Mst. Sonaban Bibi vs The State Of Tripura Represented ...
2021 Latest Caselaw 781 Tri

                   HIGH COURT OF TRIPURA
                         AGARTALA
                          BA 59 of 2021

Mst. Sonaban Bibi               ------------------Applicant(s)
W/O Taher Miah [email protected] Tahar
Of town Sonamura , P.S.-R.K.Pur
Gomati, Tripura onbehalf of
Taher Miah Choudhury @ Tahar ---------------------Accused(s)

                              Versus
The State of Tripura represented by PP, High Court of Tripura
                                     ----------------Respondent(s)

                          BEFORE

     HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
For Applicant(s)   : Mr. S.Lodh, Adv.

For Respondent(s) : Mr. Ratan Datta, PP.

                           ORDER

20.08.2021 Mst. Sonaban Bibi of Town Sonamura, Gomati Judicial

District has filed this application under Section 439 of the Code of

Criminal Procedure, 1973(Cr.P.C hereunder) for granting bail to her

accused husband Taher Miah Choudhury @ Tahar who has been

undergoing imprisonment in the District jail at Udaipur since his

arrest on 21.06.2021 in R.K.Pur P.S. Case No. 99 of 2021 which has

been registered under charges of offence punishable under Sections

21(b), 22(a),25,27A, 29 and 32 of the Narcotic Drugs and

Psychotropic Substances Act, 1985(NDPS Act hereunder).

[2] Factual background of the case is as under:

Sri Debabrata Biswas, Sub-Inspector of Police of

R.K.Pur Police Station lodged a suo moto complaint with the Officer

-in-Charge of R.K.Pur Police Station alleging, inter alia, that on the

basis of an information received from a reliable source, police raided

the house of the accused on 19..06.2021 at around 2.15 p.m and

recovered 0.460gms Heroin and SPASMO PROXYVON PLUS

capsule weighing 16.17 gms from his dwelling hut in presence of his

wife. The said contraband was found in the drawer of an Almirah in

his dwelling hut. As per the FIR statement, all statutory formalities

were observed before conducting raid in the house of the accused.

Written consent of his wife was procured for carrying out search in

the house and the entire search operation was carried out in presence

of woman members of police. It has been alleged in the FIR that the

accused stored the contraband in his house for selling the same to

consumers. During raid, 7 of such consumers were found present in

the house of the accused who came to buy the contraband from him.

All of them were arrested at the spot.

[3] Based on the said FIR, R.K.Pur P.S. case No.99 of 2021

under Sections 21(b), 22(a),25,27A, 29 and 32, NDPS Act was

BA 59 of 2021

registered and investigation of the case was taken up. In the course

of investigation, present accused was arrested on 21.06.2021.

[4] Heard Mr.S.Lodh, learned counsel, appearing for the petitioner.

Heard Mr.Ratan Datta, learned PP, representing the state respondent.

[5] Counsel appearing for the petitioner contends that

except the charge under Section 27A, NDPS Act, all other charges

brought against the petitioner involve small quantity and minimum

punishment prescribed for those charges is imprisonment for less

than 10 years with or without fine. Counsel, therefore, argues that in

view of Section 36A of the NDPS Act, the proviso to sub-section(2)

of Section 167 will apply in this case and the petitioner in no

circumstances can be detained for more than 60 days unless the

investigation is complete within the said statutory period. With

regard to application of Section 27A, NDPS Act, counsel argues that

clause (viii)(a) of Section 2, NDPS Act has been re lettered as clause

(viii)(b) by an amendment act of 2014 w.e.f. 01.05.2014. But no

consequential amendment has been made in Section 27A NDPS Act.

Counsel submits that the matter came for consideration before this

court in the case of Court on its own motion, High Court Of

Tripura Vs. Union of India represented by the Secretary to the BA 59 of 2021

Ministry of Home Affairs reported in 2021 SCC Online TRI 300 in

which it was observed by this court that unless the consequential

amendment is carried out in Section 27A, said Section 27A, NDPS

Act which is one of the substantive penal provision in the NDPS Act

would be inoperable. Directions were made by this court to the

concerned authority to take steps to bring about the consequential

changes in Section 27A, NDPS Act to make the Section operable.

Relevant portion of the said judgment of this court reads as under:

"28. Having read the entire amendment Act as enacted in the year, 2014, we are of the view that if the statute is entirely read nobody would find difficulty that due to oversight, no amendment was carried out by substituting „sub-clauses (i-v) of clause (viiia) of Section-2‟, "sub-clauses(i-v) of clause (viiib) of Section-2" in section 27A of the NDPS Act. For that omission, the acts which are to be designated as offence got dislocated. However, the latter part as well turned out to greatly dislocated when it refers to those clauses by stating „aforementioned activities‟. Unless in Section-27A of the NDPS Act in place of sub-clause (i-v) of clause (viiia) of Section-2, "subclause (i-v) of clause (viiib) of Section-2" is read, Section-27A which is one of the substantive penal provision in the NDPS Act would be rendered inoperable. As such, we would hold that until the appropriate legislative change occurs by amending Section 27A of the NDPS Act appropriately, sub-clauses (i) to (v) of clause (viiia) of Section-2 of the NDPS Act shall suffer effect of deletion and bringing in sub-clauses i-v of the clause viii-b of Section-2 of the NDPS Act in that place. We are worried this effect might create an incongruity to the constitutional protection provided under Article-20. We have adopted this approach after reading the entire statute. We have only given effect of deletion and conjunction. As the same time we are constrained to observe that Central Government has failed to introduce the Amendment Act for amending the NDPS Act for purpose of removing that omission and bringing in the substitution by sub-clause i to v BA 59 of 2021

of clause (viiib) of Section-2 of the NDPS Act. In this circumstances we are persuaded to direct the Central Government in the Ministry of Home Affairs to take appropriate steps for amendment as required in Section-27A without further delay.

29. In terms of the above, this reference is answered. Both the Central Government and the State Government shall publish a notification bringing about the content of this order in short for the public notice so that the requirement of Article- 20 of the Constitution of India is not diminished. Such notification be made within a month from today."

[6] Mr. Lodh, learned counsel appearing for the petitioner

therefore, contends that since the required changes have not yet been

brought to Section 27A, NDPS Act pursuant to the judgment of this

court in the case of Court on its Own Motion, High Court of Tripura

vs. Union of India (supra), charge under Section 27A does not survive

against the petitioner. Further submission of learned counsel is that

for argument's sake, even if amended clause (viii b) of Section 2 is

read in Section 27A of the Act, no material is available on record to

infer that the accused ever indulged in financing any of the activities

specified in sub-clauses (i) to (v) of clause (viii b) of Section 2

NDPS Act to be liable for violation of Section 27A of the Act.

Counsel further contends that all the other 7 FIR named accused who

were arrested from the same place have been released on bail by the

Special Judge by his order dated 28.07.2021. But, the present

accused has been languishing in jail since his arrest on 21.06.2021.

According to learned counsel he completes 60 days in custody on BA 59 of 2021

20.08.2021. Since investigation is still pending, counsel submits that

in view of the period of detention under gone by him and the

provision of Section 36A, NDPS Act read with the proviso to sub-

section (2) of Section 167 Cr.P.C, the accused may be released on

bail on any condition what so ever.

[7] Heard, Mr.Ratan Datta, learned Public Prosecutor who

opposes the bail application of the accused. According to Mr.Datta,

learned PP, accused is a habitual offender who is also involved in

R.K.Pur P.S. case No. 42 of 2020 for similar charges. According to

Mr. Datta, learned PP, accused who was granted bail in those cases,

has misused his liberty by committing same kind of offence. Learned

PP further argues that during investigation of the case, police

collected the CDR of the mobile phone of the accused which

indicates that he had a regular conversation with the other FIR

named accused persons of this case. It is also submitted by Mr.Datta,

learned PP, that the contraband was seized from the dwelling hut of

the accused petitioner in presence of his wife and it would emerge

from the seizure list that his wife Sonaban Bibi was also served with

a copy of the seizure list at the spot. Receipt of the seizure list has

been acknowledged by her by putting her signature on the seizure

list. Counsel, therefore, argues that in view of the materials available

on record in support of the charges, accused petitioner does not BA 59 of 2021

deserve bail at this stage. Learned PP therefore, urges the court for

rejecting his bail application.

[8] Perused the entire case record including the updated

case diary. Undisputedly, accused was not available when police

conducted raid in his house. As per the FIR statement, 7 out of the 9

FIR named accused were arrested from the dwelling hut of the

present accused. Allegedly they assembled there for purchasing

contraband from the present accused. But during search, nothing

could be recovered from their possession and on this ground they

were released on bail by the learned Special Judge by his order dated

28.07.2021. Even though, the accused was not present at the place of

search and seizure of the contraband, there is no denial that the place

was not his dwelling house. Allegedly his wife was present at the

time of search and seizure who acknowledged receipt of the copy of

the seizure list by putting her signature thereon. Apparently, the

accused has been charged under Sections 21(b), 22(a), 25, 27A, 29

and 32 NDPS Act. For the offences punishable under Section 21(b),

punishment may extend to RI for 10 years with fine. For offences

under Section 22(a), punishment may extend to imprisonment for 01

year or with fine which may extend to Rupees 10,000/- or with both.

No prima facie case under Section 21(b) is made out against the

accused, since it would emerge from the seizure list that small BA 59 of 2021

quantity of contraband was allegedly seized from the possession of

the accused for which prosecution has charged him for offence

punishable under Section 22(a), NDPS Act. Prosecution could not

apprise this court as to whether any action in terms of the judgment

of this court in Court On Its Own Motion High Court of Tripura

vs. Union of India (supra), has been taken to make Section 27A

NDPS Act operable as a substantive penal provision.

[9] Admittedly, accused was arrested on 21.06.2021. He

has thus completed 60 days in custody pending investigation.

Therefore, considering the charges brought against him, materials

available on record in support of these charges and the period of

detention undergone by the accused pending investigation, this court

is of the view that accused may be released on bail. Accordingly, it is

directed that accused Taher Miah be released on bail on his

furnishing bail bond of Rs.25,000/- with one local surety of the like

amount to the satisfaction of the trial court on the following

conditions:

(i)The petitioner will appear before the investigating

officer twice in a week unless otherwise directed by the

IO till the investigation of the case is complete.

BA 59 of 2021

(ii)He will not try to influence any of the witnesses of this

case in any manner what so ever.

[10] In terms of the above, the bail petition is allowed and

the case is disposed of.

Interim application(s), if any, also stands disposed of.

Return the CD.

JUDGE

Saikat Sarma, PA

BA 59 of 2021