the arrest

warrant against the petitioner and moreover accused Arif Khan was

about 70 years old, the learned Special Judge by his order dated

30.10.2019 released the other two accused namely Ranjan Debbarma

and Arif Khan on bail and by the same order the Officer in Charge of

Sidhai Police Station was directed to expedite the execution of the

arrest warrant against the present petitioner. Since then, there is no

progress of the case before the learned Special Judge. Similar

application for bail was filed by the present petitioner in the court of

the Special Judge at Ambassa which was rejected by the learned

Special Judge by a detailed order dated 29.05.2021. Relevant extract

of the said order is as under:

"......................................Heard and considered.

There is no doubt that after submission of charge sheet generally the Police Officer do not visit the residence of the charge sheeted accused person to arrest him/ her without any ligal process issued Page - 5 of 15

from the trial Court or from the court accepting the charge sheet. In the present case the Investigating Police Officer have already submitted charge sheet and he has no business with further investigation and the presence of the charge sheeted accused person like the accused petitioner before the Investigating Police Officer is also not required at this stage for the interest of proper police investigation into the case. This Spl. Court had issued warrant of arrest against the present accused petitioner Sri Nirmal Debbarma in c/w Case No. Spl. NDPS 07/2019 vide despatch No.1258, dated 18-02-2019 and thereafter, several reminders were issued to the Officer-in-Charge of Sidhai PS for immediate execution of that warrant of arrest and now the said case is pending for ER and further order on 03-06-2021.

So, considering the facts and circumstances of this case and the submission made by the Ld. Counsel of both the parties I find no ground to allow the application U/S.438 of Cr.P.C. filed by the accused petitioner, ratherthe accused petitioner is hereby directed to surrender before the Spl. Court on or before the next date to face trial.

Hence, the bail application filed U/S.438 of Cr.p.C. is hereby rejected.............................."

[6] In this backdrop of circumstances, this application for

granting pre arrest bail to the petitioner has been submitted.

Appearing for the petitioner, Mr. P. Saha, learned counsel submits

that accused was not present when the other three accused were

arrested by police along with the contraband from Jawaharnagar at

Ambassa. Counsel submits that the innocent petitioner was falsely

implicated in the case. According to Mr. P. Saha, learned defence

counsel, the stand of the prosecution that the other three accused Page - 6 of 15

were carrying the contraband for delivery to the petitioner is

absolutely false because there is no proof in support of such

contention. Counsel submits that filing of charge sheet against the

petitioner by itself does not create any bar for granting anticipatory

bail to the petitioner. In support of his contention Mr. Saha, learned

counsel has relied on the decision of the Apex court in Bharat

Chaudhary & Anr. Vs. State of Bihar & Anr. reported in (2003) 8 SCC

77 wherein the Apex Court has held that taking cognizance by court

or filing of charge sheet cannot by itself be construed as a prohibition

against the grant of anticipatory bail. Observation of the Apex Court

in this regard is as under:

"7. From the perusal of this part of Section 438 of the CrPC, we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Page - 7 of 15

Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of the CrPC even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the Court to do so."

[7] Mr. Saha, learned counsel of the petitioner further

submits that the Apex Court in Sushila Aggarwal & Ors. Vs. State

(NCT of Delhi) & Anr. reported in (2020) 5 SCC 1 has succinctly held

that the genesis of the jurisdiction under section 438, Cr.P.C lies in

Article 21 of the Constitution object of which is to ensure liberty of

citizens by protecting them from unwarranted arrests. Counsel refers

to paragraph 53 of the said judgment wherein the Apex Court has

held as under:

"53. It is quite evident, therefore, that the predominant thinking of the larger Constitution Bench, in Sibbia, [Gurbaksh Singh Sibbia Vs. State of Punjab] (1980) 2 SCC 565, was that given the premium and the value that the Constitution and Article 21 placed on liberty-and given that a tendency was noticed, of harassment-at times by unwarranted arrests, the provision for anticipatory bail was made. It was not hedged with any conditions or limitations- either as to its duration, or as to the kind of alleged offences that an applicant was accused of having committed. The courts had the discretion to impose such limitations (like cooperation with investigation, not tampering with evidence, not leaving the country etc.) as were reasonable and necessary in the peculiar circumstances of a given case. However, there was no invariable or inflexible rule that the applicant had to make out a special case, or that the relief Page - 8 of 15

was to be of limited duration, in a point of time, or was unavailable for any particular class of offences."

[8] Counsel for the petitioner has also relied on the decision

of the Allahabad High Court in Adil Vs. State of U.P. reported in 2020

SCC OnLine All 1429 wherein the High Court granted anticipatory bail

to the petitioner who was booked for offence punishable under

sections 307 and 504 IPC relying on the said decision of the Apex

Court in Sushila Aggarwal & Ors. Vs. State (NCT of Delhi) & Anr.

(Supra). Counsel, therefore, submits that the petitioner who has no

involvement in the alleged offence may be enlarged on pre arrest bail

otherwise his liberty guaranteed under Article 21 of the Constitution

shall be infringed.

[9] Mr. R. Datta, learned P.P on the other hand vehemently

opposes the bail application moved on behalf of the petitioner.

According to Mr. Datta, learned P.P, it would emerge from the record

that the accused has managed to evade police arrest for about three

years. By this time, charge sheet has been submitted in the

jurisdictional Special Court showing him absconder. Arrest warrant

followed by several reminders issued by the Special Court is also

pending for execution. He has also been declared a proclaimed

offender and notice in this regard has been published in newspapers.

Despite all these efforts, he could not be arrested. Relying on the

decision of the Apex Court in State of Madhya Pradesh Vs. Pradeep Page - 9 of 15

Sharma reported in (2014) 2 SCC 171, Mr. Datta, learned P.P submits

that in view of the said judgment of the Apex Court relief under

section 438 Cr.P.C is not available to an accused who is an absconder

or proclaimed offender in terms of section 82, Cr.P.C. In this regard,

learned P.P has relied on paragraph 15 and 16 of the said judgment of

the Hon'ble Supreme Court which are as under:

"15. In Adri Dharan Das vs. State of W.B., (2005) 4 SCC 303 this Court considered the scope of Section 438 of the Code as under:

"16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has „reason to believe‟ that he may be arrested in a non-bailable offence. Use of the expression „reason to believe‟ shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere „fear‟ is not „belief‟ for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-

bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if Page - 10 of 15

there is something tangible to go by on the basis of which it can be said that the applicant‟s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail „whenever arrested for whichever offence whatsoever‟. Such „blanket order‟ should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual‟s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed."

16. Recently, in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under:

"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as „absconder‟. Normally, when the accused is „absconding‟ and declared as a „proclaimed offender‟, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."

It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in Page - 11 of 15

terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail."

[10] It is contended by learned P.P that the case diary will

demonstrate that accused operates a gang of drug smugglers and the

seized contraband was being smuggled into the State from across the

State border on behalf of and under the instruction of the petitioner.

It is contended by Mr. Datta, learned P.P that the learned Special

Judge while rejecting the bail application of the accused by his order

dated 29.05.2021 directed the petitioner to surrender before the

Special Court on the date appointed by the court so as to commence

the trial of the case. The desperate petitioner did not even comply

with the said order of the learned Special Judge. Learned P.P also

contends that huge amount of dried ganja was recovered by the

investigating agency in this case and as such the offence involves

commercial quantity. In these circumstances, restrictions on bail

under section 37 of the NDPS Act shall apply and under no

circumstances the accused against whom there are abundant

incriminating materials in the case diary can be released on bail.

Learned counsel, therefore, urges for rejection of his bail application.

[11] Perused the entire case record including the updated case

diary produced on behalf of the prosecution. Considered the

submissions of learned counsel representing the parties.

Page - 12 of 15

[12] Parameters for grant of bail under section 438, Cr.P.C has

been laid down by the Apex Court in the case of Siddharam

Satlingappa Mhetre Vs. State of Maharashtra & Ors. reported in

(2011) 1 SCC 694 which are as under:

"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or the other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution Page - 13 of 15

because overimplication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

[13] In the case of Nathu Singh Vs. State of Uttar Pradesh &

Ors. and Ompal Singh Vs. State of Uttar Pradesh & Ors. reported in

2021 CRI. L.J. 2593: AIROnline 2021 SC 260 the Hon'ble Apex Court

has held that the discretionary power of the court under section 438,

Cr.P.C cannot be exercised in an untrammelled manner. Observation

of the Apex Court in paragraph 25 of the Judgment is as under:

"25. However, such discretionary power cannot be exercised in an untrammelled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C. particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest Page - 14 of 15

of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one.

[14] Obviously, in this case, even though accused petitioner

could not be spotted at the time of seizure of the contraband and

arrest of the other three accused of this case, the investigating

agency seems to have collected sufficient materials which have made

out a good prima facie case against him supporting his involvement in

the alleged offence. It would not be appropriate to discuss all those

materials in great detail at this stage. Quantity of the seized

contraband no doubt involves contravention of the provisions of the

Act with regard to commercial quantity and as such restrictions on

bail put under section 37 of the NDPS Act clearly apply to this case.

Moreover, the conduct of the accused also disentitles him to the

discretionary relief provided under section 438, Cr.P.C. It is apparent