Tripura High Court
The State Of Tripura vs Badal Miah on 17 January, 2025
1
HIGH COURT OF TRIPURA
AGARTALA
B.A. No.88 of 2024
The State of Tripura
Represented by the Secretary to the Government of Tripura,
Home Department, Agartala.
-----Applicant(s)
Versus
Badal Miah,
S/o Md. Kuddus Miah,
Resident of Charipara, Sachindralal,
P.S.- Amtali, District- West Tripura.
-----Respondent (s)
For Applicant(s) : Mr. Raju Datta, P.P.
For Respondent(s) : Mr. P. Sen Choudhury, Adv.
HON'BLE MR. JUSTICE BISWAJIT PALIT
Order
17/01/2025
This is an application under Section 483(3) read with
Section 528 of Bharatiya Nagrik Suraksha Sanhita, 2023 for
cancellation of interim bail granted to the respondent-accused
namely, Sri Badal Miah vide order dated 06.09.2024 in
connection with case No.2024 AMT 104 under Section
21(b)/22(c)/23/25/27/27(A)/29 of NDPS Act.
Heard Learned P.P., Mr. Raju Datta appearing on
behalf of the State-petitioner and also heard Learned Counsel,
Mr. P. Sen Choudhury appearing on behalf of the respondent-
accused.
Taking part in the hearing, Learned P.P. first of all
drawn the attention of the Court that on the basis of an FIR laid
by one Om Prakash Swami, Assistant Commandant of 42 Bn
BSF to O/C Amtali Police Station on 19.08.2024, this present
case was registered and in course of investigation, the principal
accused, Ibrahim Miah was arrested and taken into custody as a
considerable quantum of contraband item of commercial
quantity was found under his possession. Thereafter, in course
of investigation, the I.O. of this case produced the accused
under arrest before the Court of Learned Special Judge, Court
No.4, Agartala, West Tripura on 06.09.2024 and on that day the
Learned Special Judge without application of proper mind
granted interim bail to the said respondent-accused till
30.09.2024 and after that on 30.09.2024 his period of interim
bail was further extended till 05.11.2024 and on that day,
Learned Special Judge further extended the period of interim
bail till 18.12.2024 and on 18.12.2024 Learned Special Judge
again extended the period of interim bail till 25.01.2025 with an
observation that Section 37 of NDPS Act would not attract in
this case. Learned P.P. in course of hearing submitted that the
Learned Special Judge without application of proper mind
misinterpreted and misread the provision of Section 37 of NDPS
Act and allowed the bail to the respondent-accused which was
illegal and unwarranted by law and legally not permissible in the
eye of law.
Learned P.P. further submitted that there are
sufficient materials showing implication of the present accused
with the alleged crime but simply on the ground that "nothing
was found under his possession" by the I.O. cannot be a sole
ground for granting bail to him in view of the principles of law
laid down by the Hon‟ble Apex Court in different cases. So, in
summing up, Learned P.P. submitted that the order passed by
Learned Special Judge was without non-application of mind, as
such the interference of the Court is required and urged for
setting aside the order dated 06.09.2024 passed by Learned
Special Judge, Court No.4, West Tripura, Agartala in granting
interim bail to the respondent-accused and referred few
citations.
On the other hand, Learned Counsel representing the
respondent-accused submitted that on 06.09.2024 the
respondent-accused was produced under arrest before the
Learned Special Court and on that day after hearing both the
sides and considering the Case Diary, Learned Special Judge
granted interim bail to the accused. Learned Counsel further
submitted that in the FIR there was no implication of the
respondent-accused showing his involvement with the alleged
crime and in course of investigation no contraband item was
found under his possession for his detention in custody. So,
Learned Special Judge considering the materials on record
rightly granted bail to the respondent-accused by order dated
06.09.2024 which was thereafter extended time to time and
finally by the last order dated 18.12.2024, Learned Special
Court came to an observation that Section 37 of NDPS Act
would not attract in this case and there was no infirmity in the
order passed by Learned Special Judge and finally submitted
that Learned Special Judge after considering the materials on
record rightly and reasonably allowed interim bail to the
respondent-accused and urged for dismissal of the application
for cancellation of the bail filed by the prosecution before this
Court and also urged to allow the respondent-accused to remain
on bail as ordered earlier.
In this case, the prosecution was set into motion on
the basis of an FIR laid by the informant Sri Om Prakash Swami,
Ac, Coy Commander „D‟ Coy 42 Bn. BSF to O/c Amtali P.S.
alleging inter alia that on 18.08.2024 at about 1445 hrs. on a
specific information regarding narcotics items in possession of
one Indian national, one QRT party of BSF jawans carried out
search operation in general area of village Chari Para in
alignment of BP No.2026/MP nearby Barber shop namely „Rahul
Hair Cutting shop‟ owned by one Manik Sarkar and during
search operation one Indian National namely Ibrahim Miah was
apprehended nearby Barber shop by the said BOP party headed
by Inspector Santosh Kumar Gupta along with others and after
apprehension, it was found that the said individual was having
possession of huge quantum of narcotic items and thereafter in
presence of witnesses, he was thoroughly searched and in
course of search, 14 nos. of small plastic containers suspected
to be brown sugar was recovered from his possession. After said
preliminary enquiry the A/P Ibrahim Miah disclosed that he was
in possession of approximately 1000 nos. of YABA Tablets which
he had hidden in nearby area of Nischintpur Railway Station.
Thereafter, search was carried out near Chari Para rail tracks
when they could recover one small plastic container which was
containing 05 nos. of plastic packets and one of the packets was
opened for verification in presence of witnesses when it was
found that there were 200 nos. of Suspected YABA Tablets in
one plastic packet and accordingly, they took all the seized
contraband items into their custody and after that handed over
the same to In-charge, Amtali P.S. for taking necessary legal
action along with the accused and on the basis of that FIR
Amtali P.S. Case No.104/2024 under Section
21(b)/22(C)/23/25/27/27(A)/29 of NDPS Act was registered and
said Ibrahim Miah was taken into custody and he was produced
under arrest before the Court on 19.08.2024 and since then, he
is lodging in custody. Thereafter, in course of investigation, the
respondent-accused Badal Miah was produced under arrest
before the Learned Special Judge on 06.09.2024.
I have gone through the relevant prosecution papers
and also the case diary produced by the IO. For the sake of
convenience, I would like to refer herein below the relevant
provision of Section 37 of the NDPS Act which provides 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
[offences under Section 19 or Section 24 of 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 which on bail.
(2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations
under the Code of Criminal Proceudre, 1973 (2 of 1974), or
any other law for the time being in force on granting of
bail]."
In course of hearing of argument, Learned P.P.
representing the state-applicant referred few citations. For the
sake of brevity, all the citations are mentioned herein below.
Hon‟ble Supreme Court of India in Union of India versus
Rattan Mallik alias Habul reported in (2009) 2 SCC 624 in
para Nos. 16 & 17 observed as under:
"16. Merely because, according to the
learned Judge, nothing was found Q from
the possession of the respondent, it could
not be said at this stage that the
respondent was not guilty of the offences
for which he had been charged and
convicted. We find no substance in the
argument of learned counsel for the
respondent that the observation of the
learned Judge to the effect that "nothing
has been found from his possession" by
itself shows application of mind by the
learned Judge tantamounting to
"satisfaction"? within the meaning of the
said provision. It seems that the
provisions of the NDPS Act and more
particularly Section 37 were not brought
to the notice of the learned Judge.
17. Thus, in our opinion, the impugned
order having been passed ignoring the
mandatory requirements of Section 37 of
the NDPS Act, it cannot be sustained.
Accordingly, the appeal is allowed and the
matter is remitted back to the High Court
for fresh consideration of the application
filed by the respondent for suspension of
sentence and for granting of bail, keeping
in view the parameters of Section 37 of
the NDPS Act, enumerated above. We
further direct that the bail application
shall be taken up for consideration only
after the respondent surrenders to
custody. The respondent is directed to
surrender to custody within two weeks of
the date of this order, failing which the
High Court will take appropriate steps for
his arrest."
Referring the same, Learned P.P. drawn the attention
of this Court that in this case, all though, no contraband items
was recovered from the possession of the respondent-accused
but without considering the available materials on record
Learned Special Judge allowed interim bail to the respondent-
accused which was unwarranted and impermissible in the eye of
law and also contrary to the provision of Section 37 of NDPS
Act.
Learned P.P. thereafter referred another citation of
the Hon‟ble Supreme Court of India in Union of India through
Narcotics Control Bureau, Lucknow versus Md. Nawaz
Khan reported in (2021) 10 SCC 100 wherein in para Nos.28
& 29 the Hon‟ble 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 Mallik: (2009) 2 SCC 624, 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:(2009) 2 SCC 624, 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."
Referring the same, Learned P.P. drawn the attention
of the Court that the observation of Learned Special Judge that
no contraband item was found under the possession of the
respondent-accused is also contrary to the principle of law laid
down by the Hon‟ble Apex Court because the Learned Special
Judge without considering the other materials on record and the
statements of witnesses so far collected by the IO during
investigation, released the accused on interim bail which was
totally illegal and unwarranted.
Learned P.P. thereafter referred another citation of
the Hon‟ble Supreme Court of India in State of Meghalaya
versus Lalrintluanga Sailo and Another reported in (2024)
SCC OnLine SC 1751 wherein para Nos.10 & 11 Hon‟ble Apex
Court observed as under:
"10. The subject FIR viz., FIR No.
06(02)23 under Section(s) 21 (c)/29 of
the NDPS Act, would reveal that the
quantity of the contraband involved is
1.040 kgs of heroin. The impugned order
granting bail to accused-Smt. X, dated
29.09.2023 would reveal, this time also,
the bail was granted on the ground that
she is suffering from HIV and
conspicuously, without adverting to the
mandate under Section 37(1)(b)(ii), NDPS
Act, even after taking note of the fact that
the rigour of Section 37, NDPS Act, calls
for consideration in view of the
involvement of commercial quantity of the
contraband substance. When the accused
is involved in offences under Section
21(c)/29 of NDPS Act, more than one
occasion and when the quantity of the
contraband substance viz., heroin is 1.040
Kgs, much above the commercial quantity,
then the non-consideration of the
provisions under Section 37, NDPS Act,
has to be taken as a very serious lapse. In
cases of like nature, granting bail solely
on the ground mentioned, relying on the
decision in Bhawani Singh v. State of
Rajasthan: 2022 SCC OnLine SC 1991
would not only go against the spirit of the
said decision but also would give a wrong
message to the society that being a
patient of such a disease is a license to
indulge in such serious offences with
impunity. In the contextual situation it is
to be noted that in Bhawani Singh's case
the offence(s) involved was not one under
the NDPS Act. We have no hesitation to
say that in the above circumstances it can
only be held that the twin conditions
under Section 37 of the NDPS Act, are not
satisfied and on the sole reason that the
accused is a HIV patient, cannot be a
reason to enlarge her on bail. Since the
impugned order was passed without
adhering to the said provision and in view
of the rigour thereunder the accused-Smt.
X is not entitled to be released on
bail, the impugned order invites
interference.
11. Consequently, the impugned order is
set aside. The accused- Smt. X shall
surrender before the trial Court within a
week from today and in case of her failure
to do so, she shall be taken into custody in
accordance with law. Upon such
surrender/production of the accused
before the trial Court, it shall cancel the
bail bond of the accused and discharge the
sureties."
Referring the same, Learned P.P. drawn the attention
of this Court that in the said case, all though, bail was granted
on the ground that the accused was HIV patient but the Hon‟ble
Apex Court set aside the bail granted to the accused on the
ground that Section 37 of NDPS Act does not absolve the
accused from the liability of the offence as charged and here in
the given case, Learned Special Judge without considering the
available materials allowed the bail application of the accused
for which Learned P.P. drawn the attention of the Court for
interference of the order of the Learned Special Judge by setting
aside the orders.
Learned P.P. thereafter referred another citation of
the Hon‟ble Supreme Court of India in Ajwar versus Waseem
and Another reported in (2024) 10 SCC 768 wherein in para
No.27, Hon‟ble Apex Court observed as under:
27. It is equally well settled that bail once
granted, ought not to be cancelled in a
mechanical manner. However, an
unreasoned or perverse order of bail is
always open to interference by the
superior court. If there are serious
allegations against the accused, even if he
has not misused the bail granted to him,
such an order can be cancelled by the
same Court that has granted the bail. Bail
can also be revoked by a superior court if
it transpires that the courts below have
ignored the relevant material available on
record or not looked into the
gravity of the offence or the impact on the
society resulting in such an order. In P v.
State of M.P.: (2022) 15 SCC 211 decided
by a three-Judge Bench of this Court
[authored by one of us (Hima Kohli, J.)]
has spelt out the considerations that must
weigh with the Court for interfering in an
order granting bail to an accused under
Section 439(1) CrPC in the following
words: (SCC p. 224, para 24)
"24. As can be discerned from the
above decisions, for cancelling bail
once granted, the court must
consider whether any supervening
circumstances have arisen or the
conduct of the accused post grant of
bail demonstrates that it is no longer
conducive to a fair trial to permit him
to retain his freedom by enjoying the
concession of bail during trial: Dolat
Ram v. State of Haryana, (1995) 1
SCC 349. To put it differently, in
ordinary circumstances, this Court
would be loathe to interfere with an
order passed by the court below
granting bail but if such an order is
found to be illegal or perverse or
premised on material that is
irrelevant, then such an order is
susceptible to scrutiny and
interference by the appellate court."
Referring the same, Learned P.P. submitted that an
unreasoned or perverse order is always open to interference by
the superior Court if there are serious allegations against the
accused and even if the accused does not misuse the conditions
of bail granted to him still there is scope for setting aside the
order of bail granted to an accused.
Learned P.P. referred another order of this High
Court in State of Tripura Represented by the Ld. Public
Prosecutor versus Mahabul Alam and Others reported in
2023 SCC OnLine Tri 777 wherein in para Nos. 17 to 21 this
High Court observed as under:
"17. From the aforesaid enunciations of
law on the subject, it is abundantly clear,
that the Courts while considering the
application for bail must strictly adhere to
the two conditions embodied in Section 37
of the NDPS Act, and must record its
reason of satisfaction that there are
substantial probable causes for believing
that the accused is not guilty of
committing such offence and that there is
no likelihood of repetition of committing
such offence by the accused while on bail.
It is re-iterated that while considering the
bail application filed by the accused
arrested under the penal provisions of the
NDPS Act, learned Special Judges should
be confined within the limits embodied in
Section 37 of the NDPS Act. Procedural
violations, if any, shall be taken into
consideration during the course of trial,
and not at the stage of consideration of
bail application.
18. I have given due consideration to the
submissions of Mr. Bhattacharjee, learned
counsel appearing for the accused-
respondents and the decisions he relies
upon in order to support his plea that very
cogent and overwhelming circumstances
are necessary for an order seeking
cancellation of the bail as held by the
Supreme Court in State(Delhi
Administration) vs. Sanjay Gandhi, (1978)
2 SCC 411: AIR 1978 SC 961; Bhagirath
Singh Judeja vs. State of Gujarat, (1984)
1 SCC 284: AIR 1984 SC 372; Bhuri Bai vs.
State of Madhya Pradesh, 2022 LiveLaw
(SC) 956.
19. A Full-Bench of the Hon'ble Supreme
Court in Sanjay Gandhi (supra) held that
in order to succeed in an application for
cancellation of a bail the Court should
make an endeavour to test the balance of
probabilities that the accused has abused
his liberty or that there is a reasonable
apprehension that he will interfere with
the course of justice. The bench further
held that:
"24. Section 439(2) of the Code of
Criminal Procedure confers
jurisdiction on the High Court or
Court of Session to direct that any
person who has been released on bail
under Chapter XXXIII be arrested
and committed to custody. The
power to take back in custody an
accused who has been enlarged on
bail has to be exercised with care
and circumspection. But the power,
though of an extraordinary nature, is
meant to be exercised in appropriate
cases when, by a preponderance of
probabilities, it is clear that the
accused is interfering with the course
of justice by tampering with
witnesses. Refusal to exercise that
wholesome power in such cases, few
though they may be, will reduce it to
a dead letter and will suffer the
courts to be silent spectators to the
subversion of the judicial process.
We might as well wind up the courts
and bolt their doors against all than
permit a few to ensure that justice
shall not be done."
20. Similar view has been expressed in
Bhagirath Singh Judeja(supra) and Bhuri
Bai(supra). At this juncture, I must say,
as I said earlier, the Courts should not
forget the limitations under Section 37 of
the NDPS Act in addition to the limitations
prescribed in Cr.P.C.
21. In the context of the case, it is found
that after being enlarged on bail two of
the accused, namely, Mahabul Alam and
Piklu Bhowmik had abused the benefit of
liberty granted by the Court by way of
allowing their applications for bail. The
accused-respondents were found to be
involved in two other cases registered
under different police stations during the
period of bail."
Referring the same, Learned P.P. submitted that the
Learned Special Judge at the time of releasing the accused on
interim bail, totally misdirected and misread the provisions of
Section 37 of the NDPS Act for which the interference of this
Court is required and urged for cancellation of the order of bail
granted to the accused.
Finally, Learned P.P. drawn the attention of this Court
although, by the last order dated 18.12.2024 Learned Special
Judge further extended the period of interim bail of the accused
till 25.01.2025 relying upon the judgment of the Hon‟ble Apex
Court in State (By NCB) Bengalure versus Pallulabid
Ahamad Arimutta and Another reported in (2022) 12 SCC
633 and came to the observation that Section 37 of the NDPS
would not attract in this case but the Hon‟ble Apex Court
according to Learned P.P. in the said case granted bail to the
concerned accused on the ground that no substantial materials
was available with the prosecution at the time of arrest to
connect the accused with the allegation levelled against them
for indulging with drug trafficking and the respondent
themselves recorded statement of the co-accused under Section
67 of the NDPS Act but rejected bail application of another
accused. So, this principle of citation cannot be applied in this
case. So, finally, Learned P.P. urged for cancellation of the bail
granted to the respondent-accused by order dated 06.09.2024.
In course of hearing of argument, Learned counsel
for the respondent-accused totally objected the submission
made by Learned P.P. and submitted that Learned Special Judge
after perusal of the case diary came to an observation that
Section 37 of the NDPS Act would not attract in this case as
nothing was recovered from the possession of the accused. So,
there was no infirmity in the order passed by the Learned
Special Judge and urged for setting aside the application for
cancellation of bail filed by the prosecution.
I have perused the FIR and also the other relevant
prosecution papers and perused the principles of the aforesaid
citations relied upon by the prosecution of the Hon‟ble Apex
Court and also a coordinate bench of this High Court. The
investigation of the case is in progress. Admittedly, in this case,
the prosecution was set into motion on the basis of an FIR laid
by one Om Prakash Swami, Ac, Coy Commander „D‟ Coy 42 Bn.
BSF on 19.08.2024 with the allegation that on 18.08.2024
accused Ibrahim Miah was arrested along with contraband
items. The case was registered as already stated and in course
of investigation, the present respondent-accused was taken into
custody and was produced before the Learned Special Judge
under arrest. I have also perused the statement of witnesses so
far recorded by IO under Section 161 of Cr.P.C. during
investigation up to this stage. From the impugned orders passed
by the Learned Special Judge it appears to me that the Learned
Special Judge at the time of allowing interim bail to the accused
came to the observation that no contraband items was found
under the possession of the respondent-accused and
accordingly, granted interim bail to the accused which was
extended time to time without considering the other materials
on record. It is also on record that in this case apart from said
Ibrahim Miah, another Abdul Hossen are presently lodging in
jail and this present respondent-accused and another have been
released on interim bail. From the principles of law laid down by
the Hon‟ble Apex Court in the afore noted cases, it is clear that
from the mere observation that "nothing has been found from
his possession" was not sufficient at this stage that the
respondent was not guilty of the offences for which he had been
charged. Furthermore, the finding of absence of possession from
the respondent-accused does not absolve him from the level of
scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.
Here in the case at hand from the statement of witness collected
by IO the involvement of the respondent-accused with the
alleged crime cannot be ruled out as the investigation of the
case is still in progress and furthermore, on perusal of the last
order dated 18.12.2024, it appears that the Learned Special
Judge gave a specific finding that the prosecution failed to fulfill
the twin conditions as required under Section 37 of the NDPS
Act. In my considered opinion it appears to be non-application
of proper mind by the Learned Special Judge considering the
gravity of the offence. Another question is that from the order
dated 18.12.2024 passed by Learned Special Judge it appears
that he gave a clear finding that Section 37 of NDPS Act would
not apply against the present respondent-accused then how he
had further extended the period of interim bail till 25.01.2025
appears to be a confusing and unreasoned order because once
the Court comes to an observation that Section 37 of NDPS Act
would not attract, there remains nothing for the prosecution to
proceed further against the present respondent-accused. Thus,
it appears that the Learned Special Judge ignored the relevant
materials available on record and also overlooked the gravity of
the offence at the time of passing the impugned order because
on 06.09.2024 Learned Special Judge allowed the bail to the
respondent-accused which appears to be non-application of
proper mind and mis-interpreting or misreading the provision of
Section 37 of the NDPS Act. The principle of citation as referred
by Learned P. P. for the State in State (By NCB) Bengalure
versus Pallulabid Ahamad Arimutta and Another reported
in (2022) 12 SCC 633 and also the respondent-accused cannot
be applied in this case.
So, considering the facts and circumstances of this
case, it appears that the order dated 06.09.2024 suffers from
infirmity which needs to be interfered with and accordingly the
order dated 06.09.2024 passed by Learned Special Judge, Court
No.4, West Tripura, Agartala stands cancelled and the
subsequent orders for extending period of interim bail till
25.01.2025 of the respondent-accused is also accordingly
stands cancelled. The respondent-accused is to surrender before
the Learned Court below within a period of seven days from
today failing which he shall be taken into custody as per law by
the investigating authority. His bail bond along with surety bond
also stands cancelled.
Thus, the application for cancellation of bail is
accordingly stands allowed.
Pending application/s, if any, also stands disposed of.
Send back the record of the Learned Special Judge,
Court No.4, Agartala, West Tripura District along with a copy of
this order. Also send back the CD through Learned P.P. along
with a copy of this order.
JUDGE
MOUMITA MOUMITA DATTA
DATTA 17:04:08 +05'30'
Purnita
