Tripura High Court
Present Address vs The State Of Tripura on 31 January, 2022
HIGH COURT OF TRIPURA
AGARTALA
Crl. Petn 50 of 2021
Shri Shantanu Mandal,
son of late Alak Mandal
resident of Neli Nagar,
Parthapratim, PS-Garfa, Kolkata,
West Bengal
Present Address
C/o-Md. Jalil Miah,
S/o Abul Jabbar of Chanban, Ward No.1
Udaipur, PS: R.K. Pur, District: Gomati.
----Petitioner(s)
Versus
The State of Tripura
----Respondent(s)
For Petitioner(s) : Mr. S. Lodh, Adv.
For Respondent(s) : Mr. R. Datta, PP
Date of hearing : 21.01.2022
Date of pronouncement : 31.01.2022
Whether fit for reporting : YES
HON'BLE MR. JUSTICE T. AMARNATH GOUD
Judgment & Order
Heard Mr. S. Lodh, counsel for the petitioner as well as Mr.
R. Datta, learned PP for the respondent.
[2] This is a petition under Section 482 of CrPC for
quashing/setting aside the impugned order dated 23.11.2021 passed by
the Special Judge, Gomati District, Udaipur in Special 20 of 2021
(NDPS) whereby Special Judge cancelled the Bail Order dated
04.09.2021 granted in favour of the petitioner and thereafter release
the petitioner on bail in terms of the order dated 04.09.2021.
[3] It is the case of the petitioner that he has been wrongly and
unlawfully arrayed in a criminal case. He stated in his petition that he
was arrested in connection with Case No.2021/RKP/090 dated
07.06.2021 under Section 22(C),25, 27(A) & 29 of NDPS Act.
Thereafter, while the investigation was being carried on, the petitioner
made several attempts for bail applications. On 04.09.2021, according
to the petitioner a bail application was moved on his behalf before the
Ld. Special Judge, and after hearing the parties vide order dated
04.09.2021 the Special Judge granted bail to the petitioner with a
condition that he should submit a bail bond of Rs.1,00,000/- (Rupees
one lakh) only with 2(two( sureties of like amount, and one of the
sureties must be a government Employee, and both the sureties should
be a Government employee, and both the sureties should be the
permanent residents of Tripura.
[4] It has been stated by the petitioner in his petition that
initially he could not get to submit the bail bond as he did not get any
bailer. Subsequently, on 21.09.2021 the bail bond was submitted before
the judge concerned but Ld. Special Judge refused to accept the bail
bond on the ground that the identity of the petitioner is doubtful.
[5] On 21.09.2021 rejecting the bail bond given on behalf of
the accused the Special Judge has observed that there is a strong doubt
about the name and address of the accused inasmuch as two names of
him have transpired as per the record i.e. Santunu Mandal as well as
Rabiul Hassan Sani. One address is at West Bengal and other address is
at Bangladesh and the third address is at Chanban, Udaipur, Tripura. In
this situation if we release him accepting the bail bond a huge
uncertainty will remain as to his whereabouts so as to bring him before
the court during the trial of the case and ultimately the case will drag
on this account and the cause of justice will suffer.
[6] Aggrieved by the order dated 21.09.2021, the petitioner in
due course of time preferred a Criminal Revision Petition being
Crl.Rev.Ptn 51 of 2021 challenging the order dated 21.09.2021 in R.K
Pur P/S case No. 90 of 2021 in this High Court. The High Court after
perusing the matter has allowed the petition by the order dated
15.11.2021 (Annexure-4 to the petition) stating that the benefit of bail
should be extended to the accused as the learned Special Judge has
granted bail to the accused after consideration of his case on merit.
[7] The matter before the Special Judge, Gomati District,
Udaipur was again heard on 23.11.20231 on a petition being filed by
the state under Section 439(2) of CrPC for cancellation of bail order
dated 04.09.2021 granted by the same court in favour of the present
accused-petitioner. The said court while re-examining the facts as
advanced by the learned PP for the state has observed as follows:
―The provision of Section 439(2), CrPC does not say
clearly that the order by which an accused has been
granted bail, cannot be cancelled irrespective of whether
he has been released pursuant to the bail order or is still
in custody for having failed to furnish bail bond. That
option remains open to the discretion of the Court.
In the light of the above, the prayer of the Ld.PP
under Section 439(2) of CrPC for cancellation of the bail of
the accused Santanu Mandal is hereby allowed and the
bail that was granted to the accused by order of this Court
dated 04.09.2021 is hereby cancelled.‖
[8] Aggrieved by the order dated 23.11.2021, the petitioner has
preferred this instant criminal petition quashing the impugned order
dated 23.11.2021 where the District Judge-cum-Special Judge has
cancelled the bail order dated 04.09.2021 granted by the same court in
favour of the accused Santunu Mandal. The counsel for the petitioner
submits that the court below which is having jurisdiction as the Special
Judge and the court which is concerned with the bail application is one
and same. He further submits that it is against the Section 439 of CrPC
in cancellation of bail application.
[9] The counsel for the petitioner has relied on a apex court
judgment in Abdul Basit alias Raju and Others vs Mohd. Abdul Kadir
Chaudhary and another reported in (2014) 10 SCC 754 where the apex
court has observed in the following manner:
―19. Therefore, the concept of setting aside an unjustified,
illegal or perverse order is different from the concept of
cancellation of a bail on the ground of accused's
misconduct or new adverse facts having surfaced after the
grant of bail which require such cancellation and a perusal
of the aforesaid decision would present before us that an
order granting bail can only be set aside on grounds of
being illegal or contrary to law by the court superior to the
court which granted the bail and not by the same court.
20. In the instant case, the respondents herein had filed
the criminal miscellaneous petition before the High Court
seeking cancellation of bail on grounds that the bail was
obtained by the petitioners herein by gross
misrepresentation of facts, misleading the court and
indulging in fraud. Thus, the petition challenged the
legality of the grant of bail and required the bail order to
be set aside on ground of it being perverse in law. Such
determination would entail eventual cancellation of bail.
The circumstances brought on record did not reflect any
situation where the bail was misused by the petitioner-
accused. Therefore, the High Court could not have
entertained the said petition and cancelled the bail on
ground of it being perverse in law.
26. In the instant case, the order for bail in the bail
application preferred by the accused-petitioners herein
finally disposes of the issue in consideration and grants
relief of bail to the applicants therein. Since, no express
provision for review of order granting bail exists under the
Code, the High Court becomes functus officio and Section
362 of the Code applies herein barring the review of
judgment and order of the Court grating bail to the
petitioner-accused. Even though the cancellation of bail
rides on the satisfaction and discretion of the court under
Section 439(2) of the Code, it does not vest the power of
review in the court which granted bail. Even in the light of
fact of misrepresentation by the petitioner-accused during
the grant of bail, the High Court could not have
entertained the respondent/informant's prayer by sitting
in review of its judgment by entertaining miscellaneous
petition.‖
[10] On the other hand, the learned PP appearing for the state
submits that the petitioner accused is involved series of criminal
activities under Narcotic drugs along with one Roshan Ali alias Rejaul
Karim and it has been learnt that Roshal Ali is involved in as many as
17 cases in Bangladesh and presently he is in their judicial custody in
Bangladesh. The relevant portion of the report as submitted by the
Superintendent of Police, Gomati District, Udaipur is extracted below
showing the multiple criminal cases registered in several Police Stations
in Bangladesh against Roshan Ali with whom the petitioner is actively
involved in Narcotics supplies and they both are roommates in Agarala,
Tripura.
1. (2QHIQ) FIR of ComillaSadarDakshin PS - 5/293, Dated 03 July
2018 under Section- 143/341/323/324/326/307/379/427
Penal Code-1860
2. (2DBS) FIR of ComillaSadarDakshin PS-49, Dated 26 May 2012
Under Section 341/302/34 Penal Code 1860.
3. (9L9N) FIR of ComillaSadarDakshin PS-53 Dated 22 April 2010
Under Section- 25B of The Special Power Act of Bangladesh 1974.
4. (HWPR) FIR of ComillaSadarDakshin PS-44, Dated 20 May 2008
under section-25 B 1 (B) of The Special Power Act of Bangladesh
1974.
5. (1SPMT) FIR of CommillaSadarDakshin PS-46/591 Dated 27
November 2018 Under Section -302/34 of Penal Code 1860.
6. (2N4WY) FIR of CommillaSadarDakshin PS-19/531 Dated 13
October 2017 Under Section 302/201/34 Penal Code 1860.
7. (B52Y) FIR of ComillaKotowali Model PS - 44 Dated 14 January
2013 Under Section 19(a) of the Arms Act 1878.
8. (8ESG) FIR of ComillaSadarDakshin PS-45 Dated 19 August 2012
Under Section 143/447/448/385/323/427/379/380/34 of
Penal Code 1860.
9. (8E2M) FIR of ComillaSadarDakshin PS-46 Dated 19 August 2012
Under Section 19(a) of The Arms Act 1878.
10. (2GNI) FIR of ComillaSadarDakshin PS-43 Dated 22 March 2011
Under Section-143/341/323/324/307/379/506 Penal Code
1860.
11. (275JD) FIR of ComillaKotowali Model PS-34 Dated 11 December
2015 under Section-19(1) 9(b)/25 of the Narcotics Control Act
1990.
12. (26MDH) FIR of ComillaSadarDakshin PS-52 Dated 30 January
2016 under Section-342/323/379/307/386/506/34 Penal Code.
13. (2U8S6) FIR of ComillaSadarDakshin PS-11/11 Dated 08 January
2018 under Section-143/448/323/325/307/427/379/506 Penal
Code 1860.
14. (2LBLF) FIR of ComillaKotowali Model PS-101/210 Dated 23
February 2017 Under Section 19(a)/19(f) of the Arms Act 1878.
15. (2E6RF) FIR of ComillaSadarDakshin PS-52/242 Dated 17 May
2017 under Section-341/448/323/380/384/420/506 Penal
Code 1860.
16. (2KB63) FIR of ComillaSadarDakshin PS-12 Dated 08 October
2006 under Section-143/341/307/323/324/326/379 Penal
Code 1860.
17. (XKM7) FIR of ComillaKotowali Model PS-01 Dated 30 September
2014 Under Section-399/402 Penal Code 1860.
[11] In order to buttress his contention, learned PP has relied on
a decision of apex court in Gurcharan Singh and Others vs. State (Delhi
Administrtion) reported in (1978) 1 SCC 118 where the apex court has
opined as follows:
16. Section 439 of the new Code confers special powers
on High Court or Court of Session regarding bail. This was
also the position under Section 498, Cr. P.C. of the old
Code. That is to say, even if a Magistrate refuses to grant
bail to an accused person, the High Court or the Court of
Session may order for grant of bail in appropriate cases.
Similarly under Section 439 (2) of the new Code, the High
Court or the Court of Session may direct any person who
has been released oil bail to be arrested and committed to
custody. In the old Code, Section 498(2) was worded in
somewhat different language when it said that a High
Court or Court of Session may cause any person who been
admitted to bail under sub-section (1) to be arrested and
may commit him to custody. In other Words, under
Section 498(2) of the old Code, a person who had been
admitted to bail by the High Court could be committed to
custody only by the High Court. Similarly, if a person was
admitted to bail by a Court of Session, it was only the
Court of Session that could commit him to custody. This
restriction upon the power of entertainment of an
application for committing a person, already admitted to
bail, to custody, is lifted in the new Code under Section
439(2). Under Section 439(2) of the new Code a High
Court may commit a person released on bail under
Chapter XXXIII by any Court including the Court of
Session to custody, if it thinks appropriate to do so. It
must, however, be made clear that a Court of Session
cannot cancel a bail which has already been granted by
the High Court unless new circumstances arise during the
progress of the trial after an accused person has been
admitted to bail by the High Court. If, however, a Court of
Session had admitted an accused person to bail, the State
has two options. It may move the Sessions Judge if
certain new circumstances have arisen which were not
earlier known to the State and necessarily, therefore, to
that Court. The State may as well approach the High Court
being the superior Court under Section 439(2) to commit
the accused to custody. When, however, the State is
aggrieved by the order of the Sessions Judge granting bail
and there are no new circumstances that leave copied up
except those already existed, it is futile for the State to
move the Sessions Judge again and it is competent in law
to move the High Court for cancellation of the bail. This
position follows from the subordinate position of the Court
of Session vis-a-vis the High Court.‖
[12] Further, he submits that the accused petitioner is also an
active drug supplier and co-resident of Rejaul Karim and both reside in
same house in Agartala, Tripura. He also submits that steps are in
progress to bring Rejaul Karim back from Bangladesh to Tripura. In
support of his contention learned PP has filed a report which has already
been stated above and the said report is taken in record. In continuance
of his submission, learned PP has further contended that in pursuance
of the Notification issued by the Government of Tripura, Law
Department, Secretariat, Agartala Government dated 26.07.2011
stating that the crime under Section 36A(4) of NDPS Act Special Judge
and the District Judge who cancels the bail application under Section
439 both are different, though the person is same. But the capacity in
which he dealt with the matter is in accordance with law. For ready
reference Section 36A(4) of the NDPS Act is reproduced hereunder:
36A(4) In respect of persons accused of an offence
punishable under Section 19 of section 24 or section 27A
or for offences involving commercial quantity the
references in sub-section (2) of section 167 of the Code of
Criminal Procedure 1973(2 of 1974), thereof to ―ninety
days', where they occur, shall be construed as reference
to ―one hundred and eighty days‖.
Provided that, if it is not possible to complete the
investigation within the said period of one hundred and
eighty days, the Special Court may extend the said period
up to one year on the report of the Public Prosecutor
indicating the progress of the investigation and the
specific reason for the detention of the accused beyond
the said period of one hundred and eighty days.
The trial court while granting bail observed that since
chargesheet is not filed in 90 days as per Section 36 of NDPS Act bail
has been granted. But the fact remains is that the time prescribed is
180 days. Therefore, the bail granted on erroneous ground.
[13] The relevant portion of the notification dated 26.07.2011 is
reproduced herein below:
Sl Judicial Officers Designated as Section of the Limits of
No. with Grade Law under jurisdiction
which or for the
purpose of
which, so
designated.
(1) (2) (3) (4) (5)
02. All Judicial Special Judge Section 36(2) of Shall depend on
Officers of under The The Narcotic the place of
Grade-I Narcotic Drugs Drugs & posting or as
(District & & Psychotropic Psychotropic may be
Sessions Judges Substances Act Substances Act, specified by the
Addl. District & 1985 (Central 1985 (Central Hon'ble High
Sessions Act No.61 of Act No. 61 of Court at the
Judges) of 1985). 1985). time of posting
Tripura Judicial of such officers
Service and also as
specified in this
Department's
Notification of
even No. dated
23.06.2011
under Section
36(1) of the
Act.
[14] It transpires from the record that the investigation is also
complete and the Charge sheet has also been filed on 08.11.2021. In
view of the changing circumstances and in view of the series of crime,
the involvement of the petitioner-accused cannot be dealt on technical
reason and the impugned order passed by the trial court cannot be set
aside. It is the duty of the judiciary to look into the broader aspect
prevailing circumstances and to control the crime against the society.
Since the accused persons are habitual offenders and there is every
possibility of removal of evidence and influencing the witness.
[15] Having taken cognizance of the instant case in hand, at the
juncture, this court finds it apposite to refer to the Article 21 of the
Constitution of India which provides as follows:
―21. Protection of life and personal liberty.--No person
shall be deprived of his life or personal liberty except
according to procedure established by law‖
[16] In view of the serious allegation made against the accused
person and prima facie as it is established that they are habitual
offenders and deals with narcotic drugs, this court finds that the right to
life and liberty of citizen is more important than the rights enunciated
for the petitioner under Section 439(2) CrPC. With regard to the
granting bail or not or cancellation, it is discretion of the court under the
relevant circumstances. Benefit to an accused under Section 439(2) of
the CrPC cannot have an overriding effect upon the life & health of our
innocent citizen under Article 21 of the Constitution of India as the
accused persons dealing in Narcotics drugs cannot be equated with an
innocent citizen at whose life and health & family disturbance the
accused person become rich and rich.
[17] In the interest of public at large to curb the narcotic drugs
in the society and the citizen should be given proper protection by
state. It also forms part of the responsibility of state to keep away
citizens from drugs and prevent drug supplies, consumption and further
protect from such accused persons dealing in narcotic drugs. Under
Article 21, Life and Liberty of a citizen is paramount & stands on high
pedestal than the technicality under Section 439 (2) of CrPC. This court
finds no fault with the order passed by the court below.
[18] Accordingly, this criminal petition stands dismissed
conforming the order dated 23.11.2021 of the lower court.
JUDGE
Dipak
