Shri Bikash Ray vs The State Of Tripura Represented ...
2021 Latest Caselaw 935 Tri

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                    HIGH COURT OF TRIPURA
                          AGARTALA
                             AB No.66 of 2021
Shri Bikash Ray S/O. Late Taknath Ray, Resident of Khejurbagan,
Goalabasti, P.S- New Capital Complex, District - West Tripura.
                                               -----Applicant(s)

                                 Versus

The State of Tripura Represented by the Ld. Public Prosecutor, High
Court of Tripura, Agartala.
                                                    ----Respondent(s)

                              BEFORE

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


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

For Respondent(s)        :       Mr. Ratan Datta, PP.

                               ORDER

17.09.2021

[1] This is an application under Section 438 Cr.P.C for

granting pre arrest bail to Bikash Ray, petitioner, who is

apprehending arrest in Bishalgarh P.S. case No.2021 BLG/059 which

has been registered under Sections 20(b)(ii)(C), 25, 27A, 29 and 32

of the NDPS Act, 1985.

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

the applicant. Also heard Mr.Ratan Datta, learned PP appearing for

the State respondent.

[3] The bare facts essential for disposal of the bail

application is as under:

Sri Parthanath Bhowmik, Inspector of Police of

Bishalgarh police station lodged suo motu written FIR with the

Officer in Charge of Bishalgarh police station alleging, inter alia, that

on 24.07.2021 he received an information from own source that a

truck bearing registration No. TN47-AT 4858 (Ashok Leyland Truck)

was coming towards Bishalgarh from Udaipur and the said vehicle

was carrying dried ganja. Sri Bhowmik recorded the said information

in the general diary of the police station vide GD entry No. 8 dated

24.07.2021 and procured permission from the jurisdictional

Superintendent of Police to step into action. Then, he along with

required number of Officers and Staff left the police station vide GD

entry No. 10 dated 24.07.2021 and started noticing the vehicles which

were coming from the said direction. The suspected vehicle arrived in

front of Bishalgarh police station at 05.45 am and the same was

detained by the police team. Driver Selvaraj K of Tamil Nadu told the

police team that the vehicle was carrying rubber sheet. When police

undertook a search in the said vehicle, the driver tried to flee away.

He was however, detained and brought to police station for

interrogation. With the help of interpreter, police interrogated him for

about three hours and came to know that during the previous night

rubber sheet was loaded in his vehicle from a place called Madhab

Bari at Jirania. Thereafter, he was taken to a place between Tepania

and Killa in Gomati Tripura for loading dried ganja where he noticed

huge quantity of dried ganja stored in a place and he learnt from the

conversation of the people that Bishu Kumar Tripura was the owner

of the said contraband. 3390 Kg dried ganja wrapped in rubber sheets

was recovered from the said vehicle and the same was seized in

presence of witnesses.

[4] Pursuant to the said FIR lodged by Inspector Parthanath

Bhowmik, Bishalgarh PS case No. 2021/BLG/059 under Sections 20

(b)(ii)(C), 25, 27A, 29 and 32 of the NDPS Act, 1985 was registered

and investigation of the case was taken up.

[5] Apprehending arrest in the case, accused petitioner has

moved this court by means of filing this petition under Section 438

Cr.P.C seeking pre arrest bail.

[6] Mr.J.Bhattacharjee, learned counsel appearing for the

petitioner contends that there is no material to justify arrest and

detention of the present petitioner. The petitioner is not even named

in the FIR. Only from the submission of the learned PP in the course

of hearing of AB No.58 of 2021 his name transpired when learned PP

submitted before the court that the investigating agency was also

looking for the present petitioner. Therefore, petitioner Bikah Roy is

apprehending his arrest in the case for which he has moved this

application under Section 438 Cr.P.C.

[7] It is contended by Mr. Bhattacharjee, learned counsel

that even the FIR named accused persons have been released on bail

in this case. The driver of the vehicle from whose physical possession

the contraband was seized has also been released on bail. Counsel

therefore, submits that the present petitioner cannot be treated

differently and he may also be released on bail. Counsel refers to the

order dated 20.08.2021 of this court passed in AB 58 of 2021

whereby accused Bishu Kumar Tripura of this case was released on

anticipatory bail under similar circumstances. Learned counsel

therefore, urges for release of the petitioner on bail on any condition

whatsoever.

[8] Appearing for the prosecution, Mr. Ratan Datta, learned

PP vehemently opposes the bail application and submits that the

petitioner is a habitual drug peddler who has been charge sheeted for

similar offences in Manu P.S. Case No. 2021 MANU 004. Relying on

the case diary, Mr.Ratan Datta, learned PP also contends that it would

emerge from the CDR collected by the investigating agency that the

petitioner was having frequent conversation over cell phone with

accused driver Selvaraj K when the said driver was proceeding

towards Bishalgarh with the contraband in his vehicle. According to

learned PP, the said circumstance demonstrates that he was an active

collaborator in smuggling the said contraband.

[9] Relying on the decision of the Apex Court in STATE

OF KERALA AND OTHERS Versus RAJESH AND OTHERS

reported in (2020) 12 SCC 122, Mr.Datta, learned PP submits that in

the said case the Apex Court has succinctly held that liberal approach

in the matter of bail under NDPS case is indeed uncalled for. Counsel

submits that where the offence involves commercial quantity, Section

37 of the NDPS Act will come into play and the restrictions put under

Section 37 of the Act with regard to grant of bail shall apply.

According to learned PP, the Apex Court has laid down broad

parameters with regard to grant of bail in NDPS cases in the said

judgment which are as under:

"19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not

guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.

22. The submission made by learned counsel for the respondents that in Crime No. 14 of 2018, the bail has been granted to the other accused persons (A-1 to A-4), and no steps have been taken by the prosecution to challenge the grant of post-arrest bail to the other accused persons, is of no consequence for the reason that the consideration prevailed upon the court to grant bail to the other accused persons will not absolve the act of the respondent-accused (A-5) from the rigour of Section 37 of the NDPS Act."

[10] Also relying on the decision of the Apex Court in

SATPAL SINGH Versus STATE OF PUNJAB reported in (2018)

13 SCC 813, Mr.Datta, learned PP contends that in view of the

restrictions under Section 37 NDPS Act, bail cannot be granted to an

accused under NDPS Act involving commercial quantity without

recording the required level of satisfaction of the court about the

innocence of the accused. Counsel has relied on paragraph 14 of the

judgment which is as under:

"14. Be that as it may, the order dated 21-09-2017 passed by the High Court does not show that there is any reference

to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Section 438 or 439 CrPC without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21-09-2017 is only to be set aside and we do so."

[11] Leaned PP further argues that investigation is under

progress and materials against the petitioner are forthcoming. Under

these circumstances, his release on anticipatory bail will frustrate the

investigation of the case. It is contended by learned PP that in view of

the growing number of cases of drug trafficking in the state and the

materials available on record, his bail petition may be turned down.

[12] In the present context commercial quantity of contraband

was seized by the investigating agency. Prosecution has brought to

record the past criminal antecedent of the petitioner. The fact that he

has been charge sheeted in Manu P.S.Case No.2021/004 for similar

offence is not disputed. The case diary also contains incriminating

materials supporting the charges against him. The CDR collected and

produced by the investigating agency demonstrates that the accused had

frequent and long telephonic conversation with the accused driver of

the offending vehicle prior to seizure of the contraband from his

vehicle. The materials available on record has, thus, made out a good

prima facie case against the accused. There is merit in the submission

of learned public prosecutor that if the accused is bailed out at this

stage, fair investigation would be impaired and collection of evidence

against the accused would be obstructed.

[13] In view of the legislative mandate of Section 37 of the

NDPS Act and the judgments of the Apex Court cited to supra, this

court is of the view that in the facts and circumstances of the case, it

would not be appropriate to allow pre arrest bail to the accused.

[14] Resultantly, his bail application stands rejected and the

case is disposed of.

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

Return the CD.

JUDGE

Saikat Sarma,PA