Tripura High Court
The State Of Tripura vs Kabir Hossen on 17 January, 2025
HIGH COURT OF TRIPURA
AGARTALA
B.A.No.86 of 2024
The State of Tripura
represented by the Secretary
to the Government of Tripura,
Home Department, Agartala
---- Applicant (s)
Versus
Kabir Hossen,
son of Bacchu Miah,
resident of Madhya 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
Heard Mr. Raju Datta, Learned P.P. appearing on behalf of the
petitioner-applicant. Also heard Mr. P. Sen Choudhury, Learned counsel
appearing on behalf of the accused-respondent.
[2] This is an application under Section 483(3) read with Section 528
of Bharatiya Nagrik Suraksha Sanhita, 2023 for cancellation of the order dated
18.10.2024 passed by the Learned Special Judge, Court No.4, West Tripura
District, Agartala which was later on extended by different orders till
25.01.2025 in connection with Amtali P.S. Case No.2024AMT104 under Section
21(b)/22(C)/23/25/27/27(A)/29 of NDPS Act.
[3] Learned P.P. appearing on behalf of the petitioner-applicant at the
time of hearing first of all drawn the attention of this Court referring the FIR
laid by Sri Om Prakash Swami, Ac, Coy Commander „D‟ Coy 42 Bn. BSF to O/c
Amtali P.S. and submitted that on the basis of that FIR the case was registered
and this respondent-accused was produced before the Learned Special Judge,
Court No.4, West Tripura, Agartala on 17.10.2024 and on that day, in-charge
Learned Special Judge on perusal of the case diary rejected the bail application
of the respondent-accused and remanded him to jail custody till 18.10.2024
with a direction to the IO to produce up to date case diary on 18.10.2024 but
surprisingly on 18.10.2024, the Learned in-charge Special Judge released the
respondent-accused on interim bail without application of proper mind.
[4] Learned P.P. further submitted that thereafter the case was
posted on 05.11.2024 for hearing and on that day again his period of interim
bail was further extended till 18.12.2024 and on 18.12.2024, Learned Special
Judge, Court No.4 by a detailed order came to the observation that Section 37
of NDPS Act would not apply in this case and further extended the period of
interim bail of the respondent-accused till 25.01.2025. So, Learned P.P.
submits that the order passed by the Learned Special Judge suffers from
infirmities which needs to be interfered with and further more referring the
case diary, Learned P.P. submitted that in this case, there was allegation of
possessing huge quantum of contraband items of narcotic drugs and in course
of investigation, the name of the respondent-accused revealed to be involved
with the alleged crime and there are sufficient materials showing implication of
the said accused with the offence as alleged but Learned Special Judge without
application of proper mind came to the observation that Section 37 of NDPS
Act would not attract in respect of this present accused and released him with
further interim bail till 25.01.2025 which needs to be interfered with and
referred few citations in support of his contention.
[5] On the other hand, Learned counsel appearing on behalf of the
respondent-accused first of all drawn the attention of this Court that there was
no infirmity in the initial order passed by Learned in-charge Special Judge
because the Learned in-charge Special Judge after perusal of the case diary
came to the observation that nothing was recovered from the possession of the
respondent-accused and for that, his period of interim bail was extended from
time to time and by the last order Learned Special Judge, Court No.4 came to
the observation that Section 37 of the NDPS Act would not attract in this case
and extended his period of further interim bail till 25.01.2025 and there was no
infirmity or illegality in the order of the Learned Special Judge and finally,
Learned counsel for the respondent-accused submitted that there is no merit in
the application for cancellation of bail filed by the state-applicant and urged for
dismissal of this application allowing the respondent-accused to remain on bail
as ordered.
Considered.
[6] 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 packet 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 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 Kabir
Hossen was produced under arrest before the Learned Special Judge on
17.10.2024 and he was remanded back to judicial custody till 18.10.2024 and
on that day, on perusal of case diary, Learned in-charge Special Judge, Court
No.4, West Tripura, Agartala allowed the respondent-accused to go on interim
bail to till 05.11.2024 and thereafter, the said order of interim bail was
extended till 25.01.2025 as indicated earlier.
[7] 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 Procedure, 1973 (2 of 1974), or any other
law for the time being in force on granting of bail]."
[8] 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 Ld. Judge, nothing was
found 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 Ld. 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 (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."
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 from 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 Rajasthan3 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 judges 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) of the Cr.P.C in the following words:
"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 all though,
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 (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 leveled 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.
[9] 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.
[10] I have perused the FIR and also all the 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 17.10.2024 Learned in-charge Special Judge on perusal of the case diary
rejected the bail application of the respondent-accused but on the following
day again he 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 counsel for the respondent-accused in State (By NCB) Bengalure
versus Pallulabid Ahamad Arimutta and Another reported in (2022) 12
SCC 633 cannot be applied in this case.
[11] So, considering the facts and circumstances of this case, it
appears that the order dated 18.10.2024 suffers from infirmity which needs to
be interfered with and accordingly the order dated 18.10.2024 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 stand 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
SABYASACHI Digitally signed by SABYASACHI
BHATTACHARJEE
BHATTACHARJEE Date: 2025.01.27 13:14:25 +05'30'
Sabyasachi B
