Suman Rudrapaul vs The State Of Tripura (To Be ...
2021 Latest Caselaw 865 Tri

                   HIGH COURT OF TRIPURA
                         AGARTALA
                           AB 62 of 2021
Suman Rudrapaul S/o. Nikunja Rudrapaul, R/O- Uttar Paul Para,
Near Cheli Khala S.S.A, Rangapania, Gajaria, District- Sepahijala
Tripura, PIN- 799102
                                              -----Applicant(s)

                               Versus

The State of Tripura (To be represented by the L'd Public Prosecutor,
Hon'ble High Court of Tripura)
                                                 -----Respondent(s)

                         B E F O R E

      HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
For Applicant(s)   : Mr. P.Roy Barman, Sr. Adv.
                     Mr. K.Nath, Adv.
                     Mr. D.Baidya, Adv.
For Respondent(s) : Mr. Ratan Datta, PP.

                          ORDER

08.09.2021 [1] This bail application has been filed under Section 438

of the Code of Criminal Procedure, 1973(Cr.P.C. hereunder) for

granting pre -arrest bail to accused Suman Rudrapaul who is one of

the FIR named accused in Bishalgarh P.S. case No. 2021/ BLG/006

registered under Sections 22(b)(ii)(C),25,29 and 32 of the Narcotic

Drugs and Psychotropic Substances Act, 1985(NDPS Act, for short).

[2] Heard Mr.P.Roy Barman, learned Sr. Advocate

appearing for the petitioner along with Mr.K.Nath and Mr.D.

Baidya, learned Advocates.

Also heard Mr. Ratan Datta, learned Public Prosecutor,

representing the State respondent.

[3] It appears from the record that accused petitioner filed

similar application under Section 438 Cr.P.C seeking pre arrest bail

which was considered and rejected by this court vide order dated

07.07.2021 in AB No. 39 of 2021. The said order has been annexed

by the petitioner as Annexure-5 to his petition.

[4] Appearing for the petitioner, Mr.P.Roy Barman, leaned

Sr.Advocate contends that there are changes of circumstances after

this court rejected the earlier bail application of the petitioner. With

regard to the finding of this court about his criminal antecedent,

counsel submits that the accused was never chargesheeted by police

in any other case in the past. With regard to his alleged involvement

in Kalamchoura P.S. Case No.2020 KLC 020 under Sections 21(c),

25 and 29 NDPS Act, it has been submitted that police has already

submitted chargesheet in the case against the only accused namely

Samir Sarkar and it has been specifically stated by the investigating

AB 62 of 2021

agency in the said charge sheet that in the course of investigation no

incriminating material could be collected against any other suspects.

It is further contended by Mr. Roy Barman, learned Sr. counsel

representing the accused that among the FIR named accused persons

of the present case, the accused persons from whose possession the

contraband was recovered and seized at the spot have been released

on bail by the trial court and there is no challenge on behalf of the

prosecution to those bail orders. Counsel submits that only on the

basis of the seizure of the bike of the accused from the place of

occurrence, his liberty cannot be curtailed by his arrest and detention

particularly when no contraband was recovered from his possession

either at the spot or afterwards. Counsel also contends that his wife is

pregnant who is now admitted in hospital due to her pregnancy

related complications and there is none other than her husband to

look after his wife at this moment. Counsel therefore, urges the court

to protect the accused from arrest and detention by way of granting

relief under Section 438 Cr.P.C in favour of him.

[5] Mr.Ratan Datta, learned PP on the other hand

vehemently opposes the bail application on the ground that this court

vide order dated 07.07.2021 rejected the bail application of the

petitioner on merit after recording specific findings that the materials

AB 62 of 2021

collected by the prosecution made out a prima facie case against the

accused petitioner. Learned PP, submits that there is no change in the

circumstances for the court to reconsider similar bail application of

the petitioner at this stage. Counsel submits that huge quantity of

contraband was recovered from the possession of the other accused

persons and the bike registered in the name of the present accused

petitioner was recovered and seized from the place of occurrence and

the petitioner has failed to offer any plausible explanation as to how

his bike was taken to there. In these circumstances, his involvement

in the alleged offence cannot be denied. Counsel submits that

Section 37 of the NDPS Act puts restrictions on release of a person

on bail accused of the offence under the NDPS Act involving

commercial quantity and in view of Section 37 of the Act, the

accused petitioner is not entitled to bail.

[6] Further submission on behalf of the prosecution is that

in Kalamchoura P.S.Case No. 020 of 2020, the present petitioner

was an accused. The fact that no charge sheet was filed against him

does not extinguish his involvement in the said case. Counsel has

also relied on the decision of this court in Haricharan Biswas vs.

State of Tripura and Ors. reported in 2018 2 TLR 733 wherein this

High Court held that successive bail applications by a person

AB 62 of 2021

accused under the NDPS Act is not permissible unless there is a

change in the circumstances. Observation of the court in this regard

is as under:

"35. The next issue which arises for consideration is, as to whether a bail applicant can file successive bail applications or not. The Apex Court in Kajad (supra) has held it to be not so, unless there is a change in circumstance."

[7] In the same judgment, this court while considering an

application under Section 439 Cr.P.C in a case where 289 kgs of

'Ganja' was recovered and seized by police also held that reasonable

ground appearing in Section 37 of the Act means something more

than prima facie ground and in NDPS cases, "possession" include

both corpus and animus which are necessary in law. Relevant

observation of this court in Para 36 of the decision, is as under:

"POSSESSION :

36. The Apex Court in Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 (2 Judge Bench), has squarely dealt with the meaning of the expression "possession" to include both corpus and animus which are necessary in law. This was in reference to the NDPS Act and the Court clarified as under :

"21. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant

AB 62 of 2021

element to show and establish possession.

Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others.

22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the

AB 62 of 2021

NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the accused-appellant cannot take the plea that he had committed an offence under Section 9 of the Opium Act and not under Section 18 of the NDPS Act."

[8] Learned PP submits that in the present case it is true

that there was no corpus or physical possession of any contraband by

the accused but the allegation of animus possession cannot be ruled

out in the given facts and circumstances. Counsel, therefore, urges

for rejection of the bail application.

[9] Considered the submissions of learned counsel

representing the parties. Perused the record including the updated

case diary. While rejecting the petition of the accused under Section

438 Cr.P.C vide order dated 07.07.2021, this court passed the

following order:

"[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

AB 62 of 2021

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 record prima facie demonstrate that the petitioner was engaged in processing, packing and smuggling of ganja.

[14] In view of the materials available against the petitioner and the parameters laid down by the Apex Court in the judgment cited to supra for consideration of the application for pre arrest bail, this court is of the view that it would not be appropriate to allow pre arrest bail to the petitioner. Accordingly, his bail application stands rejected and the case is disposed of."

[10] With regard to the change of circumstances, it has been

brought to the notice of this court by Mr.Roy Barman, learned Sr.

counsel appearing for the petitioner that after the said order rejecting

bail to the accused petitioner was passed, he procured the copy of the

charge sheet of Kalamchoura P.S. case No.020 of 2020 which would

show that actually the petitioner was not involved in the said case.

The investigation of the case revealed that no materials could be

collected against the petitioner and as such at the end of the

investigation no charge sheet could be filed against him. Further

change in the circumstance, according to learned counsel, is that

petitioner's wife has fallen seriously ill as a result of her pregnancy

and she has been admitted in hospital and she needs the care and

support of her husband. With regard to the presence of his bike at the

place of occurrence, counsel submits that all the other accused were

AB 62 of 2021

his neighbours who could have used his bike for such illegal purpose

beyond his knowledge. Counsel submits that only on the basis of the

fact that his bike was found at the place of occurrence, he cannot be

held responsible since no iota of contraband was seized from his

possession at any point of time.

[11] Considered the submissions of learned counsel of the

parties. I find merit in the submissions of Mr.Roy Barman, learned

Senior Advocate. It is true that other than the seizure of his bike

from the place of occurrence, the materials available against him do

not justify his arrest and detention in the case. Moreover, illness of

his wife and her helplessness are also considered by this court.

Circumstances being completely distinguishable the ratio decided by

this court in the case of Haricharan Biswas(supra) does not apply to

this case. Having considered the submissions of learned counsel

appearing for the parties and the changed circumstances and also

keeping in mind the settled parameters for consideration of pre arrest

bail, this court is of the view that it would be appropriate to grant pre

arrest bail to the petitioner.

[12] Accordingly, it is ordered that in the event of his arrest,

petitioner be released on bail on his furnishing bail bond of a sum of

AB 62 of 2021

Rs.25,000/- with two local sureties of the like amount to the

satisfaction of the IO on the following conditions:

(i)The petitioner will report at the police station and meet the IO twice in a week for the next 02 months for the purpose of investigation.

(ii)He will not leave the state without the prior permission of the investigating officer.

(iii)He will not try to influence any of the witnesses of the case or tamper with the evidence in any manner whatsoever.

[13] In terms of the above, his bail application stands

allowed and disposed of.

Interim application(s), if any, also stands disposed of.

Return the CD.

JUDGE

Saikat Sarma, PA

AB 62 of 2021