The State Of Tripura vs Uttam Datta
2021 Latest Caselaw 281 Tri

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                        HIGH COURT OF TRIPURA
                              AGARTALA
                               BA 6 of 2021

The State of Tripura
Represented by Ld. Public Prosecutor, Hon'ble High Court of Tripura
                                                    .....................Applicant(s)

                                  Versus

Uttam Datta
S/o.Swapan Dutta, R/o. Kamalnagar, P.S. Sonamura, Dist. Sepahijala
                                                    ..................Respondent(s)

For the Petitioner(s)      : Mr. Ratan Datta, PP.

For the Respondent(s)      : Mr. J.Bhattacharjee, Adv.


                               BEFORE

          HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                                ORDER

05.03.2021

[1] This criminal revision has been filed by the state of

Tripura represented by the Public Prosecutor under the provisions of

Section 439(2) read with Section 482 of the Code of Criminal

Procedure, 1973(Cr.P.C. in short) seeking cancellation of the

Anticipatory Bail granted in favour of Sri Uttam Datta, respondent

herein by the learned Sessions Judge, Sepahijala Judicial District,

Sonamura vide order dated 25.01.2021 in bail application No. 3 of

2021. The respondent is one of the FIR named accused in Sonamura

P.S. Case No.94 of 2020 which has been registered under Section

21(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances

Act(NDPS Act in short).

[2] Heard Mr. Ratan Datta, learned PP, appearing for State

petitioner as well as Mr. J.Bhattacharjee, learned Advocate appearing

for the accused respondent.

[3] As stated above, the petitioner has invoked the jurisdiction

of this court under Sections 439(2) and 482 Cr.P.C. Section

439(2)Cr.P.C. empowers the High Court or Court of Session to direct

any person who has been released on bail under Chapter XXXIII be

arrested and committed to custody. Section 482 of the Code pertains to

inherent power of the High Court which provides that nothing in

Cr.P.C shall be deemed to limit or affect the inherent powers of the

High Court to make such orders as may be necessary to give effect to

any order under this Code, or to prevent absence of the process of any

court or otherwise to secure the ends of justice.

[4] It may now be examined as to whether the relief sought

for can be granted in favour of the petitioner in exercise of the powers

conferred on the High Court under the provisions aforesaid.

[5] A brief resume of the facts would be necessary for

disposal of the matter which is as under:

David Darlong, SI of police of Sonamura Police Station

lodged a suo moto complaint with the officer in charge of his police

station on 09.11.2020 at 9.42 hours alleging inter alia that he received

an information from his source to the effect that Dulal Pal, one of the

FIR named accused, stored huge quantity of Phensedyl in his house at

Kamalnagar. He immediately passed over the information to his higher

authority and with the approval of such higher authority, he left for the

place of occurrence along with his accompanying police staff. Having

arrived in the house of said Dulal Pal, he instructed the police staff

accompanying him to cordon the house for conducting raid in the house

of Dulal Pal. Raid was then conducted in the house of Dulal Pal.

During such raid, 16 bottles of ESCUF cough syrup were recovered

and seized which included 12 bottles KESL090 and 40 bottles KESL

015. The contraband was formally seized by him and seizure memo

was drawn in presence of witnesses. On interrogation, accused Dulal

Pal divulged the name of the present respondent namely Uttal Datta.

Accused Dulal Pal told the police officer that Uttam Datta also stored

contraband in his shop. Immediately thereafter, they conducted raid in

the shop of Uttam Datta and recovered 19 bottles of Phensedyl and 19

bottles of ESCUF from his shop. The respondent was, however, found

absconding. Police also conducted raid in his house. He was not found

at home. No contraband could be recovered from his home.

[6] Based on this information Sonamura P.S. case No.2020

SNM 094 under Sections 21(c), 25 and 29 of the NDPS Act was

registered against the accused and investigation of the case was taken

up.

[7] Apprehending arrest in the case the respondent filed an

application in the court of Special Judge (Sessions Judge) Sepahijala

District, Sonamura seeking pre arrest bail under Section 438 Cr.P.C.

which was registered as Bail Application No.72 of 2020. After issuing

notice to the prosecution, the learned Sessions Judge heard the

application of the respondent and disposed matter by his order dated

22/12/2020 in BA No.72 of 2020 whereby the learned Sessions Judge

rejected the bail application of the respondent. Relevant extract of the

order of the learned Sessions Judge is as under:

"I have perused the case record as well as CD and also considered the submission of Ld. Counsels of both sides.

On perusal of the CD it appears that there is sufficient incriminating materials is available in the evidence so far collected by I/O.

It also appears that on the basis of secret information the informant raided in the house of Dulal Paul where he recovered 160 bottles Eskuf and during raid of the house of accused Dulal Paul, he disclosed the name of accused Uttam Datta in respect of his involvement regarding store and selling the contraband drugs. Accordingly, the I/O has also raided the shop of Uttam Datta situated at Kamalnagar market and also recovered 19 bottles Eskuf and 19 bottles Phensedyl. Accordingly, the I/O of this case seized those contraband drugs by preparing seizure list in presence of witnesses.

Therefore, the involvement of accused Uttam Datta is very much clear from the evidence so far collected by I/O.

Therefore, considering the nature and gravity of offence as well as for the interest of investigation this Court finds no scope to allow the anticipatory bail of the accused petitioner Uttam Datta.

Accordingly, the same is hereby rejected."

[8] The respondent filed a second application before the same

judge under Section 438 Cr.P.C seeking Anticipatory Bail and the

learned Sessions Judge by his order dated 25.01.2021 in bail

application No.3 of 2021 granted anticipatory bail in favour of the

respondent and recorded the following observation:

"Hence, considering the aforesaid observation of the Hon'ble Court it is presumed that the 2nd application under Section 438 of Cr.P.C filed by the accused petitioner is maintainable only in respect of a ground on subsequent event and development.

On perusal of the case record it is fount that at the 1st instant the accused petitioner is conclusive that he has been falsely implicated in this case and he is a day labourer. It is hardly believable to the fact that he was actually involved in the alleged offence. But in the instant bail application the petitioner has submitted that no contraband articles was at all recovered from the shop of Uttam Datta and the involvement of this case recovered some contraband articles on the confession of one Dulal Paul, though no such contraband articles were recovered from the possession of the accused petitioner Uttam Datta nor from his shop as the informant has failed to substantiate the fact that at the time of alleged incident the accused petitioner was the owner and possession of the alleged contraband articles seized on the basis of confession another accused Dulal Paul and on this ground Ld. Counsel has also relied on a decision the Hon'ble Apex Court reported in 2018 8 SCC 271 Surinder Kumar Khanna Vs. Intelligent Officer, Directory of Revenue Intelligent wherein the Hon'ble Apex has observed that "On the touchstone of law laid down by this Court such a

confession statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused cannot be used or utilized in order to lend assurance to the Court. 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."

On perusal of the CD it is found found the alleged articles 19 bottles of Phensedyl and 19 bottles of Eskuf were seized from Kamalnagar market inside the shop of Uttam Datta on the basis of a confession of accused Dulal Paul while the informant of this case raided the house of accused Dulal Paul on the basis of specific information about storing of contraband drugs in the house of Dulal Pual of Kamalnagar.

On perusal of the CD I do not any confession statement either recorded by I/O made any prayer by I/O before the Court for recording confession statement of Dulal Paul to substantiate such fact. Moreover, no piece of paper has yet been collected on behalf of the I/O showing the alleged place of occurrence is the shop of Uttam Datta.

Therefore, considering this facts this Court is of the view that the accused petitioner Uttam Dattam is entitled to get the anticipatory bail as prayed for.

Accordingly, the same is hereby allowed.

The accused petitioner Uttam Datta is allowed to go anticipatory bail in the event of his arrest by the arresting authority on his furnishing a bail bond of Rs.75,000/- (Rupees seventy five thousand) with two sureties of like amount on condition that he shall not leave the jurisdiction of this Court without prior permission and also to co-operate the I/O during investigation as and when called for..........."

[9] Hence this petition for cancellation of pre arrest bail

granted to the respondent by the learned Special Judge, Sepahijala

Judicial District, Sonamura by his order aforesaid.

[10] Appearing for the State, Mr.Ratan Datta learned PP

submits that the learned Special Judge in his order dated 22.12.2020 in

BA No.72 of 2020 categorically observed that there were sufficient

incriminating materials against the respondent for which pre arrest bail

application of the respondent was rejected by the learned Special

Judge. It is argued by Mr.Datta, learned PP that by his subsequent order

dated 25.01.2021, the learned Sessions Judge observed that

involvement of the respondent was "hardly believable" and it appeared

to the learned Special Judge that the respondent was falsely implicated

in the case. According to Mr.Datta learned PP such contradictory

findings by the learned Sessions Judge on the same set of materials is

not permissible under the law for which the orders passed by him

warrant interference by this court.

[11] According to Mr.Datta, learned PP the case diary reveals

that 19 bottles of Phensedyl and 19 bottles of Escuf cough syrup were

recovered and seized from the shop of the respondent and as such the

involvement of the respondent in unauthorized storage of the said

contraband stands established. According to Mr.Datta, learned PP,

though the respondent was not found in his shop when the contraband

was seized from his shop, he cannot deny his possession of the same

since the shop belonged to him. In support of his contention Mr.Datta,

learned PP has relied on the decision of the Apex Court in Baldev

Singh Vs. State of Haryana reported in (2015) 17 SCC 554 wherein

the Apex Court in Paragraph 12 of the judgment has held that once the

possession of the contraband by the accused has been established, it is

for the accused to discharge the onus to prove that he was not in

conscious possession of the same. On the same issue learned PP has

also relied on the decision of the Apex Court in Madan Lal vs. State of

H.P. reported in (2003) 7 SCC 465 wherein it has been held by the

Apex Court that once the possession is established, the person who

claim that it was not conscious possession of him has to establish it

because how he came to be in possession is within his special

knowledge.

[12] Learned PP has also argued that in no circumstances a

second application under Section 438 Cr.P.C. shall be entertained

unless the petitioner can show the court new circumstances or further

developments. In support of his contention Mr.Datta, learnd PP has

relied on the decision of the Rajasthan High Court in Ganesh

Raj(Petitioner) vs. State of Rajasthan and Ors. reported in (2005)

Cri.LJ 2086 wherein the Rajasthan High Court in paragraph 25 of the

Judgment has held as follows:

"25. In the ultimate analysis, placing reliance on the ratio indicated in Kalyan Chandra Sarkar's case (supra), we hold that second or subsequent bail application under Section 438 Cr.P.C. can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where

the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of the accused. Under no circumstances the second or successive anticipatory bail application shall be entertained by the Section Judge/Additional Sessions Judge."

[13] Learned PP has further contended that Anticipatory Bail

cannot be granted to the accused on the ground that his involvement in

the offence came to light from the statement of the co accused. In

support of his contention Mr.Datta has relied on the decision of this

High Court in Haricharan Biswas Vs. State of Tripura reported in

2018 2 TLR 733 wherein this High Court in paragraph 40 of this

judgment has observed as under:

"40. The statement of a co-accused is not an evidence is all that the Apex Court has held in Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence, (2018)8 SCC271 (2-Judge Bench) but then this principle has to be applied at the end of the trial and not at the stage of grant of bail when investigation is not complete."

[14] Learned PP therefore, argues that the learned Special

Judge, Sepahijala Judicial District allowed Anticipatory Bail to the

respondent without application of mind. According to learned PP there

are strong prima facie materials against the respondent in support of his

involvement in the alleged offence and he was improperly and illegally

granted Anticipatory Bail. Learned counsel, therefore, urges the Court

to cancel his bail application.

[15] After the instant petition was filed, notice was issued to

the respondent who has entered his appearance through his appointed

advocate. In the course of hearing Mr.J.Bhattacharjee, learned

Advocate appearing for the respondent submits that Anticipatory Bail

was granted to the petitioner by the learned Special Judge after

providing full opportunity of hearing to both the parties. According to

Mr.Bhattacharjee, learned counsel, there is no allegation against the

accused that after the anticipatory bail was granted to the respondent he

ever tried or indulged in any kind of activities to hamper the smooth

investigation of the case.

[16] It is also submitted by Mr.Bhattacharjee that there is no

allegation against him that by any means he has misused the liberty

granted to him under the bail or violated any of the conditions of bail.

According to learned counsel, the Special Judge granted bail to the

respondent on consideration of the fact that the contraband was seized

from a place unknown to the accused and at the time of the seizure the

accused was not present there. Therefore, he cannot be said to have

physically possessed those contraband and as such the learned Sessions

Judge committed no wrong in granting anticipatory bail to him.

According to Mr.Bhattacharje learned Advocate, cancellation of bail is

a very harsh step which cannot be resorted to except under exceptional

circumstances. Mr.Bhattacharjee, learned Advocate has relied on the

decision of the Apex Court in MYAKALA DHARMARAJAM & ORS.

ETC. VERSUS THE STATE OF TELENGANA & ANR. delivered on

January 7, 2020 in Criminal Appeal Nos.1974-1975 of 2019 (@ SLP

(Crl.)Nos. 8882-8883 of 2019) wherein the Apex Court has held as

under:

"7. In Raghubir Singh v. State of Bihar this Court held that bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

8. It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail."

[17] I have meticulously perused the record as well as the CD

produced before this court. It is apparent that initially police conducted

raid in the house of co accused namely Dulal Pal from where huge

quantity of Phensedyl was recovered and seized. According to the

police accused Dulal Pal after arrest divulged the name of respondent

and on the basis of his statement police conducted raid in his shop and

recovered and seized 19 bottles of phensedyl and 19 bottles of escuff

and that too, in absence of the respondent.

[18] Police also raided the house of the respondent immediately

thereafter from where no contraband could be seized. Apparently,

respondent has denied to be the owner of the shop from where the

contraband was allegedly seized. There is no material on record to

support the fact that the said shop actually belonged to respondent

Uttam Datta.

[19] Learned Sessions Judge while disposing the second

application under Section 438 Cr.P.C. clearly opined that new facts and

new circumstances were produced before him from which he was

convinced that no prima facie case could be established against the

accused and on such finding he granted pre arrest bail to the accused

after giving full opportunity of hearing to both sides. The Apex Court

in the judgment cited supra has succinctly held that rejection of bail

stands on one footing but cancellation of bail is a harsh order because it

interferes with the liberty of the individual and hence it must not be

lightly resorted to. There is force in the submission of learned counsel

of the respondent that after the anticipatory bail was granted to the

respondent, there is no allegation that he has misused the liberty

granted to him in any manner.

[20] Considering all these aspects and the law enunciated by

the Apex Court in the Judgments cited to supra, this court is not

inclined to cancel the Anticipatory Bail granted in favour of the

respondent by the learned Special Judge, Sepahijala Judicial District,

Sonamura in case No.BA 3 of 2021.

Accordingly, this petition for cancellation of bail stands

rejected.

The case is disposed of.

JUDGE

Saikat Sarma, P.A