Tripura High Court
The State Of Tripura vs Uttam Datta on 31 January, 2025
1
HIGH COURT OF TRIPURA
AGARTALA
B.A. No.92 of 2024
The State of Tripura
Represented by the Secretary to the Government of Tripura,
Home Department, Agartala.
-----Applicant(s)
Versus
Uttam Datta,
S/O Late Swapan Datta
Resident of Shantilla, Kamalnagar,
P.O. & P.S.- Sonamura, District- Sepahijala Tripura.
-----Respondent (s)
For Applicant(s) : Mr. Raju Datta, P.P.
For Respondent(s) : None.
HON'BLE MR. JUSTICE BISWAJIT PALIT
Order
31/01/2025
Learned P.P., Mr. Raju Datta is present for the
applicant. Today also no step was taken by the respondent-
accused or none appeared on behalf of the said respondent-
accused.
The applicant has filed this application under Section
439(2) read with Section 482 of Cr.P.C. for cancellation of the
bail granted to the accused by the Learned Special Judge,
Sonamura, Sepahijala District in connection with Case No.Spl.
(NDPS) 85 of 2023 dated 29.01.2024 under Section
20(a)(i)/20(b)(ii)(c)/25/29 of the NDPS Act.
Taking part in the hearing, Learned P.P. drawn the
attention of the Court that by order dated 29.01.2024 the
respondent-accused was granted bail by Learned Special Judge,
Sonamura, Sepahijala District without assigning any valid
reason. He further drawn the attention of the Court that in this
case by order dated 16.11.2023, Learned Special Judge took
cognizance of offence under Section 20(a)(i)/20(b)(ii)(c)/25/29
of the NDPS Act and during the stage of trial, after recording
evidence of only 01 no. of witness, Learned Special Judge
allowed the bail to the accused by the said order. It was further
submitted that in this case, I.O. cited 14 nos. of witnesses but
only after recording evidence of 01 no. of witness Learned
Special Judge granted bail which was totally not warranted by
law and beyond the spirit of the provision of Section 37 of the
NDPS Act and also contrary to the principles of the law laid
down by the Hon'ble Apex Court in series of judgments. Learned
P.P. further referred the initial FIR dated 07.07.2023 on the
basis of which this case was registered.
Finally, Learned P.P. submitted that since the
Learned Special Judge, without assigning any valid reason
allowed bail to the respondent-accused, so, the same needs to
be interfered with by this Court by setting aside the said order
dated 29.01.2024 and in support of his contention Learned P.P.
relied upon one citation of the Hon'ble Supreme Court of India
in Narcotics Control Bureau vs. Mohit Aggarwal dated
19.07.2022 reported in (2022) 18 SCC 374 wherein in para
No.19 Hon'ble the Apex Court has been pleased to observe as
under:
"19. In our opinion the narrow parameters of
bail available under Section 37 of the Act, have
not been satisfied in the facts of the instant
case. At this stage, it is not safe to conclude
that the respondent has successfully
demonstrated that there are reasonable
grounds to believe that he is not guilty of the
offence alleged against him, for him to have
been admitted to bail. The length of the period
of his custody or the fact that the charge-sheet
has been filed and the trial has commenced are
by themselves not considerations that can be
treated as persuasive grounds for granting
relief to the respondent under Section 37 of the
NDPS Act."
Referring the same, Learned P.P. submitted that
considering the facts and circumstances of the present case, the
order dated 29.01.2024 needs to be cancelled by this Court and
the accused be taken into custody.
In this case, as per order of the Court notice was
served upon the respondent-accused by Dasti service and it
appears that notice was served upon the respondent-accused on
16.01.2025, but inspite of that neither the respondent-accused
appeared nor he engaged any counsel to conduct his defence. In
this case, the prosecution was set into motion on the basis of an
FIR laid by Inspector Subhankar Debbarma on 07.07.2023 to
O/C Sonamura P.S. alleging interalia that on 07.07.2023 on the
basis of secret information, he along with other staff conducted
raid to the residence of the respondent-accused, Uttam Datta at
Anandanagar, Kamalnagar, Ward No.05, Shanti Tilla, P.S.-
Sonamura, Sepahijala and in course of search they recovered
03(three) nos. deep blue colour plastic drum with airtight lid
containing suspected to be dry ganja (cannabis) after digging
out the earth which were marked as "A", "B" and "C" and after
measurement, it was found that 129 kgs of dry ganja was
seized and accordingly, the case was registered. It was also
mentioned in the FIR that in course of search, the accused
found to be absconded from his house. However, later on, on
25.09.2023 he was produced under arrest before the Court and
he was in custody for a considerable period of time and after
that by order dated 29.01.2024 the respondent-accused was
granted bail by the Learned Special Judge, Sonamura,
Sepahijala. For the sake of convenience, the relevant portion of
the order dated 29.01.2024 delivered by Learned Special Judge,
Sonamura, Sepahijala:
29.01.2024:
"Custody accused persons namely Uttam Datta
is produced from J/C before the court.
One bail petition is filed for the accused
persons by their Ld. Advocate and prayed to
release them on bail on any condition.
Ld. Special PP Mr. M. Sen is present.
Today the case was fixed for order.
Heard both sides on the bail petition.
Ld. Special PP Mr. M. Sen raised strong
objection to the bail prayer and cited one
judgment of our own Hon'ble the High
Court(The State of Tripura Vs.. Mahabul Alam)
in BA 12 of 2023 citing that due to the rigors of
Section 37 of NDPS Act the accused persons
should not be released on bail.
I have perused the record and found that
though the contrabands involved in this case
falls under the purview of commercial quantity,
after filing of charge sheet rigors u/s 37 of
NDPS Act shall not be tenable during trial.
Hence, the bail prayer is accepted.
Accused persons are allowed to go on bail on
furnishing a bail bond of Rs. 100000/- with one
surety of like amount on condition that:
i) the accused persons shall not leave the
State of Tripura without the prior permission of
this court;
ii) the accused persons will remain present
before the court in all the vital stage of the
trial: and
iii) the accused persons shall not to try to
influence the witnesses in any manner. I.d. to
J/C till 11.02.2024."
From the said order, it appears that in course of
hearing, Learned P.P. of the District Court opposed the bail
application and referred one judgment of this High Court in
connection with B.A. No.12/2023 (State of Tripura vs. Mahabul
Alam & Ors.) But the Learned Special Judge observed that
through the contraband involved in the case false under the
purview of commercial quantity but after filing of charge-sheet,
rigors under Section 37 NDPS Act would not attract and hence,
he allowed the bail application of the respondent-accused. This
observation is totally irrelevant.
I have also perused another bail application order
dated 20.06.2024 passed by a Coordinate Bench of this High
Court in connection with B.A. No.30 of 2024 (The State of
Tripura vs. Mijanur Rahaman wherein in para Nos.11 to 13 this
High Court observed as under:
"11. On careful consideration of the above
enunciation of law, I can easily hold that mere
filing of charge-sheet is not a ground at all or
has no persuasive value to grant bail to an
accused of allegedly committing offence under
the penal provisions of NDPS Act. The materials
available on records do not suggest anything
that there are reasonable grounds to believe
that the accused is not guilty of committing the
alleged offence under Sections
20(b)(ii)(c)/25/29 of the NDPS Act.
12. I have also perused the judgment cited by
Mr. Ali, learned counsel for the respondent-
accused. In the case of Mohd Muslim @ Hussain
vs. State (NCT of Delhi) [Criminal Appeal
No.(s) of 2023 arising out of Special Leave
Petition (Crl.) No(s) 915 of 2023], the Hon'ble
Supreme Court has released the accused on the
ground that the trial was delayed for 7 years.
This is not the case here.
13. In the light of the above discussion, the
instant application for cancellation of bail of
the accused stands allowed.
The Order dated 30.01.2024 granting bail to
the respondent-accused by the learned Special
Judge, Sepahijala District, Sonamura in Special
(NDPS) 97 of 2023, stands set-aside and
quashed.
The respondent-accused, namely, Mijanur
Rahaman, is directed to surrender before the
learned Special Judge, Sepahijala District,
Sonamura by 11.00 a.m. on 21.06.2024, failing
which learned Special Judge, Sepahijala
District, Sonamura shall pass necessary
direction to ensure arrest of the respondent-
accused.
Consequently, the bail bond furnished by the
surety for and on behalf of the respondent-
accused also stands cancelled.
Registry is directed to furnish a copy of this
order to the learned Special Judge, Sepahijala
District, Sonamura."
Here in the given case as already stated prosecution
till today has adduced only 04 nos. of witnesses before the
Learned Trial Court whose evidence has already been recorded.
I have also perused the evidence on record and the Case Diary
of this case. Also I have perused the evidence on record of the
said witnesses adduced by the prosecution and the order dated
29.01.2024 passed by Learned Special Judge, Sonamura,
Sepahijala. Further, I have also perused the judgment of the
Hon'ble Supreme Court of India referred by the prosecution as
discussed above.
After going through the evidence on record and also
after perusal of the case record of the Learned Trial Court
below, it appears that prior to 29.01.2024 only one witness was
produced by the prosecution before the Learned Special Judge,
who as the informant of the case and from his evidence, it
appears that there was sufficient incriminating evidence against
the respondent-accused showing his involvement with the
alleged offence. It is not understood to this Court as to how the
Learned Special Judge without taking evidence of other material
witnesses came to the observation that the rigors of Section 37
would not attract in this case. For the sake of convenience, I
would like to refer herein below Section 37 of the NDPS Act
which reads as follows:
Section 37 of the NDPS Act:
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 1[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 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.].
On bare perusal of the said provision, it is crystal
clear that to consider bail of an accused in a case under NDPS
Act, the Court must be satisfied that there is reasonable ground
to believe that the accused is not guilty of committing the
alleged offence and he is not likely to commit any offence while
on bail. From the said provision it appears that the Learned
Special Judge failed to appreciate the provision of Section 37 of
NDPS Act in granting bail to the respondent-accused.
Furthermore, the mere fact of filing charge-sheet and
the period of his detention in custody, cannot be a ground for
granting relief to an accused under Section 37 of NDPS Act
specifically in a case where there is evidence of possession of
Narcotic Drugs of "commercial quantity".
Thus, after perusal of the order passed by Learned
Special Judge and in view of the principle of law laid down by
the Hon'ble Apex Court in the afore noted case and also this
High Court, it appears that the Learned Special Judge has
committed serious error in granting bail to the respondent-
accused in this case where there is allegation of possessing
contraband items of commercial quantity.
In view of the above the instant application for
cancellation of bail filed by the prosecution stands allowed. The
order dated 29.01.2024 delivered by Learned Special Judge,
Sonamura, Sepahijala granting bail to the respondent-accused
in connection with case No.Spcl. (NDPS) 85 of 2023 stands set
aside and cancelled. The respondent-accused although remained
absent, is to surrender before the Learned Special Judge,
Sonamura, Sepahijala by 10.02.2025 on or before 11 am failing
which the Learned Special Judge shall pass appropriate order to
ensure arrest of accused and to commit the accused into
custody. The bail bond filed by the accused and his surety
accordingly, stands cancelled.
A copy of this order along with the case record be
transmitted to Learned Special Judge, Sonamura, Sepahijala
immediately and also a copy of this order be communicated to
I.O. through Learned P.P.
With this observation, this bail application stands
disposed of.
JUDGE
MOUMITA MOUMITA DATTA
DATTA
Purnita
15:24:27 +05'30'
