Tripura High Court
Sri Bijoy Paul vs The State Of Tripura on 5 November, 2024
HIGH COURT OF TRIPURA
AGARTALA
BA No.67 of 2024
Sri Bijoy Paul
---Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. B. N. Majumder, Sr. Adv.
Mr. R. Saha, Adv.
For Respondent(s) : Mr. Raju Datta, P.P.
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Order
05/11/2024
Learned Senior Counsel Mr. B. N. Majumder assisted by Mr.
R. Saha, Learned counsel is present for the accused petitioner in
custody. Learned P.P. Mr. Raju Datta is also present for the State-
respondent.
This bail application is filed under Section 439 of Cr.P.C. for
releasing the accused person in custody on bail in connection with
Sidhai P.S. Case No.2024 SDI 34 dated 10.06.2024 under Section
22(c)/25/29 of the NDPS Act, 1985.
In course of hearing Learned Senior counsel appearing for
the accused person in custody first of all drawn the attention of
the court the contents of the FIR and submitted that no
contraband items were seized from the possession of the accused
and furthermore Learned Senior counsel drawn the attention of
this court that the alleged land from where the alleged contraband
was seized belongs to some other person. He also referred the
search memo annexed with the bail application wherein it was
clearly mentioned that the search was made inside the dwelling
hut of Sri Bimal Paul of Gopalnagar, P.S. Sidhai and its
surrounding and ring well within his campus. But prosecution up
to this stage failed to produce any documentary evidence to show
that the present accused person in custody is the possessor of the
said land wherein the alleged contravened item was seized.
In support of his contention Learned Senior Counsel Mr. B.
N. Majumder relied upon a citation of the Hon'ble Apex court in
Bhola Singh vs. State of Punjab reported in 2011 AIR SCW
1954 wherein in para nos. 8 & 9 Hon'ble the Apex Court observed
as under:
"8. We have considered the arguments advanced by the learned
counsel. We see that Section 25 of the Act would not be applicable
in the present case as there is no evidence to indicate that Bhola
Singh the appellant had either knowingly permitted the use of the
vehicle for any improper purpose. The sine qua non for the
applicability of Section 25 of the Act is thus not made out. The
High Court has however drawn a presumption against the
appellant under Section 35 of the Act. This provision is reproduced
below:
"35. Presumption of culpable mental state:- (1) In any
prosecution for an offence under this Act which requires a
culpable mental state of the accused, the Court shall presume
the existence of such mental state but it shall be a defence for
the accused to prove the fact that he had no such mental state
with respect to the act charged as an offence in that
prosecution.
Explanation:-In this section "culpable mental state" includes
intention, motive knowledge of a fact and belief in, or reason to
believe, a fact. (2) For the purpose of this section, a fact is said
to be proved only when the court believes it to exist beyond a
reasonable doubt and not merely when its existence is
established by a preponderance of probability.:
9. While dealing with the question of possession in terms
of Section 54 of the Act and the presumption raised under Section
35, this Court in Noor Aga vs. State of Punjab and Anr. (2008) 16
SCC 417 while upholding the constitutional validity of Section
35 observed that as this Section imposed a heavy reverse burden
on an accused, the condition for the applicability of this and other
related sections would have to be spelt out on facts and it was
only after the prosecution had discharged the initial burden to
prove the foundational facts that Section 35 would come in to
play. Applying the facts of the present case to the cited one, it is
apparent that the initial burden to prove that the appellant had
the knowledge that the vehicle he owned was being used for
transporting Narcotics still lay on the prosecution, as would be
clear from the word "knowingly", and it was only after the
evidence proved beyond reasonable doubt that he had the
knowledge would the presumption under Section 35 arise. Section
35 also presupposes that the culpable mental state of an accused
has to be proved as a fact beyond reasonable doubt and not
merely when its existence is established by a preponderance of
probabilities. We are of the opinion that in the absence of any
evidence with regard to the mental state of the appellant no
presumption under Section 35 can be drawn. The only evidence
which the prosecution seeks to rely on is the appellant's conduct
in giving his residential address in Rajasthan although he was a
resident of Fatehabad in Haryana while registering the offending
truck cannot by any stretch of imagination fasten him, with the
knowledge of its misuse by the driver and others. We accordingly
allow the appeal, set aside the judgments of the Courts below and
order the appellant's acquittal. His bail bonds shall stand
discharged."
Learned Senior counsel also referred the provisions of
Section 35 of NDPS Act and referring the same Learned Senior
counsel further drawn the attention of the court that from the
contents of the prosecution there is no evidence on record at this
stage which shows culpable mental state of the accused in
committing the offence and finally he urged for releasing the
accused on bail in any condition.
On the other hand, Learned P.P. Mr. Raju Datta appearing
for the State first of all drawn the attention of this court that
earlier this present accused petitioner filed one bail application to
this High court which was finally withdrawn by him and as such
this present petition is not maintainable and by this time the
accused petitioner could not show any grounds by the second bail
application to draw an adverse inference against the prosecution
and referring the case diary Learned P.P. further drawn the
attention of the court that there is sufficient materials showing
implication of the accused with the alleged crime and he urged for
dismissal of the bail application and urged for further detention of
the accused in custody and submitted that the judgment relied
upon by the accused-petitioner is not applicable at this stage of
investigation and in support of his contention Learned P.P. relied
upon few judgments. Hon'ble Supreme Court of India in State by
the Inspector of Police vs. B. Ramu reported in [2024] 2
S.C.R. 357 wherein in para Nos.9 to 12 Hon'ble the Apex Court
observed as under:
"9. A plain reading of statutory provision makes it abundantly
clear that in the event, the Public Prosecutor opposes the prayer
for bail either regular or anticipatory, as the case may be, the
Court would have to record a satisfaction that there are grounds
for believing that the accused is not guilty of the offence alleged
and that he is not likely to commit any offence while on bail.
10. It is apposite to note that the High Court not only omitted to
record any such satisfaction, but has rather completely ignored
the factum of recovery of narcotic substance (ganja), multiple
times the commercial quantity. The High Court also failed to
consider the fact that the accused has criminal antecedents and
was already arraigned in two previous cases under the NDPS Act.
11. In case of recovery of such a huge quantity of narcotic
substance, the Courts should be slow in granting even regular bail
to the accused what to talk of anticipatory bail more so when the
accused is alleged to be having criminal antecedents.
12. For entertaining a prayer for bail in a case involving recovery
of commercial quantity of narcotic drug or psychotropic
substance, the Court would have to mandatorily record the
satisfaction in terms of the rider contained in Section 37 of the
NDPS Act."
He further referred another citation of the Hon'ble
Supreme Court of India in State of Meghalaya vs.
Lalrintluanga Sailo and Another reported in 2024 SCC Online
SC 1751 wherein para Nos.7 & 8 Hon'ble the Supreme court
observed as under:
"7. In the decision in State of Kerala and Ors. v. Rajesh and
Ors. (2020) 12 SCC 122, after reiterating the broad
parameters laid down by this Court to be followed while
considering an application for bail moved by an accused involved
in offences under the NDPS Act, in paragraph 18 thereof this
Court held that the scheme of Section 37 of the NDPS Act would
reveal that the exercise of power to grant bail in such cases is not
only subject to the limitations contained under Section 439 of the
Code of Criminal Procedure, but also subject to the limitation
placed by Section 37(1)(b)(ii), 2 (2020) 12 SCC 122 NDPS Act.
Further it was held that in case one of the two conditions
thereunder is not satisfied the ban for granting bail would
operate.
8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act
and the decisions referred supra revealing the consistent view of
this Court that while considering the application for bail made by
an accused involved in an offence under NDPS Act a liberal
approach ignoring the mandate under Section 37 of the NDPS Act
is impermissible. Recording a finding mandated under Section
37 of the NDPS Act, which is sine qua non for granting bail to an
accused under the NDPS Act cannot be avoided while passing
orders on such applications."
Learned P.P. also referred another citation of the Hon'ble
Supreme Court in Union of India vs. Rattan Mallik alias Habul
reported in (2009) 2 SCC 624 wherein in para No.9 Hon'ble the
Apex Court observed as under:
"9.The broad principles which should weigh with the Court in
granting bail in a non-bailable offence have been enumerated in a
catena of decisions of this Court and, therefore, for the sake of
brevity, we do not propose to reiterate the same. However, when
a prosecution/conviction is for offence(s) under a (2000) 8 SCC
437 special statute and that statute contains specific provisions
for dealing with matters arising thereunder, including an
application for grant of bail, these provisions cannot be ignored
while dealing with such an application."
Learned P.P. further referred another citation of the
Hon'ble Supreme Court in Union of India vs. Md. Nawaz Khan
reported in (2021) 10 SCC 100 in para-20 Hon'ble the Apex
court observed as under:
"28. As regards the finding of the High Court regarding absence of
recovery of the contraband from the possession of the
respondent, we note that in Union of India v. Rattan Mallik19, a
two-judge Bench of this Court cancelled the bail of an accused and
reversed the finding of the High Court, which had held that as the
contraband (heroin) was recovered from a specially made cavity
above the cabin of a truck, no contraband was found in the
„possession‟ of the accused. The Court observed that merely
making a finding on the possession of the contraband did not fulfil
the parameters of Section 37(1)(b) and there was non-application
of mind by the High Court.
29. In line with the decision of this Court in Rattan Mallik (supra),
we are of the view that a finding of the absence of possession of
the contraband on the person of the respondent by the High Court
in the impugned order does not absolve it of the level of scrutiny
required under Section 37(1)(b)(ii) of the NDPS Act.
30. With regard to the statement under Section 67 of the NDPS
Act, the High Court has placed abundant reliance on the inclusion
of Mohd. Arif Khan‟s name in place of the respondent‟s name in
the endorsement of translation on the statement of the
respondent. In Tofan Singh (supra), a three judge Bench of this
Court held that a statement under Section 67 of the NDPS Act is
inadmissible. The ASG (2009) 2 SCC 624 submitted that
independent of the statement, there are valid reasons to deny bail
on the basis of the material which has emerged at this stage."
I have heard both the sides at length and perused the
relevant prosecution papers including the CD produced by the I.O.
through Learned P.P.
In this case the prosecution was set into motion on the basis
of an FIR laid by one S.I. of police of Sidhai Police Station namely
Mr. N. Halam to O.C. Sidhai Police Station, Mohanpur, West
Tripura alleging inter alia that on 09.06.2024 at about 20 05 hours
ASI Jagjit Singh of 42 BSF Mohanpur BOP appeared at PS and
reported that he had an information from his reliable secret source
that one Sri Bimal Paul and his son Ajoy Paul of Gopalnagar under
Sidhai PS were storing YABA tablet inside their house premises
with intent to sell those contraband items to the local youths.
Immediately after receipt of information he brought the matter to
the knowledge of O.C. Sidhai P.S. and the matter was noted in GD
vide Sidhai PS GDE No.33 dated 09.06.2024 and as per order of
O.C. PS at 2010 hrs he along with staffs accompanied by BSR
Officer and other woman BSF personnel left for PS with the
weighing machine, clipboard and NDPS investigation kit to verify
the matter in Gopalnagar area near India-Bangladesh border in
reference to Sidhai PS GDE No.34 dated 09.06.2024 and on arrival
to the P.O. they could able to identify the accused with the help of
secret source. In the meantime Assistant Commandant of 42 BN
BSF appeared to the P.O. and after seeing the police personnel the
accused attempted to flee away from the spot but somehow they
managed to detain him and on being asked he disclosed his name
as Bimal Paul. Then he searched for local independent witnesses
at spot but no one came forward as independent witnesses during
the search. Thereafter obtaining search authorization from
Assistant Commandant he conducted search at about 2030 hours
in the house of the accused in presence of BSF & Police personnel
and in course of search they found one bundle wrapped with
brown colour cello tape containing 1000 nos, pinkish colour YABA
tablets marked as Exbt.A and another bundle wrapped with brown
colour cello tape containing 1000 nos. pinkish colour YABA tablets
marked as Exbt.B from the ring well of Sri Bimal Paul of
Gopalnagar P.S. within his house premises and total counted to be
2000 nos. of YABA tablets. Accordingly being asked he could not
give any satisfactory reply and after weight he found 182 grams of
YABA tablets without weight of brown colour cello taps. Thereafter
he seized the said recovered items and mobile phones in presence
of witnesses and Assistant Commandant and arrested the accused
Bimal Paul and another accused Ajoy Paul by this time was found
absconding. Hence he laid the FIR. Accordingly on the basis of the
written information this present case was registered and the
accused was produced before the Learned court below on
10.06.2024 and since than he is in custody.
The investigation of the case is in progress. The I.O. by this
time has proceeded with the investigation and recorded the
statement of the witnesses and arranged for sending the seized
alamats to the Forensic Laboratory for report.
From the relevant prosecution papers at this stage there is
no materials placed before this court to presume that the accused
person has not committed any offence and furthermore on perusal
of the citations as referred by Learned P.P. for the state-
respondent at this stage this court does not find any scope to
release the accused on bail. Hence the bail application filed on
behalf of the accused in custody stands rejected being devoid of
merit. It is observed that the CD is not maintained properly by the
I.O. in pursuance of the direction of the High Court. So the I.O. be
asked to maintain the CD properly in pursuance of the direction of
the High Court in letter and spirit and to take necessary steps to
expedite the investigation properly and submit the report to the
court in time. The accused has to remain J/C as before.
Return back the CD to I.O. along with a copy of this order
through Learned P.P. and also return back the LCR to the Learned
court below along with a copy of this order.
This petition is thus disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.11.06
11:00:25 +05'30'
Moumita
