Kajal Miah vs The State Of Tripura
2021 Latest Caselaw 1254 Tri

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                   HIGH COURT OF TRIPURA
                         AGARTALA
                         B. A No.89 of 2021
Kajal Miah
Son of Nur Mia, R/O R. K. Nagar Panchayat
Tilla, P.O Khash Noagoan, P.S Bodhjung Nagar,
District- West Tripura on behalf of custody
accused person Jiayur mia @ Bota, Son of
Sundar Mia R/O Tillagoan, P S. Kamalpur,
District- Dhalai Tripura.
                                                 ............... Petitioner(s).
                               Vs.
The State of Tripura
Represented by the Ld. PP High Court Of Tripura.
                                                ............... Respondent(s).
For Petitioner(s) :     Mr. Narasingha Das, Advocate.
                        Mr. Debanjan Das, Advocate.
For Respondent(s):      Mr. Ratan Datta, Public Prosecutor.
                        Mr. S. Ghosh, Addl. Public Prosecutor.

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

                               ORDER

15/12/2021

Kajal Mia has filed this bail application under Section 439

Cr. P.C for release of his brother-in-law Jiayur Miah alias Bota on bail

who is in custody for more than six months in connection with case

No. Special NDPS 3 of 2021 awaiting trial in the court of Special

Judge (NDPS), Kamalpur, Dhalai for commission of offence

punishable under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act,

1985.

[2] Heard Mr. Narasingha Das, learned advocate appearing

along with Mr. Debanjan Das, advocate for the petitioner. Heard Mr.

Ratan Datta, learned Public Prosecutor appearing along with Mr. S.

Ghosh, learned Addl. P.P. for the State.

[3] Factual context of the case is as under:

Inspector Mahesh Kumar, Company Commandant, 3rd

Bn. BSF lodged a written FIR with the Officer in-charge of Kamalpur

Police Station in Dhalai District alleging, inter alia, that at about 1.30

hours at night on 28.04.2021 his battalion stopped a battery

operated Tom-tom which was proceeding towards Indo-Bangladesh

border within the Indian territory near BOP Dhalai. Soon after the

vehicle was stopped, the people who were travelling in the vehicle

started running away. One of them was heard shouting "Jiyaur, BSF

has arrived". Some of the members of the battalion chased them

and caught Lipan Sinha of Goalmara, Mohanpur from whose

possession 25 Kg dried Ganja was recovered. His associates fled

away in the darkness of night. The BSF battalion came to know from

Lipan Sinha that the present petitioner was one of their associates.

They seized the offending vehicle and the contraband from the

possession of Lipan Sinha and brought the accused to their office.

Accused Ripan Sinha told the BSF battalion that accused persons

namely, Jiyaur Mia, Probhat Sinha and Barun Mohapatra were his

collaborators in committing the offence. Accordingly, FIR was

lodged.

[4] Based on the said FIR, Kamalpur P.S Case No.2021 KMP

032 was registered for commission of offence punishable under

Sections 20(b)(ii)(C), 25 and 29 NDPS Act, 1985 and the case was

taken up for investigation. During investigation of the case the

present petitioner surrendered at the police station on 25.05.2021.

He was then arrested by police and taken into custody. He has been

undergoing imprisonment since then.

[5] Mr. Narsingha Das, learned counsel appearing for the

petitioner submits that there is no proof of involvement of accused

Jiayur Miah in the alleged offence. Counsel contends that the

informant has categorically stated in his FIR that only one person

namely Lipan Sinha was spotted by the BSF battalion and the

contraband was recovered from his possession. Neither the

petitioner nor any other FIR named accused was present there.

According to Mr. Das, accused has been suffering detention in

custody for no fault of him. This apart, counsel also contends that

wife of the accused has recently delivered a still born child. To get

rid of her mental stress and illness, wife of the accused needs the

support and company of her husband. Counsel further contends that

investigation of the case is over and charge sheet has been laid in

the case. Therefore, his detention in custody is no longer required.

Counsel therefore, urges the Court for his release on bail.

[6] Learned Public Prosecutor on the other hand opposes the

bail application contending that charge sheet has been submitted by

the investigating agency within the statutory period. The

investigating agency has collected sufficient materials against the

petitioner which has established his involvement in the alleged

offence. Learned P.P contends that petitioner was transporting the

contraband in the Tomtom along with arrested accused Lipan Sinha

and the other two FIR named accused. When the BSF battalion

chased their vehicle, he managed to flee away along with the other

two accused in the darkness of night while accused Lipan Sinha was

caught red handed. Counsel submits that if the petitioner is released

on bail it would be difficult to procure his attendance during trial

because he is likely to abscond. Counsel also contends that seized

contraband involves commercial quantity. Therefore, the restrictions

on bail laid down under Section 37 of the NDPS Act will apply in this

case. Since charge sheet has been laid against the accused, he

cannot be released on bail in view of the embargo under Section 37

NDPS Act. Counsel therefore, urges the court for rejecting his bail

application.

[7] It appears from the record that on 02.12.2021 accused

applied to the Special Judge, NDPS, Kamalpur for bail. The learned

Special Judge considered his petition on merit and declined to grant

bail to him. 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. After investigation of the case police has

laid charge sheet against the petitioner. In these circumstances,

even though he could not be spotted at the place of recovery and

seizure of the contraband, his prima facie involvement in the offence

cannot be ruled out. The Hon'ble Apex Court in a catena of decisions

has held that the limitations provided under Section 37 NDPS Act

with regard to grant of bail has to be taken care of while considering

bail application of a person accused under NDPS Act involving

commercial quantity.

[8] In the case of Satpal Singh Vs. State of Punjab

reported in (2018) 13 SCC 813 the Apex Court in paragraph -3 of

the judgment 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 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.

............................................................................................."

[9] In the case of State of Kerala and Others Vrs.

Rajesh and Others; reported in 2020 12 SCC 122 the Apex Court

reiterated the principles laid down in the case of Satpal Singh

(Supra) and viewed that the jurisdiction of the court to grant bail

under NDPS Act involving commercial quantity is circumscribed by

the provision of Section 37 of the NDPS Act 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. .................."

[10] From the materials available on record, involvement of

the accused in the alleged offence cannot be brushed aside. In view

of the incriminating materials available against him with regard to

his involvement in the alleged offence and the deleterious effects

and deadly impact of such offence on society and all other facts and

circumstances of the given case, this court is of the view that it

would not be appropriate to grant bail to the accused. Therefore, his

bail application stands rejected and the matter is disposed of. Since

the charge sheet is submitted trial Court is directed to proceed with

the trial of the case and complete the trial as expeditiously as

possible.

Return the Case Diary.

JUDGE

Dipankar