Sri Goutam Nandi vs The State Of Tripura
2021 Latest Caselaw 1050 Tri

                           HIGH COURT OF TRIPURA
                                 AGARTALA

                             A.B. No. 73 of 2021

Sri Goutam Nandi
                                                          ........Petitioner(s)
                                   Versus

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

08/10/2021

This bail application has been filed under section 438 Cr.P.C

for granting pre arrest bail to Goutam Nandi who is the FIR named

accused in PR Bari PS case No. 2021 PRB 040 under sections

20(b)(ii)(C), 25 and 29 of the NDPS Ac, 1985.

[2] Allegation against him is that on the basis of a secret

information, police conducted raid in his house and recovered 30kg

dried ganja which was kept concealed in the bathroom of his dwelling

hut. SI Jaynal Hossain of PR Bari police station lodged a suo motu FIR

with the officer in charge of his police station on 23.08.2021 and on the

basis of the said FIR, the case was registered and investigation was

taken up.

[3] Apprehending arrest, the petitioner has approached this court

seeking pre arrest bail by filing this petition under section 438 Cr.P.C.

[4] Heard Mr. J. Bhattacharjee, learned advocate appearing

along with Mr. S. Ghosh, learned advocate for the petitioner. Also heard

Mr. R. Datta, learned P.P. appearing along with Mr. S. Ghosh, learned

Addl. P.P. for the State respondent.

[5] Counsel appearing for the petitioner submits that there is no

proof that the said contraband was seized from the house of the

accused because police did not find the accused at home when the

alleged search and recovery was made. Counsel refers to the seizure list

and submits that even though the house inmates of the accused was

present in the house, signature of none of those house inmates was

obtained in the seizure list. Counsel contends that the accused cannot

be kept in custody relying on a seizure list which has been

manufactured by police. It is also contended by Mr. Bhattacharjee,

learned counsel that in the FIR itself the complainant stated that the

seized item was suspected to be ganja which is yet to be confirmed

through forensic test. Therefore, accused cannot be arrested and

detained for possession of ganja until the seized substances is

confirmed to be ganja. It is also contended by the counsel of the

petitioner that petitioner is an old man and suffering from various skin

infections which he is likely to spread among the other jail inmates, if

he is arrested and put to jail. Mr. Bhattacharjee, learned counsel in

support of his contention has relied on a decision dated 24.09.2021 of

the Calcutta High Court in CRM 3059 of 2021 and contends that the

High Court has decided that when there is no recovery from the

petitioner, restrictions in section 37 of the NDPS Act will not apply in the

case. Mr. Bhattacharjee, counsel, therefore, urges the court for granting

bail to the petitioner.

[6] Mr. R. Datta, learned P.P. on the other hand opposes the bail

application on the ground that commercial quantity of contraband was

recovered from the house of the accused and the statements of the

witnesses recorded during investigation support the charges against the

petitioner that he stored dried ganja in his house which was recovered

by police after conducting raid in his house in presence of his house

inmates. Counsel submits that the accused is a drug peddler whose bail

at this stage will obstruct a full and fair investigation of the case.

Learned P.P., therefore, urges the court for rejecting the application.

[7] Perused the entire record including the updated case diary

submitted by the prosecution. Considered the submissions made at the

bar. It appears from the prosecution papers that next door neighbours

of the accused have been examined by the IO and their police

statements under section 161 Cr.P.C have been recorded. One of the

witness has stated that he identified the house of the accused to police

and during his presence police conducted raid in the house of the

accused and recovered dried ganja from the bathroom of his dwelling

hut in two sacks. Other witnesses have also given similar statement.

According to the prosecution, 30kg dried ganja was recovered from the

dwelling hut of the accused and the same has been sent to the State

Forensic Science Laboratory in sealed packets for confirmation about

the nature of the contraband. The quantity is no doubt commercial

quantity and therefore the rigors of section 37 of the NDPS Act with

regard to bail will apply in this case unless the court is satisfied that

there are reasonable grounds for believing that he is not guilty of such

offence and he is not likely to commit any offence while on bail. Since,

there are sufficient incriminating materials against the accused making

out a prima facie case against him, the court cannot come to such

conclusion to overcome the embargo of section 37 of the NDPS Act. In

the Calcutta High Court Judgment relied on by learned counsel of the

petitioner, it has been decided that section 37 of the NDPS Act will not

apply when there is no recovery at all. In the present case, commercial

quantity contraband was recovered from the house of the petitioner.

Therefore, petitioner cannot derive any benefit from the said judgment.

Since a prima facie case is made out against the petitioner, immunity

from arrest and detention under section 438 Cr.P.C cannot be granted

to the petitioner in this case.

[8] Having observed thus, the bail application stands rejected

and the matter is disposed of. Return the case diary to Mr. R. Datta,

learned P.P.

JUDGE Rudradeep