Dhanchandra Debbarma vs The State Of Tripura
2021 Latest Caselaw 1232 Tri

                        HIGH COURT OF TRIPURA
                              AGARTALA
                           B.A. No. 86 of 2021

Dhanchandra Debbarma,
Son of Mangkurai Debbarma, resident of
Niranjan Sardar Para, P.O-Chankhola Bazar,
P.S-Khowai, District-Khowai.
                                                 ............... Petitioner(s).
For and on behalf of :
1. Sri Sanjit Debbarma,
Son of Sri Dhanu Debbarma, resident of
Radhanagar, West Belchara, P.S-Khowai,
District-Khowai Tripura.

2. Sri Sangit Debbarma,
Son of Sri Dhan Chandra Debbarma,
resident of Niranjan Sardar Para, P.O-
Chankhola Bazar, P.S-Khowai, District-
Khowai.
                                             ............... Accused Persons.
                                 Vs.
The State of Tripura,
Represented by the Secretary to the
Government of Tripura, Home Department,
Agartala.
                                               ............... Respondent(s).

For Petitioner(s) : Mr. Raju Datta, Advocate. For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.

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

10/12/2021

This is an application under Section 439 Cr. P.C for

granting bail to accused Sanjit Debbarma and Sangit Debbarma who

were arrested by police on 7.6.2021 in Mungiakami Police Station

Case No.2021 MGK 019 under Sections 20 (b)(ii)(c), 25 and 29 of

the Narcotic Drugs and Psychotropic Substances Act, 1985.

[2] The factual context of the case is as under:

Rajit Das, a Sub-Inspector of police of Mungiakami Police

Station lodged a suo motu FIR with the Officer-in-Charge of the said

police station alleging, inter alia, that at about 6 'O' clock in the

morning on 07.06.2021 when he was patrolling on the highway along

with his accompanying police staff, he intercepted a 6(six) wheeler

truck bearing registration No. AS-04-AC-2295 at the area called 37

Miles for checking. Accused Sanjit Debbarma was driving the vehicle

while the other accused was found seated in the cabin of the vehicle.

Police carried out a search in the vehicle and recovered 613 kg dried

ganja in 55 packets from inside the vehicle. Cash sum of Rs.15,000/-

was also seized from the possession of the accused. Both of the

accused were then arrested and brought to the police station.

[3] Pursuant to the said FIR, Mungiakami Police Station Case

No.2021 MGK 019 under Sections 20 (b) (ii)(c), 25 and 29 was

registered and the case was taken up for investigation.

[4] Both accused approached this Court for bail claimng that

in terms of Section 167(2) Cr. P.C an indefeasible right had accrued

to them on expiry of 180 days from the date of their arrest since

investigation could not be completed within this period.

[5] When the matter was taken up for consideration by this

Court on 03.12.2021, the Additional Public Prosecutor opposed the

bail application contending that the concerned Public Prosecutor

moved the Special Court seeking extension of time beyond 180 days

for completing investigation in terms of Section 36A (4), NDPS Act. It

was submitted by the Addl. P.P. that matter was listed before the

Special Court for hearing and disposal on 04.12.2021.

[6] After hearing the counsel of the parties matter was

adjourned till 08.12.2021. The L.C record was also called for. On

08.12.2021 the learned Additional Public Prosecutor informed this

Court that since the accused approached this court for bail during the

pendency of the matter at the Special Court and such bail application

was under consideration of this Court, the Special Court did not

dispose the matter.

[7] The L.C record demonstrates that the Special Court

passed the following order on 04.12.2021.

"04.12.2021.

Ld. P.P Mr. Bikash Deb is present for the State.

Accused persons namely, Sri Sanjit Debbarma and Sri Sangit Debbrama are produced from J/C through video conferencing.

Learned Counsel Mr. Sumit Kr. Paul is present on their behalf, but he has not submitted any bail application before the Court though till today the accused persons are in custody for 180 days.

Meanwhile, Ld. PP has submitted a petition for extension of detention of the accused persons upto one year further.

Ld. Counsel Mr. Sumit Kr. Paul submits that bail application has been by the accused persons before the Hon'ble High Court of Tripura and the said matter is now under consideration of the

Hon'ble High Court. Therefore, no bail application is filed before this Court by the accused persons.

Ld. P.P submits that CD has been called by the Hon'ble High Court of Tripura and the matter is under consideration of Hon'ble High Court and according to Ld. P.P he could not produce the CD today for hearing on the petition under Section 36A, NDPS Act. Hence, hearing on the said petition may be adjourned.

Hon'ble High Court of Tripura in Karnajit De Vs. The State of Tripura (AB No.87 of 2020) on 05.08.2020 was pleased to observe that when a bail application, be it under Section 438 or 437 of Cr. P.C, the Courts below should wait for decision of Superior Courts and that will uphold the judicial discipline which is necessary to the order by administration of justice.

In the present case, the petition filed by the prosecution has bearing on the bail matter of the accused and matter is under consideration of Hon'ble Superior Court. None of the parties could show the latest order passed by the Hon'ble High Court in said bail application.

On search in the website also, the order dated 03.12.2021 is found not uploaded yet.

                  Considering the    totality   hearing   of   the
           petition is adjourned.

The accused persons are again remanded to J/C till 10.12.2021. On that date they should be produced from J/C through VC.

Inform Jailor, Khowai Sub-Jail.

Fix 10.12.2021 for production of accused persons from J/C through VC and hearing on the petition of prosecution."

[8] Mr. Raju Datta, learned counsel of the petitioner has

argued that the indefeasible right of the petitioner accruing from the

default of the prosecution to complete investigation within 180 days

cannot be defeated on account of pendency of the matter under

Section 36A(4) NDPS Act at the Special Court. Counsel relied on the

common judgment dated 28.02.2020 of this Court passed in BA

No.20 of 2020 and BA No.21 of 2020 in which this court having relied

on the decisions of the Apex Court in Hitendra Vishnu Thakur and

others Vrs. State of Maharashtra and Others; reported in

(1994) 4 SCC 602 and Sanjay Kumar Kedia alias Sanjay Kedia

Vrs. Intelligence Officer, Narcotics Control Bureau and

Another; reported in (2009) 17 SCC 631 set aside an order of the

Special Court extending time under Section 36A(4) NDPS Act and

granted default bail to the accused viewing as under:

"24. In the instant case, the learned Special Judge vide his order dated 10.02.2020 has further extended the detention period of the accused persons while rejecting their bail applications, which, according to me is per se illegal and contrary to sub-section(4) of Section 36A of the NDPS Act. In my considered view, the learned Special Judge could not read and construe the true meaning, and considered all the provisos appended to sub-section(4) of Section 36A of the Act as well as Section 167(2) of Cr P C.

25. In view of the aforesaid analysis and discussions, both the accused persons, namely Rupan Miah and Halim Miah, as of right, are entitled to be released on default bail since the statutory period of detention of 180 days has been expired by this time."

[9] Counsel of the petitioner has also relied on the decision

dated 3.9.2015 of the High Court of Punjab and Haryana in Crl.

Revision No.27080 of 2015 (O & M) (Rajinder Kumar @ Raju Vrs.

State of Punjab) wherein the High Court of Punjab and Haryana

viewed that indefeasible right to be released on bail accrued to the

petitioner on expiry of 180 days could not be defeated by keeping

the application under Section 36A(4) NDPS Act pending.

[10] Counsel of the petitioner contends that failure of the

investigating agency to complete investigation within the statutory

period has made the accused entitled to bail on default ground and

as such they deserve immediate release on bail.

[11] Learned Public Prosecutor on the other hand submits that

the Public Prosecutor of the concerned Special Court approached the

Court by filing a report on 02.12.2021 under 36A(4), NDPS Act

seeking extension of time up to one year for completion of

investigation which finds mention in the order dated 04.12.2021 of

the learned Special Judge.

[12] According to Mr. Ratan Datta, learned Public Prosecutor,

specific reasons have been furnished by the Public Prosecutor of the

Special Court in his report dated 02.12.2021 for detention of the

accused beyond 180 days. Counsel submits that purpose of Section

36A(4) of the Special statute would be frustrated if the accused are

granted bail on default ground during the pendency of the matter in

the Special Court. Learned P.P. therefore, opposes the bail

application.

[13] Considered the submissions of the counsel of the

petitioner and the State counsel. Also gone through the ratio decided

in the judgments which have been relied on by the counsel of the

petitioner.

[14] Undisputedly, report of the Public Prosecutor under

Section 36A(4) NDPS Act was submitted at the Special Court before

expiry of 180 days. The matter is still pending for consideration of

the Special Court. As discussed, counsel of the petitioner has relied

on a decision of this Court in which this court having relied on the

judgments of the Apex Court in Hitendra Vishnu Thakur (supra)

and Sanjay Kumar Kedia (supra) granted bail to the accused on

default ground after setting aside an order passed by the Special

Court under Section 36A(4) NDPS Act. But in the case in hand no

order has yet been passed by the Special Court on the approach

made under Section 36A(4) NDPS Act.

[15] In the given fact situation, this Court is of the view that

in order to strike a balance between the interest of the accused and

the interest of the society through the investigating agency, it would

be appropriate to decide the bail application of the accused only after

the pending application under section 36A(4) NDPS Act is decided by

the Special Court.

[16] The learned Special Judge, Khowai is, therefore, directed

to decide the matter pending before him under Section 36A(4) NDPS

Act in accordance with law after providing opportunity of hearing to

the parties on or before 14.12.2021 and send back the LCR along

with the order passed by him by a Special Messenger by 10 a.m on

15.12.2021.

[17] This petition be further listed for hearing on 15.12.2021.

Registry will send back the LCR along with a copy of this order to the

learned Special Judge (Sessions Judge), Khowai by a special

messenger immediately.

JUDGE

Dipankar