Tripura High Court
Accused vs The State Of Tripura on 23 June, 2025
HIGH COURT OF TRIPURA
AGARTALA
A.B. No.45 of 2025
Debabrata Dey @ Debu, (39),
S/O: Late Sushil Ch. Dey,
Resident of Bordowali near BOC,
Beside Yubak Sangha Club, P.S.- A.D. Nagar,
Pin-799003, District-West Tripura, Tripura.
.... Accused Petitioner
Versus
The State of Tripura
.......Respondent
For Applicant(s) : Mr. Gautam Choudhury, Adv.
Ms. Ankita Pal, Adv.
Mr. Biswajit Saikia, Adv.
Mr. Arindam Baruah, Adv.
For Respondent(s) : Mr. Raju Datta, P.P.
Mr. Rajib Saha, Addl. P.P.
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Order
23/06/2025
This pre-arrest bail application under Section 438 of Code
of Criminal Procedure, 1973 is filed for releasing the accused-
petitioner Sri Debabrata Dey @ Debu on bail in connection with
Mungiakami P.S. Case No.015/2021 under Sections 21(c)/25/29 of
the Narcotic Drugs and Psychotropic Substances Act, 1985
corresponding to Special (NDPS) Case No.13/2024.
Heard Learned Counsel Mr. Gautam Choudhury assisted
by Learned Counsel Ms. Ankita Pal, Learned Counsel Mr. Biswajit
Saikia and Learned Counsel Mr. Arindam Baruah appearing on behalf
of the accused-petitioner and also heard Learned P.P., Mr. Raju Datta
appearing on behalf of the State-respondent.
Taking part in the hearing, Learned Counsel for the
accused-petitioner Mr. G. Choudhury submitted that the present
accused-petitioner has been falsely implicated in this case on the
basis of statement of co-accused and the accused-petitioner is a
reputed person of the locality and in this case warrant of arrest and
thereafter proclamation was issued against him from the Court and
challenging that order the accused-petitioner filed Criminal Petition
No.18 of 2023 before this Court which was also dismissed by order
dated 14.09.2023 and challenging that order the accused-petitioner
thereafter preferred an SLP before the Hon'ble Supreme Court of
India and the Hon'ble Supreme Court of India in SLP (Crl.)
No.15125/2023 by order dated 28.11.2023 was pleased to dismiss
the order of proclamation and as such he has preferred this bail
application to this Court and submitted that an interim protection
may be granted so that he may face the trial of the case and urged
for granting him bail till disposal of the case, by allowing this
petition.
Learned Counsel in support of this contention, confined
his arguments in 2 (two) phases. In the first phase of argument, he
submitted that in the facts and given circumstance of the case there
is scope for filing pre-arrest bail application and in support of his
contention he relied upon few citations.
Learned Counsel referred one citation of Hon'ble the
Supreme Court of India in Ravindra Saxena Vs. State of
Rajasthan reported in (2010) 1 SCC 684 wherein in Para Nos.7 to
11 Hon'ble the Apex Court observed as under:-
"7. We are of the considered opinion that the approach
adopted by the High Court is wholly erroneous. The
application for anticipatory bail has been rejected
without considering the case of the appellant solely on
the ground that the challan has now been presented.
8. We may notice here that the provision with regard
to the grant of anticipatory bail was introduced on the
recommendations of the Law Commission of India in
its Forty-first Report dated 24-9-1969. The
recommendations were considered by this Court in a
Constitution Bench decision in Gurbaksh Singh Sibbia
v. State of Punjab:[(1980) 2 SCC 565]. Upon
consideration of the entire issue this Court laid down
certain salutary principles to be followed in exercise of
the power under Section 438 CrPC by the Sessions
Court and the High Court. It is clearly held that the
anticipatory bail can be granted at any time so long as
the applicant has not been arrested. When the
application is made to the High Court or the Court of
Sessions it must apply its own mind on the question
and decide when the case is made out for granting
such relief.
9. In our opinion, the High Court ought not to have left
the matter to the Magistrate only on the ground that
the challan has now been presented. There is also no
reason to deny anticipatory bail merely because the
allegation in this case pertains to cheating or forgery
of a valuable security. The merits of these issues shall
have to be assessed at the time of the trial of the
accused persons and denial of anticipatory bail only on
the ground that the challan has been presented would
not satisfy the requirements of Sections 437 and 438
CrPC.
10. In our opinion, the High Court committed a serious
error of law in not applying its mind to the facts and
circumstances of this case. The High Court is required
to exercise its discretion upon examination of the facts
and circumstances and to grant anticipatory bail "if it
thinks fit". The aforesaid expression has been
explained by this Court in Gurbaksh Singh
case:[(1980) 2 SCC 565] as follows: (SCC p.583, para
18)
"18. ... The expression „if it thinks fit‟, which
occurs in Section 438(1) in relation to the power
of the High Court or the Court of Session, is
conspicuously absent in Section 437(1). We see
no valid reason for rewriting Section 438 with a
view, not to expanding the scope and ambit of the
discretion conferred on the High Court and the
Court of Session but, for the purpose of limiting
it. Accordingly, we are unable to endorse the view
of the High Court that anticipatory bail cannot be
granted in respect of offences like criminal breach
of trust for the mere reason that the punishment
provided therefor is imprisonment for life.
Circumstances may broadly justify the grant of
bail in such cases too, though of course, the court
is free to refuse anticipatory bail in any case if
there is material before it justifying such refusal."
11. The salutary provision contained in Section 438
CrPC was introduced to enable the court to prevent the
deprivation of personal liberty. It cannot be permitted
to be jettisoned on technicalities such as "the challan
having been presented, anticipatory bail cannot be
granted". We may notice here some more observations
made by this Court in Gurbaksh Singh:[1980 SCC (Cri)
465] (SCC p. 585, para 26)
"26. We find a great deal of substance in Mr.
Tarkunde‟s submission that since denial of bail
amounts to deprivation of personal liberty, the
court should lean against the imposition of
unnecessary restrictions on the scope of Section
438, especially when no such restrictions have
been imposed by the legislature in the terms of
that section. Section 438 is a procedural provision
which is concerned with the personal liberty of
the individual, who is entitled to the benefit of the
presumption of innocence since he is not, on the
date of his application for anticipatory bail,
convicted of the offence in respect of which he
seeks bail. An overgenerous infusion of
constraints and conditions which are not to be
found in Section 438 can make its provisions
constitutionally vulnerable since the right to
personal freedom cannot be made to depend on
compliance with unreasonable restriction. The
beneficent provisions constitutionally vulnerable
since the right to personal freedom cannot be
made to depend on compliance with unreasonable
restrictions. The beneficent provision contained in
Section 438 must be saved, not jettisoned. No
doubt can linger after the decision in Maneka
Gandhi :[Maneka Gandhi v. Union of India, (1978)
1 SCC 248], that in order to meet the challenge of
Article 21 of the Constitution, the procedure
established by law for depriving a person of his
liberty must be fair, just and reasonable. Section
438, in the form in which it is conceived by the
legislature, is open to no exception on the ground
that it prescribes a procedure which is unjust or
unfair. We ought, at all costs, to avoid throwing it
open to a constitutional challenge by reading
words in it which are not to be found therein.""
Referring the same he drawn the attention of this Court
that in view of the principle of law laid down by the Hon'ble Supreme
Court, there is scope for applying pre-arrest bail at this stage.
He also relied upon another citation of the Hon'ble Apex
Court in Siddharam Satlingappa Mhetre Vs. State of
Maharashtra and Others reported in (2011) 11 SCC 694 wherein
in Para Nos.10, 14, 41, 94, 98, 101, 112 and 113 Hon'ble the Apex
Court further observed as under :-
"10. The Law Commission of India, in its 41st Report
dated 24-9-1969 pointed out the necessity of
introducing a provision in the Code of Criminal
Procedure enabling the High Court and the Court of
Session to grant "anticipatory bail". It observed in
Para 39.9 of its Report (Vol.V) and the same is set out
as under:
"39.9. Anticipatory bail.- The suggestion for
directing the release of a person on bail prior
to his arrest (commonly known as „anticipatory
bail‟) was carefully considered by us. Though
there is a conflict of judicial opinion about the
power of a court to grant anticipatory bail, the
majority view is that there is no such power
under the existing provisions of the Code. The
necessity for granting anticipatory bail arises
mainly because sometimes influential persons
try to implicate their rivals in false cause for
the purpose of disgracing them or for other
purposes by getting them detained in jail for
some days. In recent times, with the
accentuation of political rivalry, this tendency
is showing signs of steady increase. Apart from
false cases, where there are reasonable
grounds for holding that a person accused of
an offence is not likely to abscond, or
otherwise misuse his liberty while on bail,
there seems no justification to require him first
to submit to custody, remain in prison for some
days and then apply for bail."
14. It is clear from the Statement of Objects and
Reasons that the purpose of incorporating Section 438
in CrPC was to recognize the importance of personal
liberty and freedom in a free and democratic country.
When we carefully analyse this section, the wisdom of
the legislature becomes quite evident and clear that
the legislature was keen to ensure respect for the
personal liberty and also pressed in service the age-old
principle that an individual is presumed to be innocent
till he is found guilty by the court.
41. It can be found that "liberty" generally means the
prevention of restraints and providing such
opportunities, the denial of which would result in
frustration and ultimately disorder. Restraints on
man‟s liberty are laid down by power used through
absolute discretion, which when used in this manner
brings an end to "liberty" and freedom is lost. At the
same time "liberty" without restraints would mean
liberty won by one and lost by another. So "liberty"
means doing of anything one desires but subject to the
desire of others.
94. The proper course of action ought to be that after
evaluating the averments and accusation available on
the record if the court is inclined to grant anticipatory
bail then an interim bail be granted and notice be
issued to the Public Prosecutor. After hearing the
Public Prosecutor the court may either reject the bail
application or confirm the initial order of granting bail.
The court would certainly be entitled to impose
conditions for the grant of bail. The Public Prosecutor
or the complainant would be at liberty to move the
same court for cancellation or modifying the conditions
of bail any time if liberty granted by the court is
misused. The bail granted by the court should
ordinarily be continued till the trial of the case.
98. The court which grants the bail has the right to
cancel the bail according to the provisions of the
General Clauses Act but ordinarily after hearing the
Public Prosecutor when the bail order is confirmed
then the benefit of the grant of the bail should
continue till the end of the trial of that case. The
judgment in Salauddin Abdulsamad Shaikh:(1996) 1
SCC 667 is contrary to the legislative intent and the
spirit of the very provisions of the anticipatory bail
itself and has resulted in an artificial and unreasonable
restriction on the scope of enactment contrary to the
legislative intention.
101.The court does not use the expression
"anticipatory bail" but it provides for issuance of
direction for the release on bail by the High Court or
the Court of Sessions in the event of arrest. According
to the aforesaid judgment of Salauddin Case : (1996) 1
SCC 667, the accused has to surrender before the trial
court and only thereafter he/she can make prayer for
grant of bail by the trial court. The trial court would
release the accused only after he has surrendered.
112. The following factors and parameters can be
taken into consideration while dealing with the
anticipatory bail:
(i) The nature and gravity of the accusation and
the exact role of the accused must be properly
comprehended before arrest is made;
(ii) The antecedents of the applicant including
the fact as to whether the accused has
previously undergone imprisonment on
conviction by a court in respect of any
cognizable offence;
(iii) The possibility of the applicant to flee from
justice;
(iv) The possibility of the accused‟s likelihood to
repeat similar or other offences;
(v) Where the accusations have been made only
with the object of injuring or humiliating the
applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people;
(vii) The courts must evaluate the entire
available material against the accused very
carefully. The court must also clearly
comprehend the exact role of the accused in the
case. The cases in which the accused is
implicated with the help of Sections 34 and 149
of the Penal Code, 1860 the court should
consider with even greater care and caution
because overimplication in the cases is a matter
of common knowledge and concern;
(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors, namely, no prejudice
should be caused to the free, fair and full
investigation and there should be prevention of
harassment, humiliation and unjustified
detention of the accused;
(ix) The court to consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in
the matter of grant of bail and in the event of
there being some doubt as to the genuineness of
the prosecution, in the normal course of events,
the accused is entitled to an order of bail.
113. Arrest should be the last option and it should be
restricted to those exceptional cases where arresting
the accused is imperative in the facts and
circumstances of that case. The court must carefully
examine the entire available record and particularly
the allegations which have been directly attributed to
the accused and these allegations are corroborated by
other material and circumstances on record."
Referring the same he further submitted that in view of
the aforesaid observation of the Hon'ble Apex Court, there is scope
for granting pre-arrest bail to the accused in the given facts and
circumstances of the case.
He further referred another citation of the Hon'ble
Supreme Court of India in Dataram Singh Vs. State of Uttar
Pradesh and Another reported in (2018) 3 SCC 22 wherein in
Para Nos.3 and 4 of Hon'ble the Apex Court observed as under :-
"3. While so introspecting, among the factors that
need to be considered is whether the accused was
arrested during investigations when that person
perhaps has the best opportunity to tamper with the
evidence or influence witnesses. If the investigating
officer does not find it necessary to arrest an accused
person during investigations, a strong case should be
made out for placing that person in judicial custody
after a charge-sheet is filed. Similarly, it is important
to ascertain whether the accused was participating in
the investigations to the satisfaction of the
investigating officer and was not absconding or not
appearing when required by the investigating officer.
Surely, if an accused is not hiding from the
investigating officer or is hiding due to some genuine
and expressed fear of being victimised, it would be a
factor that a judge would need to consider in an
appropriate case. It is also necessary for the judge to
consider whether the accused is a first-time offender
or has been accused of other offences and if so, the
nature of such offences and his or her general conduct.
The poverty or the deemed indigent status of an
accused is also an extremely important factor and
even Parliament has taken notice of it by incorporating
an Explanation to Section 436 of the Code of Criminal
Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by
inserting Section 436-A in the Code of Criminal
Procedure, 1973.
4. To put it shortly, a humane attitude is required to be
adopted by a judge, while dealing with an application
for remanding a suspect or an accused person to police
custody or judicial custody. There are several reasons
for this including maintaining the dignity of an accused
person, howsoever poor that person might be, the
requirements of Article 21 of the Constitution and the
fact that there is enormous overcrowding in prisons,
leading to social and other problems as noticed by this
Court in Inhuman Conditions in 1382 Prisons, In
re:(2017) 10 SCC 658."
Again Learned Counsel referred another citation of the
Hon'ble Supreme Court of India in Sekaran Vs. The State of Tamil
Nadu reported in (2024) 2 SCC 176 wherein in Para No.30, Hon'ble
the Apex Court observed as under:-
"30. Although not brought to our notice in course of
arguments, it is revealed from the oral testimony of
PW-11 that the appellant could be apprehended 3
(three) years after the incident from Puliyur road
junction in 91 km. away from Ambalakali) in Kerala
after vigorous search. However, abscondence by a
person against whom an FIR has been lodged and who
is under expectation of being apprehended is not very
unnatural. Mere absconding by the appellant after
alleged commission of crime and remaining
untraceable for such a long time itself cannot establish
his guilt or his guilty conscience. Abscondence, in
certain cases, could constitute a relevant piece of
evidence, but its evidentiary value depends upon the
surrounding circumstances. This sole circumstance,
therefore, does not enure to the benefit of the
prosecution."
Citing all the aforesaid references/citations, Learned
Counsel drawn the attention of the Court that considering the facts
and circumstance of the case and the materials on record and also
the fact that in this case charge-sheet is submitted, the prayer of the
petitioner accused may be allowed by granting him pre-arrest bail.
In the second phase of argument, Learned Counsel
submitted that during investigation the I.O. could not collect any
materials showing direct implication of the accused with the alleged
crime. Only on the basis of statement of co-accused and telephonic
conversation made by the accused-petitioner, he has been falsely
implicated in this case and there is/are no materials in the charge-
sheet for his custodial detention. Furthermore, during investigation
the I/O could not collect any sort of oral/documentary evidence on
record to show that the accused is directly involved in this case. So,
Learned Counsel urged for releasing him on bail in any condition to
enable him to face trial of the case.
In support of his contention, Learned Counsel again
submitted that in the case at hand there is/are no materials on
record to justify detention of the accused in custody and furthermore
prosecution in this case has failed to fulfill the twin conditions as
required under Section 37 of NDPS Act and moreso the present
accused-petitioner is not FIR named and no contraband item is/was
recovered from his possession for his involvement with the offences
as alleged and as such, there is no bar to release the accused on bail
in any condition.
In this regard, furthermore Learned Counsel relied upon
another Judgment of High Court of Delhi in Vinay Dua Vs. State
Govt. of NCT of Delhi reported in 2025 SCC OnLine Del 4534
wherein Para No.19, the Hon'ble High Court of Delhi observed as
under:-
"19. It is pertinent to note that the allegations against
the applicants is essentially based on disclosure
statement of the co-accused persons. As held by the
Hon‟ble Apex Court in Tofan Singh v. State of Tamil
Nadu: (2021) 4 SCC 1, disclosure statements made
under Section 67 of the NDPS Act are inadmissible as
evidence unless corroborated by independent material.
The relevant paragraphs of the said judgment are set
out below:-
"155. Thus, to arrive at the conclusion that a
confessional statement made before an officer
designated under Section 42 or Section 53 can
be the basis to convict a person under the NDPS
Act, without any non obstante clause doing
away with Section 25 of the Evidence Act, and
without any safeguards, would be a direct
infringement of the constitutional guarantees
contained in Articles 14, 20(3) and 21 of the
Constitution of India.
156. The judgment in Kanhaiyalal then goes on
to follow Raj Kumar Karwal in paras 44 and 45.
For the reasons stated by us hereinabove, both
these judgments do not state the law correctly,
and are thus overrules by us. Other judgments
that expressly refer to and rely upon these
judgments, or upon the principles laid down by
these judgments, also stand overrules for the
reasons given by us.
157. On the other hand, for the reasons given by
us in this judgment, the judgments or Noor Aga
and Nirmal Singh Pehlwan v. Inspector, Customs
are correct in law.
158. We answer the reference by stating:
158.1. That the officers who are invested with
powers under Section 53 of the NDPS Act are
"police officers" within the meaning of Section
25 of the Evidence Act, as a result of which any
confessional statement made to them would be
barred under the provisions of Section 25 of the
Evidence Act, and cannot be taken into account
in order to convict an accused under the NDPS
Act.
158.2. That a statement recorded under Section
67 of the NDPS Act cannot be used as a
confessional statement in the trial of an offence
under the NDPS Act.""
(emphasis supplied)
Referring the same Learned Counsel submitted that on
the basis of statement of co-accused, there is no scope to presume
the accused-petitioner to be involved with the alleged case.
Learned Counsel again relied upon another Judgment of
the Hon'ble the High Court of Delhi in connection with Bail
Application No.3023/2024 in Abdul Rab Vs. Narcotics Control
Bureau reported in 2025 SCC OnLine Del 293 wherein in Para
No.23, the Hon'ble High Court of Delhi observed as under:-
"23. At this stage, there is no other evidence to show
that the applicant is involved in any manner with the
co-accused persons. Admittedly no recovery has been
affected from the applicant and in such circumstances
merely because the applicant was allegedly in tough
with the co-accused persons, the bar of Section 37 of
the NDPS Act is not attracted. The Courts are not
expected to accept every allegation made by the
prosecution as a gospel truth. Mere contact with other
co-accused person who was found in possession of
contraband cannot be treated to be corroborative
material in absence of substantive material found
against the accused."
Finally, Learned Counsel urged for releasing the accused
on bail in any condition.
On the other hand, Learned P.P. appearing on behalf of
the State-respondent strongly opposed the bail application and
submitted that in this case from the act and conduct of the accused
petitioner it appears that he never surrendered before the Court in
spite of issuing of warrant of arrest. The Learned Court below initially
issued warrant of arrest against him but that could not be executed.
After that, proclamation was issued against him and challenging that
order of proclamation, the accused-petitioner approached to this
High Court but that petition was rejected. Thereafter, the present
accused-petitioner again approached to Hon'ble Supreme Court of
India and although Hon'ble the Supreme Court made infructuous the
order of proclamation but did not consider his application for granting
him bail and ultimately dismissed his SLP and furthermore, Learned
P.P. submitted that considering the materials on record and the
conduct of the accused at this stage there is no scope to grant him
bail.
In support of his contention, Learned P.P. relied upon one
citation of the Hon'ble Supreme Court of India in Srikant Upadhyay
and Others Vs. State of Bihar and Another reported in 2024
SCC OnLine SC 282 wherein Para Nos.24 and 25, Hon'ble the Apex
Court observed as under:-
"24. There can be no room for raising a contention that
when an application is filed for anticipatory bail, it
cannot be adjourned without passing an order of
interim protection. A bare perusal of Section 438 (1),
Cr.P.C., would reveal that taking into consideration the
factors enumerated thereunder the Court may either
reject the application forthwith or issue an interim
order for the grant of anticipatory bail. The proviso
thereunder would reveal that if the High Court or, the
Court of Sessions, as the case may be, did not pass an
interim order under this Section or has rejected the
application for grant of anticipatory bail, it shall be
open to an officer in-charge of a police station to
arrest the person concerned without warrant, on the
basis of the accusation apprehended in such
application. In view of the proviso under Section
438(1), Cr. P.C., it cannot be contended that if, at the
stage of taking up the matter for consideration, the
Court is not rejecting the application, it is bound to
pass an interim order for the grant of anticipatory bail.
In short, nothing prevents the court from adjourning
such an application without passing an interim order.
This question was considered in detail by a Single
Bench of the High Court of Bombay, in the decision in
Shrenik Jayantilal Jain v. State of Maharashtra
Through EOW Unit II, Mumbai:[2014 SCC OnLine Bom
549] and answered as above and we are in agreement
with the view that in such cases, there will be no
statutory inhibition for arrest. Hence, the appellants
cannot be heard to contend that the application for
anticipatory bail filed in November, 2022 could not
have been adjourned without passing interim order. At
any rate, the said application was rejected on
04.04.2023. Pending the application for anticipatory
bail, in the absence of an interim protection, if a police
officer can arrest the accused concerned how can it be
contented that the court which issued summons on
account of non-obedience to comply with its order for
appearance and then issuing warrant of arrest cannot
proceed further in terms of the provisions under
Section 82, Cr. P.C., merely because of the pendency of
an application for anticipatory bail. If the said position
is accepted the same would be adopted as a ruse to
escape from the impact and consequences of issuance
of warrant for arrest and also from the issuance of
proclamation under Section 82, Cr.P.C., by filing
successive applications for anticipatory bail. In such
circumstances, and in the absence of any statutory
prohibition and further, taking note of the position of
law which enables a police officer to arrest the
applicant for anticipatory bail if pending an application
for anticipatory bail the matter is adjourned but no
interim order was passed. We have no hesitation to
answer the question posed for consideration in the
negative. In other words, it is made clear that in the
absence of any interim order, pendency of an
application for anticipatory bail shall not bar the Trial
Court in issuing/proceeding with steps for
proclamation and in taking steps under Section 83, Cr.
P.C., in accordance with law.
25. We have already held that the power to grant
anticipatory bail is an extraordinary power. Though in
many cases it was held that bail is said to be a rule, it
cannot, by any stretch of imagination, be said that
anticipatory bail is the rule. It cannot be the rule and
the question of its grant should be left to the cautious
and judicious discretion by the Court depending on the
facts and circumstances of each case. While called
upon to exercise the said power, the Court concerned
has to be very cautious as the grant of interim
protection or protection to the accused in serious
cases may lead to miscarriage of justice and may
hamper the investigation to a great extent as it may
sometimes lead to tampering or distraction of the
evidence. We shall not be understood to have held that
the Court shall not pass an interim protection pending
consideration of such application as the Section is
destined to safeguard the freedom of an individual
against unwarranted arrest and we say that such
orders shall be passed in eminently fit cases. At any
rate, when warrant of arrest or proclamation is issued,
the applicant is not entitled to invoke the
extraordinary power. Certainly, this will not deprive
the power of the Court to grant pre-arrest bail in
extreme, exceptional cases in the interest of justice.
But then, person(s) continuously, defying orders and
keep absconding is not entitled to such grant."
Referring the same, Learned P.P. drawn the attention of
the Court that since warrant of arrest is still pending against the
accused and he is evading to police arrest. Furthermore, this present
accused petitioner is also involved in another case of Panisagar in
which case he has been charge sheeted and thus it appears that the
accused petitioner is a habitual offender and considering the
materials on record at this stage there is no scope to release him on
pre-arrest bail and furthermore, since in this case charge-sheet is
submitted and there is materials against the accused, so at this
stage his plea for granting concession of pre-arrest bail cannot be
granted to him and urged for dismissal of the pre-arrest bail
application.
I have heard detailed arguments of both the sides at
length and perused the citations as referred by both the sides. As
already stated that at the time of hearing, Learned counsel for the
appellant made two sets of arguments. In one set of argument he
submitted that in such a given situation pre-arrest bail application is
maintainable which Learned P.P. opposed but the citations as
referred by Learned Counsel for the accused petitioner appears to
be appropriate and in my considered view, there is no bar on the
part of the accused petitioner to approach for pre-arrest bail and
accordingly in view of the principle of law laid down by the Hon'ble
Apex Court in the aforenoted cases (supra) it appears to this Court
that there is scope for filing anticipatory bail/pre-arrest bail by the
accused-petitioner.
Now regarding granting of pre-arrest bail, I have heard
both the sides and perused the materials on record. It appears that
as per order dated 14.09.2022 on the prayer of I/O, Learned Special
Judge (NDPS), Khowai Tripura District, Khowai issued warrant of
arrest against him and thereafter as the warrant could not be
executed so by order dated 10.07.2023 proclamation was also
issued. Challenging that proclamation the accused-petitioner
approached to this Court by filing a petition under Section 482 of
Cr.P.C. for quashing the order dated 10.07.2023 passed by Learned
Special Judge, Khowai Tripura District, Khowai. This High Court by
order dated 14.09.2023 in connection with Crl. Petn. No.18/2023
dismissed the said petition and after that the present petitioner
accused went to the Hon'ble Supreme Court of India and Hon'ble
Supreme Court by order dated 28.11.2023 passed in SLA (Crl.)
No.15125/2023 dismissed the said petition with the following
observation:-
"However, the impugned proclamation order issued against
the petitioner should have no bearing on the other legal
proceedings which the petitioner might wish to pursue, in
connection with the FIR No.2021/MGK/015."
But inspite of that, the accused petitioner did not
surrender before the Court nor the police official could execute the
warrant of arrest issued against him.
In this case, the prosecution was set into motion on the
basis of one Suo-moto complaint laid by one S.I. Ranjit Das of
Mungiakami P.S. dated 30.05.2021 to OC, Mungiakami P.S., Khowai,
Tripura alleging inter alia that on 30.05.2021 at about 0535 hrs he
along with staff was discharging vehicle checking duty at 37 Miles
near Lord Shiva temple under Mungiakami PS. At that time he
signaled a 10 wheeler dumber B/R No.AS01DC1315 which was
coming from Ambassa side for routine checking. The vehicle was
driven by one Manik Sarkar. Seeing the police party the driver
started shivering and his conduct made some suspicion. Accordingly,
they checked the documents of the vehicle and conducted through
checking in the vehicle. During checking some packets of some
phensedyl bottles, they have found inside the vehicle and accordingly
they detained the driver along with the aforesaid vehicle with
phensedyl bottles. Before checking 01 (one) Mahindra Marazzo car
B/R No.TR07C0299 was suspiciously followed by the dumper and
when the phensedyl bottles were found out the driver and another
person of the under checking car B/R No.TR07C0299 became furious
and fled away in rashness leaving driving licence and other
documents lying with him. He guarded the detained dumper and
driver at the spot and chased the said car B/R No.TR07C0299 till
Teliamura to nab them. But it disappeared. He also searched in all
probable routes and also alerted naka points under Khowai District.
Thereafter, he returned to the spot at about 0935 hrs. In the
meantime, the fact informed to OC, MGK PS and the SDPO,
Teliamura over mobile. After sometime, the SDPO, Teliamura also
reached at the spot and during checking they recovered 14,400
(fourteen thousand four hundred) bottles of Phensedyl Cough linctus.
Each bottles contained 100 ml and packed in 144 numbers of paper
carton from the said vehicle. And as the driver could not show any
documents in support of carrying those contraband items so they
seized the same along with the driver of the vehicle and hence he
laid the FIR. On the basis of the FIR, MGK PS Case No.15/2021
under Section 21(c)/25/29 of the NDPS Act, 1985 was registered.
In course of investigation, finding the involvement of the
present petitioner accused, the I/O submitted a prayer to the Court
for issuing a warrant of arrest against him as already stated. Some
other persons were arrested and finally on conclusion of investigation
the I/O has submitted charge-sheet and by order dated 10.04.2024
cognizance of offence punishable under Section 21(c)/25/29 of NDPS
Act, 1985 against (1) Manik Sarkar S/O Lt. Sunil Sarkar, (2) Partha
Dey S/O Shri Monoranjan Dey, (3) Tanmoy Bhattacharjee @ Raju
S/O Lt. Manoranjan Bhattacharjee, (4) Debabrata Dey @ Debu S/O
Lt. Sushil Ch. Dey and (5) Apu Ranjan Das S/O Shri Subodh Ch. Das.
By this time accused Manik Sarkar and Partha Dey have been
granted regular bail and accused Tanmoy Bhattacharjee have been
granted interim bail and warrant of arrest issued against this present
accused petitioner and one Apu Ranjan Das is still pending for
execution. In the meantime, order of attachment has been issued
against this present accused-petitioner by order dated 22.09.2023.
The conduct of the accused was not at all satisfactory. Even he has
been charge sheeted in connection with Panisagar P.S. Case No.22 of
2018 wherein chargesheet No.31/2019 dated 20.08.2019 is filed
against him along with other accused persons and the case was later
on numbered as Spl.(NDPS) 96 of 2019. The case is presently
pending for trial and due to non appearance of the accused and
another, the Learned Trial Court would not be able to proceed further
with the case.
In this regard, Hon'ble the Apex Court of India in a case
reported in State by the Inspector of Police Vs. B.
Ramu reported in 2024 SCC OnLine SC 4073 in para Nos.8 to 12
observed as under:-
"8. Section 37 of the NDPS Act deals with bail to the
accused charged in connection with offence involving
commercial quantity of a narcotic drug or psychotropic
substance. The provision is reproduced hereinbelow
for the sake of ready reference: -
"[37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the
Criminal Procedure Code, 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 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 subsection (1) are in addition to the
limitations under the Criminal Procedure Code,
1973 (2 of 1974), or any other law for the time
being in force on granting of bail]"
9. A plain reading of statutory provision makes it
abundantly clear that in the event, the Public
Prosecutor opposes the prayer for ball 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."
From the aforesaid principle of law laid down by the
Hon'ble Apex Court and also the citation as relied upon by the
Learned P.P. present for the prosecution in the aforenoted case
Srikant Upadhyay and Others Vs. State of Bihar and Another
(Supra) it appears to this Court that since the accused petitioner is
charge sheeted in this case and there is evidence on record that
previously he was also involved in some other cases as mentioned
above and in course of investigation he did not cooperate with the
investigating agency. Even the accused petitioner never did appear
before the Trial Court to facilitate the I/O to proceed with the
investigation of the case and from the conduct of the accused there
is no scope to give any favourable presumption in favour of the
accused petitioner as provided under Section 37 of NDPS Act and as
such considering the materials on record at this stage I do not find
any scope to consider concession of granting pre-arrest bail in favour
of the present petitioner accused.
Accordingly, the pre-arrest bail application filed by the
accused petitioner stands rejected.
The accused petitioner shall surrender before the Learned
Trial Court on or before the next date and may pray for bail before
the Learned Trial Court below and the Learned Trial Court below shall
without being biased by the observation made by this Court consider
to dispose of the case in accordance with law and proceed with the
trial of the case since chargesheet is submitted.
With this observation, the present petition stands
disposed of.
Send down the LCR to the Learned Trial Court along with
a copy of this order.
Send down the CD to I/O through Learned P.P. along with
a copy of this order.
JUDGE
Amrita
AMRITA Digitally signed by
AMRITA DEB
DEB Date: 2025.06.24
10:26:00 +05'30'
