Tripura High Court
Ranjan Dutta Choudhury vs State Of Tripura on 27 January, 2023
HIGH COURT OF TRIPURA
AGARTALA
B.A.No.01 of 2023
Ranjan Dutta Choudhury
..........Applicant(s)
Versus
State of Tripura
..........Respondent(s)
For Applicant(s) : Mr. P.K. Biswas, Sr. Adv.
Mr. P. Majumder, Adv.
For Respondent(s) : Mr. R. Datta, P.P.
HON'BLE THE CHIEF JUSTICE (ACTING)
Order
27.01.2023
Heard Mr. P.K. Biswas, learned senior counsel assisted by Mr. P.
Majumder, learned counsel appearing for the applicant as well as Mr. R. Datta,
learned P.P. appearing for the State.
2. The present bail application has been filed seeking bail in respect
of the accused person who has been arrested in connection with GRPS 09/2022
since 19.12.2022 on surrender for the last 17 days. The Special Judge, Court
No.4, West Tripura, Agartala dated 19.12.2022 being GRPS 09/2022 has
passed the following order :
"None of the referred cases deal with any penal provision of
NDPS Act which is a Special Act having separate mandate of
law standing in a different footing. Section 37 of NDPS Act is
an exception to general provision of granting bail, which can
be considered as a bar in granting bail in connection with
NDPS cases involving commercial quantity of contraband
articles in which prima facie material exists against the
accused. From the record as well as prayer of the I.O. which
was filed to show the accused being arrested, prima facie
material has been found against the present accused and so
the bail petition is rejected."
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Aggrieved by the said order the present bail application has been
filed.
3. During the course of argument, Mr. P.K. Biswas, learned senior
counsel appearing for the applicant has contended that it is not known to the
applicant as to how many cases have been registered against him and though
he was directly not involved and he was not shown as accused only on the
statement of the co-accused repeatedly as and when the bail was granted in
one case and in another matter he was taken into custody. The applicant has
not been served with any FIR and thus, the applicant is not aware with regard
to the number of cases against him.
4. Learned senior counsel has further contended that the
respondent is expressly arbitrary and also violates Article 21 of the Constitution
of India affecting the life and liberty of the citizen.
5. Mr. R. Datta, learned P.P. appearing for the State has contended
that the applicant is a habitual offender and a leader of organized racket of
illegal trade of contraband items and involved in three NDPS cases.
6. According to learned P.P. in one particular case the accused
person has stated that his spouse and daughter is unwell and hospitalized and
relying on the statement made by the counsel, the court below has granted bail
and also insisted that necessary medical documents has to be proved and
needs to be filed before the court. In spite of giving an opportunity, no
documents have been placed before this court in this regard. The prosecution
has also taken steps for filing cancellation of bail application bringing into the
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notice that the accused persons is an habitual offender and he is not entitled
for granting any bail and prayed to cancel the same.
Heard both sides.
7. It is relevant to extract the information regarding the cases
registered against the accused person herein :
"(i) Agartala GRPS Case No 2022/GRP/007 dated 26.04.2022
U/s 21(C)/29 of NDPS Act. In this case, 9312 bottles of
Phensedyl and Eskuf Syrup were seized on 26.04.2022 which
are commercial in quantity. Accused person was arrested in
this case on 30.07.2022.
(ii) Agartala GRPS Case No. 2022/GRP/009 dated 30.04.2022
U/s 21(C)/29 of NDPS Act. In this case, 30,080 bottles of
Eskuf Cough Syrup were seized which are commercial in
quantity. Accused person has surrendered in connection with
this case before the Ld. Spl. Judge, Court No.4, Agartala on
19.12.2022. He is in Judicial Custody in this case.
(iii) Agartala GRPS Case No. 2021/GRP/008 dated 27.09.2021
U/s 21(C)/29 of NDPS Act. In this case 620 bottles of Eskuf
Syrup were seized which are commercial in quantity. Ld. Spl.
Court was pleased to show him arrested in connection with
the above noted case on 13.01.2023 based on the prayer of
the I/O."
8. Now while considering the above crime and the request of the
accused person for granting bail it becomes necessary for considering Section
37 of NDPS Act which reads as under :
37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),-
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for 2[offences
under section 19 or section 24 or section 27-A and also for
offences involving commercial quantity] shall be released on
bail or on his own bond unless--
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
2) The limitations on granting of bail specified
in clause (b) of sub-section (1) are in addition
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to the limitations under the Code of Criminal
Procedure, 1973 (2 of 1974) or any other law
for the time being in force, on granting of bail.]
There is no reason for interference with the prosecution for
granting any bail to the applicant in the light of Section 37 of NDPS Act.
9. In order to buttress his submission, learned P.P. has referred on a
decision of the apex court in State of Kerela and Others versus Rajesh
and Others reported in (2020) 12 SCC 122 where the apex court has
categorically stated that there is no alternative except the consideration of the
twin conditions as prescribed under Section 37 of the NDPS Act. The relevant
paras reads as under :
"4. On an application filed for postarrest bail by
accused respondent(A5), learned Additional
Sessions Judge while noticing the mandate
of Section 37(1)(b)(i) and (ii) of the NDPS
Act observed that there was a prima facie
material to presume that the accused
committed the offence punishable
under Section 20(b)(ii)(c) and Section 29 of the
NDPS Act and rejected the application for post
arrest bail vide order dated 21st February, 2019
which came to be challenged at the instance of
the accused respondent filing bail application
before the High Court.
5. The Learned Judge of the High Court without
even noticing Section 37 of the NDPS Act and
taking note of the fact that other accused
persons in Crime No. 14/2018(A1 to A4) since
have been released on bail, granted him post-
arrest bail under the order impugned dated
10.05. 2019 which is a subject matter of appeal
before us.
Facts
of Crime No. 19/2018
6. The accused respondents in Crime No.
19/2018 are registered at excise circle office,
Thiruvananthapuram alleging commission of
the offence punishable under Section
20(b)(ii)(c) of the NDPS Act. It may be noticed
that A5 in Crime No. 14/2018 is A1(Shajimon)
in Crime No. 19/2018 and other accused, i.e.
Rajesh is A3. The case of prosecution is that on
25.10.2018 at about 5.45 PM at Aristo
Junction, Thiruvananthapuram, accused
respondent (ShajimonA1) along with two other
persons including A3(Rajesh) were found to be
in possession of 1.800 kg of hashish oil. They
were arrested on 25.10.2018 for offence
punishable under Section 20(b)(ii)(c) of the
NDPS Act. After investigation, charge sheet was
filed on 17.04.2019. Both the accused
respondents(A1 and A3) filed their respective
postarrest bail application before the Sessions
Judge, Thiruvananthapuram which came to be
dismissed after assigning cogent reasons under
Order dated 21st February, 2019 and both of
them preferred their bail application before the
High Court. The High Court vide its order dated
10.05.2019 granted bail to A1 and A3 in Crime
No. 19/2018 and observed that both the
accused have completed 195 days in judicial
custody and their further detention is not
necessary as nothing remains to be investigated
against them. Although Section 37 of NDPS Act
has been referred to by the learned Single
Judge in the impugned order not for the
purpose of showing its compliance, but to
justify due application of mind in taking
decision to grant post arrest bail under Order
dated 10.05.2019."
10. Learned senior counsel further submits that
negation of bail is the rule, and its grant is an
exception under Section 37(1)(b)(ii) of the
NDPS Act. For granting bail, the Court must, on
the basis of the record produced before it, be
satisfied that there are reasonable grounds for
believing that the accused is not guilty of the
offences with which he has been charged, and
further he is not likely to commit any offence
while on bail.
11. Learned senior counsel further submits that
the conditions for granting bail, specified
in Section 37(1)(b)(ii) are in addition to the
limitations provided under the CrPC, or any
other law for the time being in force regulating
the grant of bail. Liberal approach in the matter
of bail under the NDPS Act is uncalled for. In
support of his submission, learned senior
counsel has placed reliance on the judgment of
the threeJudge Bench of this Court reported in
Satpal Singh Vs. State of Punjab 2018(13) SCC
813.
17. The jurisdiction of the Court to grant bail is
circumscribed by the provisions of Section 37 of
the NDPS Act. It can be granted in case there
are reasonable grounds for believing that
accused is not guilty of such offence, and that
he is not likely to commit any offence while on
bail. It is the mandate of the legislature which
is required to be followed. At this juncture, a
reference to Section 37 of the Act is apposite.
That provision makes the offences under the
Act cognizable and nonbailable. It reads thus:
"37. Offences to be cognizable and non-
bailable.--(1) Notwithstanding anything
contained in the Code of Criminal Procedure,
1973 (2 of 1974),--
(a) every offence punishable under this Act
shall be cognizable;
(b) no person accused of an offence punishable
for [offences under section 19 or section
24 or section 27A and also for offences
involving commercial quantity] shall be
released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified
in clause (b) of subsection (1) are in addition to
the limitations under the Code of Criminal
Procedure, 1973 (2 of 1974), or any other law
for the time being in force on granting of bail."
(emphasis supplied)
10. Though repeatedly the cases have been registered and the
prosecution is linking the applicant with the above offences, it is a case for the
counsel for the applicant that he is not directly not involved in the case and he
is an employer and upon the statement of the court the case has been
registered and he has been apprehended.
11. In view of the seriousness of the above cases as noted above,
there is a huge quantity of Eskuf Cough Syrup identified by the State of Tripura
that the Syrups made of Narcotic drugs are causing health hazard to the local
citizens and it has become an illicit transaction and smuggling of narcotic drugs
from Tripura to Bangladesh. It is a premature stage to say that whether the
applicant out of innocent is involved in the said crime or not. However, since
the investigation is in progress, and in view of the seriousness of crime of huge
quantity of Eskuf Cough Syrup and in view of unauthorized sale of that syrup in
the local market, this court is of the opinion that it is not the right time to grant
bail to the applicant and accordingly, he is not entitled to.
12. Since with regard to the contentions made by Mr. Biswas, learned
senior counsel appearing for the applicant that without furnishing any
information about the cases registered against the accused person, how he can
be arrested repeatedly, the learned P.P. upon instruction has reported before
this court that in respect of all the cases wherever the accused person is
involved, the relevant information has been provided to him and it is open for
him to take steps in accordance with law.
In view of the same, this court feels that no further directions be
issued. Hence, the bail application stands dismissed.
CHIEF JUSTICE(ACTING)
Sabyasachi B
