Tripura High Court

Sri Naithak Jamatia vs The State Of Tripura on 10 December, 2021

HIGH COURT OF TRIPURA
AGARTALA

B.A No. 88 of 2021

Sri Naithak Jamatia
.............Petitioner(s)
Versus
The State of Tripura
.............Respondent(s)

For Petitioner(s) : Mr. S. Lodh, Adv.

For Respondent(s) : Mr. R. Datta, Adv.
Mr. S. Debnath, Addl. P.P.

HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Order

10/12/2021

This is an application for granting bail under section 439 of the

Code of Criminal Procedure, 1973 (Cr.P.C hereunder). Petitioner Naithak

Jamatia is an accused in Mungiakami PS case No.2021/MGK/032 which

has been registered under section 20(b)(ii)(C) and 29, NDPS Act, 1985.

Petitioner has been undergoing imprisonment since his arrest on

10.10.2021. He once filed an application seeking bail under section 439,

Cr.P.C which was rejected by this court by order dated 10.11.2021.

[2] The factual background of the case may be reproduced from

B.A 83 of 2021 which is as under:

"[2] Sri Ranjit Das, SI of Police of Mungiakami police station
lodged a suo moto complaint with the officer in charge of
Mungiakami police station alleging, inter alia, that on 9.10.2021
he along with his accompanying police staff were discharging
special duty at Salbagan at around 10.15 A.M when they
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intercepted a 12 wheeler truck bearing registration No.AS-19-C-
3035 on its way from Teliamura to Ambassa. The police team
led by SDPO, Teliamura detained the vehicle and carried out
search inside the driver‟s cabin. During search, they recovered
dried „gaja‟ in several packets concealed in a chamber specially
built for this purpose inside the driver‟s cabin. Accordingly they
detained the driver along with his vehicle for interrogation. The
driver and his associates who were travelling in the truck were
thoroughly interrogated and 130 kg dried „gaja‟ in 13 packets
were recovered and seized. In the course of interrogation, a
phone call came to the cell phone of the accused driver namely
Rupam Chakma from one Papai Das who was stated to be the
actual owner of the contraband. The driver told the interrogating
police officer that said Papai Das offered Rs.1 lakh to police
through him for getting the vehicle and the seized contraband
released. The complainant police officer stated in his FIR that
said Papai Das after making the phone call sent one Ashish Nag
to the police station with cash of Rs.1 lakh for release of the
offending vehicle and the contraband. As soon as he came, the
complainant also arrested him along with the cash. On
interrogation, said Ashish Nag confessed his guilt and told that
Papai Das and some other persons were their collaborators in
drug peddling. After seizure of the vehicle and the contraband,
the complainant lodged the said FIR."

[3] Based on the said FIR, Mungiakami PS case No.2021/MGK/032

under sections 20(b)(ii)(C) and 29, NDPS Act was registered and the case

was taken up for investigation.

[4] In the course of investigation, police examined the neighbours

of the petitioner and interrogated the arrested accused persons. On the

basis of the interrogation report, statements of the witnesses and other

incriminating materials collected by the investigating agency, petitioner

was arrested on 10.10.2021.
Page 3 of 12

[5] As stated above, he approached this court seeking bail under

section 439 Cr.P.C which was rejected by order dated 10.11.2021.

Relevant extract of the said order is as under:

"[6] Counsel of the petitioner contends that the accused was
arrested by police merely on suspicion. There is no genuine
ground for his arrest and detention. Counsel submits that no
contraband was recovered from the possession of the accused
merely on the basis of the statements of some of the arrested
accused of this case, the petitioner has been arrested and
detained in custody for about 01 month which is completely
illegal. It is also contended by Mr.Lodh, learned counsel that
before being entangled in the present case, accused was also
falsely implicated in Kakraban P.S case No.75 of 2018 registered
for similar offence in which he was granted bail on the ground of
inadequacy of materials against him. Thereafter, he was
implicated in Manu P.S. case No.2021 MNU/004 for similar
offence. In the said case also court released the accused on bail
since there was no material against him. After investigation of
the case, charge sheet was submitted against the other accused
persons. But the petitioner was not sent up for trial for lack of
evidence. Then the third case was registered against him which
was Bishalgarh P.S. case No.2021 BLG 059 on similar charges.
In that case also accused secured his release on bail because
there was no material against him justifying his detention in
custody. Counsel submits that this is the fourth case against the
petitioner. It is contended by learned counsel of the petitioner
that filing of cases one after another against the petitioner
demonstrates the malice on the part of the prosecution agency
against the present petitioner. According to learned counsel,
since there is no incriminating material against him, he deserves
release on bail on any condition.

[7] Mr.Ratan Datta, learned Public Prosecutor opposes the bail
application mainly on the ground that during interrogation by
the investigating agency, all the arrested accused have named
the petitioner as one of their collaborators. Referring to the
statement of one of the neighbours of the petitioner, learned PP
submits that the witness has categorically stated in his police
statement recorded under Section 161 Cr.P.C. that the petitioner
was indulging in smuggling of narcotic drugs over a quite long
period of time. Counsel submits that statements of co-accused
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during police interrogation cannot be brushed aside particularly
in NDPS cases. Relying on a decision of the Allahabad High Court
in Union of India vs. Altaf Hussain alias Jumai and Anr.
reported in 1998 Cri LJ 2782, learned PP submits that the NDPS
Act is a special Act and the statements recorded by the
authorities of the Narcotic Department during investigation of a
case under the said Act cannot be said to be inadmissible in
evidence. Counsel has relied on paragraph 16 of the judgment
wherein the Allahabad High Court has held as under:

"16. The N.D.P.S. Act is a special Act and authorities of
the Narcotics Bureau/Department cannot be equated
with the Police Officers. The statements recorded by the
authorities of the Narcotics Department cannot be said to
be inadmissible in evidence. Learned counsel for the
respondents failed to point out any provision on which
basis it can be said that the statements of the accused
recorded by these authorities during the course of
investigating of the present case cannot be read in
evidence. The only submission made by the learned
counsel for the respondents is that the statements
recorded by the authorities of the complainant Bureau is
hit by Section 25 of the Evidence Act. But I am unable to
accept this contention of the learned counsel for the
respondents. In the case cited as Kirpal Mohan Virmani v.
State 1990 SCC (Cri) 331 : (AIR 1991 SC 45) the Hon'ble
Apex Court clearly took a view that the Officers of the
Revenue Intelligence who have been invested with
powers of an Officer-in Charge of a Police Station under
Section 52 of the Act are not "Police Officers" within the
meaning of Section 25 of the Evidence Act. In another
case cited as Naresh J. Sukhawani v. Union of India 1966
SCC (Cri) 76 the Hon'ble Supreme Court has again held
that "the statement made before the Customs Officials is
not a statement recorded under Section 161 of the
Criminal Procedure Code 1973. Therefore, it is material
piece of evidence collected by Customs Officials under
Section 108 of the Customs Act". It has also been held
that the statement made by the one co accused is a
substantive piece of evidence against another person.
The High Court in a case cited as R.N. Kaker v. Shabir
Fida Hussain reported in 1991 (2) EFR 583 took a view
that the statement made before the authorities of the
Narcotics Department is admissible in evidence is not hit
either by Section 25 of the Evidence Act or by Section
161, Cr.P.C. In fact, if the accused gives a statement
then, the same is recorded under Section 67 of the Act
and the said statement can be used as prima facie
Page 5 of 12

evidence saying that he is very much involved in the
offence. However, no doubt, what will be the evidentiary
value and whether the accused persons can be convicted
on the basis of said confession or not will be looked into
in the trial but on the basis of the statement at least a
prima facie case is made out against the accused for
framing of the charges. ........................................."

[8] Counsel therefore, urges the court to reject the bail
application of the petitioner relying on the statements of the co
accused and the neighbours of the petitioner as well as the other
incriminating materials available on record against him. Counsel
submits that the contraband seized in this case is of commercial
quantity and the investigation is in progress. Release of the
accused on bail at this stage is likely to impede a fair
investigation of the case. Counsel therefore, urges the court for
rejecting the bail application.

[9] Perused the case diary and considered the submissions
made at the bar. It is true that serious charges have been
brought against the accused. Commercial quantity of contraband
has been seized in this case. Statements of the neighbours of
the petitioner with regard to his involvement in drug peddling
has also been taken into consideration while considering his bail
application. In view of the gravity and severity of the case
against the petitioner and the prima facie incriminating materials
available against him, I am of the considered view that bail
should not be granted to the petitioner at this stage. Therefore,
his bail application stands rejected."

[6] Appearing for the accused, Mr. S. Lodh, learned advocate

resorted to same arguments. Counsel contends that accused is in custody

for more than two months. No more evidence has been collected against

him apart from the statement of the co accused. Counsel submits that an

accused cannot be detained in custody only on the basis of the statement

of a co accused. With regard to the bail restrictions under section 37

NDPS Act, counsel has relied on order dated 17.09.2021 passed by the

Calcutta High Court in C.R.M. 2760 of 2021 (Jiarul Islam @ Jiyarul
Page 6 of 12

Hoque Vs. State) wherein the Calcutta High Court viewed that statutory

restrictions in section 37, NDPS Act, 1985 is not attracted in a case where

petitioner's name transpires from statements made by co accused. Having

viewed thus, the Calcutta High Court released the accused petitioner on

pre arrest bail under section 438 Cr.P.C. Counsel has also relied on

another decision dated 24.09.2021 of Calcutta High Court in C.R.M 3059

of 2021 (Habibur Sk @ Habibur Rahaman Vs. State) wherein the

petitioner was granted anticipatory bail under section 438 Cr.P.C on the

ground that the restrictions under section 37 NDPS Act would not be

attracted since no recovery was made from the possession of the

accused. Counsel submits that the present case is almost similar to the

cases in which bail was granted by the Hon'ble Calcutta High Court. It is

contended by Mr. Lodh, learned counsel that in the instant case also

name of the petitioner did not appear in the FIR. He was arrested simply

on the basis of the statement of the co accused and no recovery of

contraband was made from his possession. This apart, counsel has also

argued that the petitioner is being entangled in cases of similar nature

one after another only to harass him. In all these cases, court granted

bail to him for failure of the prosecution to make out a prima facie case.

Counsel, therefore, urges the court for granting bail the accused.

[7] Opposing the bail application, Mr. R. Datta, learned P.P submits

that serious charges have been brought against the petitioner. According

to Mr. Datta, learned P.P, the case diary demonstrates that accused is
Page 7 of 12

one of the masterminds behind the alleged crime. It is contended by

learned P.P that he has been carrying out the illegal business of drug

peddling over a quite long period of time across the State for which

several cases have been registered against him in different police

stations. Learned P.P submits that in view of his criminal antecedents, it

would not be appropriate to grant bail to him. It is also contended by Mr.

Datta, learned P.P that the offence involves commercial quantity and

therefore the bail restrictions in section 37 NDPS Act would apply in this

case. Since, there are prima facie incriminating materials against the

accused, he cannot be granted bail in view of the embargo in section 37

of the Act. Learned P.P has relied on the decision of the Apex Court in

Satpal Singh Vs. State of Punjab reported in (2018) 13 SCC 813 to

support his contention in which the Hon'ble Apex Court cancelled

anticipatory bail granted to the accused in a case under NDPS case

viewing that bail order should not have been passed without reference to

section 37 of the NDPS Act. In paragraphs 3 and 13 of the judgment, the

Hon'ble Apex Court held as under:

"3. Under Section 37 of the NDPS Act, when a person is accused
of an offence punishable under Section 19 or 24 or 27-A and
also for offences involving commercial quantity, he shall not be
released on bail unless the Public Prosecutor has been given an
opportunity to oppose the application for such release, and in
case a Public Prosecutor opposes the application, the court must
be satisfied that there are reasonable grounds for believing that
the person is not guilty of the alleged offence and that he is not
likely to commit any offence while on bail. Materials on record
are to be seen and the antecedents of the accused is to be
examined to enter such a satisfaction. These limitations are in
addition to those prescribed under the Cr.P.C or any other law in
Page 8 of 12

force on the grant of bail. In view of the seriousness of the
offence, the law makers have consciously put such stringent
restrictions on the discretion available to the court while
considering application for release of a person on bail. It is
unfortunate that the provision has not been noticed by the High
Court. And it is more unfortunate that the same has not been
brought to the notice of the Court.

...................................................................................................................

13. In any case, the protection under Section 438, Cr.P.C. is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173(2), Cr.P.C.). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail."

[8] Mr. R. Datta, learned P.P has also relied on the decision of the

Apex Court in State of Kerala & Ors. Vs. Rajesh & Ors. reported in

(2020) 12 SCC 122 wherein the Apex Court reiterated the principles laid

down in the case of Satpal Singh (supra) and held as under:

17. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus:-

"37. Offences to be cognizable and nonbailable.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless--

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."

(emphasis supplied)

18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. ( 1999)9 SCC 429, it has been elaborated as under:-

"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS

Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:

24. With deep concern, we may point out that the organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail

are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail.

Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the

negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act."

[9] Learned P.P argues that offence involves commercial quantity

of contraband and evidence is forthcoming against the accused. In these

circumstances, release of the accused on bail will obstruct the course of a

free and fair investigation. Learned P.P, therefore, urges for rejecting the

bail application.

[10] There is no dispute that the contraband seized in this case

comes under "commercial quantity" as defined under section 2 (vii-a) of

the NDPS Act. The case diary demonstrates that several cases in different

police stations have been lodged against the petitioner. The statements of

the witnesses available in the case diary have constituted a prima facie

case against him. In these circumstances, his involvement in the offence

cannot be ruled out. The Hon'ble Apex Court in the judgments cited to