Tripura High Court

Sri Suman Rudra Paul vs The State Of Tripura on 7 July, 2021

                              HIGH COURT OF TRIPURA
                                     AGARTALA
                                 A.B No. 39 of 2021
Sri Suman Rudra Paul
                                                      ............... Petitioner(s).
                                       Vs.
The State of Tripura.
                                                     ............... Respondent(s).

For Petitioner(s) : Mr. J. Bhattacharjee, Adv.

For Respondent(s)         :     Mr. R. Datta, P.P.


               HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                                        Order

07/07/2021

[1]                 This application under section 438 of the Code of

Criminal Procedure (Cr.P.C hereunder), 1973 has been filed by the

petitioner for granting pre arrest bail to him in Bishalgarh PS case No.

2021/BLG/006 registered under sections 20(b)(ii)(C) read with sections

25, 29 and 32 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (NDPS Act for short).

[2] The case as put forth by the prosecution, briefly stated,

is as under:

Sri Sanjoy Majumder, Sub Inspector of police of

Bishalgarh police station received an information from the secret source

of police on 03.02.2021 at 11.05 hours that the petitioner along with

the other FIR named accused of this case was processing and packing

dried ganja in an area covered by a jungle at Chelikhala, Bishalgarh for

the purpose of smuggling of the said contraband to Bangladash. The

information was recorded in the general diary of the police station vide

Bishalgarh PS GDE No. 015 dated 03.02.2021. Thereafter, the said

police officer sent the information to the jurisdictional Superintendent of

police and the Additional Superintendent of police as well as Sub-

Divisional police officer and sought for their permission to carry out

search and seizure at Chelikhala, Paul Para where the alleged activities

of processing and packing of dried ganja were being carried out by the

petitioner and his associates. In response, the Superintendent of police

instructed the officer in charge of Bishalgarh police station to take

appropriate action to book the offenders. The same was also recorded

in the general diary of police station vide GD entry No. 016 dated

03.02.2021. Thereafter, vide GD entry No. 017 dated 03.02.2021,

Debasish Saha, officer in charge of Bishalgarh police station along with

said Sanjoy Majumder, Sub-Inspector of police and Bijoy Das and Raju

Bhowmik, both Sub-Inspectors and other police staff left the police

station for the place of occurrence. Having arrived at Chelikhala, Paul

para, the said police team cordoned the area and detained two accused

namely, Manik Rudra Paul and Biswajit Rudra Paul who were found

processing and packing dried ganja by setting up a unit for this purpose

in the said jungle. Seeing police, the present accused fled leaving his

motor bike at the spot. The police team recovered and seized huge

quantity of packed and unpacked dried ganja weighing 200.26 Kgs, the

tools and machines of the ganja processing unit setup by the accused

persons, three motor bikes and the mobile phone of one of the accused

persons. On interrogation of the arrested accused persons, police came

to know that they along with present petitioner Suman Rudra Paul were

engaged in smuggling out dried ganja across the border to Bangladesh.

The arrested accused persons were then brought to the police station

along with the seized contraband, the motor bikes and the tools and

machineries of their ganja processing unit.

[3] Said Sanjoy Majumder, Sub-Inspector of police lodged

a suo-motu FIR against the petitioner and the two arrested accused

which has been registered as Bishalgarh PS case No. 2021/BLG/006

under sections 20(b)(ii)(C) read with sections 25, 29 and 32 of the

NDPS Act. The other two accused persons who were arrested at the

spot are still in custody. Present petitioner also filed similar application

before the Special Judge at Bishalgarh in Sepahijala Judicial District

seeking pre arrest bail under section 438, Cr.P.C. The learned Special

Judge turned down the said application by a detailed order after hearing

the counsel representing the parties.

[4] Heard Mr. J. Bhattacharjee, learned counsel appearing for

the petitioner as well as Mr. R. Datta, learned P.P appearing for the State

respondent.

[5] Mr. J. Bhattacharjee, learned counsel of the petitioner

has contended that the petitioner is entitled to the protection from

arrest and detention because there is no material to justify his arrest

and detention in this case. According to Mr. Bhattacharjee, learned

counsel, there is no evidence to suggest that the alleged contraband

was seized from the possession of the petitioner because he was not

present at the spot when the search operation was carried out by police

and the contraband was seized. Further contention of Mr.

Bhattacharjee, learned counsel is that compliance of the provisions of

section 42 of the NDPS Act is a sine qua non for every search, seizure

and arrest carried out under NDPS Act. It is contended by Mr.

Bhattacharjee, learned counsel, in this case the search operation was

carried out and the arrest was made by police in total disregard of Sub

Section (2) of Section 42 of the NDPS Act and as a consequence, the

arrest of the present petitioner would be grossly illegal. According to Mr.

Bhattacharjee, learned counsel, non compliance of the statutory

provision of section 42(2) of the NDPS act has vitiated the entire

proceedings initiated by the prosecution agency and therefore, accused

petitioner is entitled to the protection under section 438 Cr.P.C.

[6] In support of his contention Mr. Bhattacharjee, learned

counsel has relied on the decision of the Apex Court in Sarija Banu

Alias Janarthani Alias Janani & Anr. Vs. State Through Inspector

of Police reported in (2004) 12 SCC 266 where the accused

petitioners were granted bail by the Apex Court in a case registered

under NDPS Act observing that compliance of Section 42 was

mandatory and was a relevant fact which should have engaged the

attention of the court while considering the bail application. Counsel has

also referred to the decision of this High Court in Khalek Miah Vs.

State of Tripura reported in (2016) 1 TLR 617 wherein this court

granted bail to the accused petitioners in a case registered under

section 20 NDPS act on the ground of non compliance of section 42(2)

of the NDPS act observing as under:

"9. As far as the present case is concerned, there is apparent violation of Section 42(2) of the NDPS Act and, therefore, following the law laid down by the Apex Court in Sarija Banu alias Janarthani alias Janani and another v. State through Inspector of Police, [(2004) 12 SCC 266], I am compelled to grant bail to the accused persons on the following terms and conditions."

[7] Learned Counsel for the petitioner has also relied on

the decision of the Apex Court in Surinder Kumar Khanna Vs.

Intelligence Officer, Directorate of Revenue Intelligence reported

in (2018) 8 SCC 271; AIR 2018 SC 3574 whereby convict appellants

were released from the charge of Section 21(c) read with Section 29 of

the NDPS Act on the ground that there was no substantive piece of

evidence against them except the confessional statements of the co-

accused. The Apex Court released the appellants observing as under:

"13. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no

material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co- accused and can at best be used or utilized in order to lend assurance to the Court.

14. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence."

[8] Relying on the said judgment in Surinder Kumar

Khanna (Supra), Mr. J. Bhattacharjee, learned counsel of the petitioner

argues that situation is same in the case in hand because the petitioner

has been named in the FIR only on the basis of the statement of the

arrested accused persons and there is no other material to justify his

arrest and detention. Learned counsel, therefore, urges the court to

grant his application for pre arrest bail on similar ground. The counsel

has also relied on the decision dated 22.02.2019 of this court in AB No.

149 of 2018 (Tinku Kumar Dey Vs. State of Tripura) contending that by

the said decision this High Court allowed pre arrest bail to the accused

petitioner who was booked under the same charges on the ground that

the place from where dried ganja was recovered was neither owned nor

possessed by the petitioner. Moreover, he was implicated in the case on

the sole statement of the co-accused. According to Mr. J. Bhattacharjee,

learned counsel, the case in hand is squarely covered by the said

decision of this High Court in the case of Tinku Kumar Dey Vs. State

of Tripura (A.B. No. 149 of 2019)(supra) as the investigating agency

could not produce any material to show that the place from where the

alleged contraband was seized was owned/titled or possessed by the

present petitioner and he was implicated in the FIR on the basis of the

statements given by the arrested accused persons. Learned counsel,

therefore, vehemently argues for granting pre arrest bail to the

petitioner.

[9] While opposing the bail application, Mr. R. Datta,

learned P.P emphatically submitted that the provision of Section 42 was

meticulously followed by the investigating agency while carrying out

search, seizure and arrest of the accused persons. It was also argued

by Mr. Datta, learned P.P that the present accused was implicated in the

FIR not only on the basis of the statement of the arrested accused

persons. According to Mr. Datta, learned P.P, the case diary

demonstrates that sufficient materials have been gathered by the

investigating agency against the present petitioner which perfectly

would justify his arrest and detention. It is contended by Mr. Datta,

learned P.P that during search at the alleged place at Chelikhala, Paul

Para in Bishalgarh, police seized three motor bikes, one of which was a

Royal Enfield bearing Chassis No.ME3U3S5F2LM022245 and Engine

No.U3S5F1LM652120. The investigating agency enquired into the

ownership of the said motor bike. Authorized dealer of the said motor

bike by supplying documents to the investigating agency confirmed that

said motor bike was purchased by the present petitioner from the said

dealer on 07.01.2021. The first informant has categorically stated in his

FIR that while they arrived at the place of occurrence which was

covered by a jungle, the present petitioner managed to escape.

[10] Learned P.P has also argued that the present

petitioner is also an accused in Kalamchara PS case No. 2020KLC020

registered under Sections 21(c), 25 and 29 of the NDPS Act for which

notice has been issued under Section 67, NDPS act to the petitioner by

the investigating agency seeking his appearance at the police station.

Learned P.P has produced the said notice along with the case diary. It is

also contended by learned P.P that several cases against the arrested

accused persons have been registered under the NDPS Act. The two

arrested accused along with the present petitioner are operating in a

gang for smuggling contraband across the border. It is contended by

Mr. R. Datta, learned P.P that his pre arrest bail would spoil the entire

investigation of the case and as such learned P.P seriously opposes the

bail application. With regard to the compliance of Section 42(2) of the

NDPS Act, Mr. R. Datta, learned P.P relies on the extract of the GD

entry No. 015, 016 and 017 dated 03.02.2021 and producing the same

before the court, learned P.P submits that the said extract of the

general diary of Bishalgarh police station would clearly show that there

was a perfect compliance of Section 42(2) NDPS Act in the search,

seizure and arrest of the accused persons because soon after the

information was received by police, the officer in charge of the police

station intimated the same to the jurisdictional Superintendent of police

as well as the Additional Superintendent of police and the Sub-Divisional

police officer after taking down the information received from their

secret source into writing. Learned P.P, therefore, argues that there is

no ground at all to grant pre arrest bail to the petitioner.

[11] Considered the submissions of learned counsel

representing the parties. Examined the materials placed before this

court.

[12] In Siddharam Satlingappa Mhetre Vs. State of

Maharashtra & Ors. reported in (2011) 1 SCC 694 the Apex Court

has laid down the parameters which are required to be taken into

consideration while dealing with an application for anticipatory bail

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 accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication 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] It is crystal clear from the documents adduced on

behalf of the prosecution that the investigating agency complied with

section 42(2) of the NDPS Act, 1985 while making the search and

seizure and arresting the accused persons. Moreover, the antecedent of

the petitioner has also been brought to record which shows that there is

another case pending against him on similar charges. It is also

established by the prosecution that one of the seized bikes from the

place of occurrence was owned by the petitioner which was bought by

him few months before the occurrence. The petitioner could not offer

any explanation as to how his bike was taken to the place from where

police seized the contraband and spotted the other two accused. The

contraband seized is of huge quantity and the materials available on