Tripura High Court
Shri Rupak Shil vs Union Of India on 27 November, 2025
HIGH COURT OF TRIPURA
AGARTALA
BAIL APPLICATION NO.95 OF 2025
Shri Rupak Shil,
S/o Manindra Shil, aged about 31 years, resident of
Village-Brajendra Nagar, P.O. Rayer Mura,
Pandabpur, District-West Tripura, Pin-799130.
--- Applicant .
Moudud Ahmed Choudhury,
S/o Hamid Uddin Choudhury, aged about 32 years,
Resident of Gobindapur, PT-II, Village-Gobindapur,
Part-III, Silchar, District-Cachar, Assam, Pin-788101.
...Accused person.
Versus
Union of India, represented by
Shri Sumanta Chowdhury, Sr. Intelligence Officer,
Directorate of Revenue Intelligence, Agartala Regional Unit, under
Ministry of Finance, Department of Revenue, Govt. of India.
--- Respondent.
BEFORE
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
For the Applicant/petitioner : Mr. Sankar Lodh, Advocate.
Mr. Subham Majumder, Advocate.
For the Respondents : Mr. Arindam Ray, Advocate.
Date of hearing : 28.10.2025
Date of delivery of
Judgment &Order : 27.11.2025
Whether fit for reporting : YES NO
JUDGMENT AND ORDER
This bail application has been filed on behalf of accused Moudud
Ahmed Choudhury, the owner of the vehicle No. AS11-AB-3690 (Maruti
Suzuki XL6) [here-in-after referred to as the present accused person], in
connection with DRI Case No. 03/CL/NDPS/DRI/AGT/2024-25,
corresponding to Special (NDPS) Case No.180/2024, under Sections 8(c) &
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9(A) of the NDPS Act, punishable under Sections 21(a), 22(c), 23(c), 25(a), 28
and 29 of the said Act.
2. The gravamen made in the initial complaint/FIR, lodged by one
Intelligence Officer, Directorate of Revenue Intelligence, Agartala, are that on
the basis of secret information, they, along with other staff of DRI and BSF
personnel, detained the above said vehicle near Kamalghat bridge on Khowai-
Agartala road on 04.06.2024, at about 17:00 hours while the vehicle was
coming towards Agartala, and on search, they recovered 7 Nos. of plastic
packets wrapped with adhesive tape from the inbuilt box of the backside of the
said vehicle, and further 8 Nos. of such plastic packets from the bonnet of the
vehicle. Those packets contained pink coloured 'Yaba' tablets. The net weight
of such tablets was found to be 15 Kg. After recovery, necessary seizure was
made. They also detained the driver of the said vehicle, namely, Mohammed
Dawait, and another passenger, namely, Rahul Ghosh, who was sitting on the
front seat of the vehicle. The report of the Forensic Lab also affirmed the fact
that those seized tablets contained methamphetamine and caffeine.
3. The Investigating Officer carried out the investigation, and a final
report was submitted against the owner of the vehicle, namely, Moudud
Ahmed Choudhury, along with the said two accused persons, under Sections
21(c), 22(c), 23(c), 25(a), 28, and 29 of the NDPS Act.
4. During the investigation, on two occasions, notice/summons was
served upon the present accused person through his father and sister, as he was
not found available in the house, asking for his appearance before the
Investigating Officer. Despite the notices were served, he did not appear.
Therefore, in the final report, he was shown as absconder.
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5. Learned Special Judge, took congnizance of the above said
offences vide order dated 05.12.2024, and directed to issue summons upon the
present accused person. On 14.07.2025, he surrendered before the learned
Special Judge and thereafter, he was taken into judicial custody. His bail
applications were also rejected on several occasions and till date he is in
custody.
6. Learned counsel, Mr. Sankar Lodh, praying for bail of the present
accused person, argues mainly on 3 (three) points--firstly, that when a
summons was issued by the Court upon him for his appearance and he
appeared accordingly, taking him into custody thereafter by the learned Special
Judge and remanding him in judicial custody were illegal; secondly, that the
complaint was filed by the Union of India, which is not permissible as per the
provision of Section 36-A(1)(d) of the NDPS Act; and thirdly, that there are no
incriminating materials against the present accused person warranting such
custodial detention. According to learned counsel, Mr. Lodh, in the
investigation, it was only revealed that he was the owner of the vehicle and
nothing more. Learned counsel, Mr. Lodh, also submits that the accused was
not aware of service of notice/summons upon his family members; otherwise,
he would have appeared before the Investigating Officer earlier.
7. Learned counsel, Mr. Lodh, further argues that the statements of
the accused driver were recorded by the I.O., and according to said driver, one
Kamal Roy engaged him to drive the said vehicle from Silchar Railway Station
to Agartala for a remuneration of Rs.10,000/- stating that the said vehicle had
been sold to one person at Agartala, and therefore, delivery of the vehicle was
required to be made to said person. Accordingly, he was coming towards
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Agartala with that vehicle, and near Kamalghat, the co-accused Rahul Ghosh
gave him a signal to stop the vehicle, and accordingly, he stopped the vehicle.
Thereafter, said Rahul Ghosh, having introduced himself as a representative of
said Kamal Roy, boarded in the vehicle. Subsequently, the vehicle was
intercepted by the officers of the Revenue Department, Govt. of India.
Therefore, he was in no way involved in the alleged offence.
8. Therefore, according to learned counsel, Mr. Lodh, one Kamal
Roy sent the vehicle to Agartala and there is no evidence that the present
accused was involved in any manner in such an alleged drug trafficking.
Learned counsel also relies on a decision of the Hon'ble Supreme Court in the
case of Tarsem Lal Vrs. Directorate of Enforcement, AIR 2024 SC 2512:
(2024) 7 SCC 61 to gain support for his such submission that when an accused
appears before the Court after receiving summons, he cannot be sent to judicial
custody.
9. Mr. Lodh, learned counsel also relies on another decision of the
Hon'ble Supreme Court in the case of Souvik Bhattacharya Vrs. Enforcement
Directorate, Kolkata Zonal Office-II, SLP (Criminal) No. 14476 of 2023,
decided on 16.02.2024. In that case, the Special Court in a case under the
Prevention of Money Laundering Act, 2002 [for short, PMLA Act] did not
pass any specific order for issuing any summons to the accused, but despite the
same, the summons was issued and thereafter the accused voluntarily
surrendered before the Court. When his bail application was filed and heard, it
was rejected. His challenge in this regard made in the High Court was also
turned down. Hon'ble Supreme Court in that contexts observed that when no
summons was ordered to be issued against the said accused, the application for
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bail of the accused could not have been entertained and therefore, there was a
basic flaw in the proceeding conducted before the Special Court.
10. Learned counsel, Mr. Lodh also relies on another decision of the
Hon'ble Supreme Court, in the case of Satpal Singh Vrs. State of Punjab,
(2018) 13 SCC 813. The decision of this case is rendered in complete different
contexts. In the said case, one of the co-accused filed a petition for pre-arrest
bail before the High Court, claiming parity with the other two accused persons
who were granted bail by both the High Court and the Special Court, ignoring
the provision of Section 37 of the NDPS Act. Said petition for pre-arrest bail
was rejected by the High Court, and ultimately the Hon'ble Supreme Court
also rejected the same.
11. Learned counsel, Mr. Arindam Ray, for the respondents, argues
that the accused initially was an absconder during the investigation, and
therefore, when he appeared before the court after getting the summons, he
was taken into custody. Learned counsel, Mr. Ray submits that there are prima
facie materials against the present accused person regarding his involvement in
commission of the crime under the above said provisions of the NDPS Act,
and therefore, Section 37 of the Act stands as a bar in granting the bail.
Learned counsel, Mr. Ray, also refuted the argument made by the learned
counsel of the petitioner by submitting that proper notification was issued by
the Union of India designating the concerned officer of Revenue Intelligence to
investigate and submit a final report under the above said provisions of the
NDPS Act, and therefore, the criminal proceeding is well maintainable.
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12. Having considered the submissions of learned counsel of both
sides, this Court has gone through the record of the trial Court and also the
record of investigation as produced by learned counsel, Mr. Ray.
13. The point raised from the side of the petitioner that once a
summons is issued by the Court for appearance of the accused and the accused
accordingly appears, he cannot be taken into custody, is being addressed first.
On this point, learned counsel, Mr. Lodh relies on Tarsem Lal (supra),
wherein, a similar issue was raised that when a person appears before a Court
after getting summons from that Court, whether that Court can remand him in
the custody.
14. In the said case, the appellants were accused persons in a
complaint filed under section 44(1)(b) of PMLA Act, who were not arrested
after registration of the Enforcement Case Information Report (ECIR) till the
Special Court took cognizance under the PMLA Act of an offence punishable
under section 4 of the Act. After the cognizance was taken by the Special
Court on the complaints so filed under section 44(1)(b), the appellants
thereafter did not appear before the Special Court pursuant to the summons
served upon them. The Special Court issued warrants for procuring their
attendance and then they filed petition for pre-arrest bail before the Special
Court which were rejected. Their prayers also were turned down by the High
Court and then, approached the Hon'ble Supreme Court. One challenge was
made from the side of the appellants in that case before the Apex Court that if
an accused appears pursuant to the summons issued by the Special Court, there
is no reason to issue a warrant of arrest against him or to take him into custody.
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While discussing said issue with some other issues raised therein, Hon'ble
Supreme Court finally held as under:
"Operative conclusions:
33. Now, we summarise our conclusions as under:
33.1. Once a complaint under Section 44(1)(b)
PMLA is filed, it will be governed by Sections 200 to 205 CrPC as
none of the said provisions are inconsistent with any of the
provisions of PMLA;
33.2. If the accused was not arrested by the ED till
filing of the complaint, while taking cognizance on a complaint
under Section 44(1)(b), as a normal rule, the court should issue a
summons to the accused and not a warrant. Even in a case where
the accused is on bail, a summons must be issued;
33.3. After a summons is issued under Section 204
CrPC on taking cognizance of the offence punishable under
Section 4 of the PMLA on a complaint, if the accused appears
before the Special Court pursuant to the summons, he shall not
be treated as if he is in custody. Therefore, it is not necessary for
him to apply for bail. However, the Special Court can direct the
accused to furnish bond in terms of Section 88 CrPC;
33.4. In a case where the accused appears pursuant
to a summons before the Special Court, on a sufficient cause
being shown, the Special Court can grant exemption from
personal appearance to the accused by exercising power under
Section 205 CrPC;
33.5. If the accused does not appear after a
summons is served or does not appear on a subsequent date, the
Special Court will be well within its powers to issue a warrant in
terms of Section 70 CrPC. Initially, the Special Court should
issue a bailable warrant. If it is not possible to effect service of the
bailable warrant, then the recourse can be taken to issue a non-
bailable warrant;
33.6. A bond furnished according to Section 88 is
only an undertaking by an accused who is not in custody to
appear before the court on the date fixed. Thus, an order
accepting bonds under Section 88 from the accused does not
amount to a grant of bail;
33.7 In a case where the accused has furnished
bonds under Section 88 CrPC, if he fails to appear on subsequent
dates, the Special Court has the powers under Section 89 read
with Section 70 CrPC to issue a warrant directing that the
accused shall be arrested and produced before the Special Court;
if such a warrant is issued, it will always be open for the accused
to apply for cancellation of the warrant by giving an undertaking
to the Special Court to appear before the said court on all the
dates fixed by it. While cancelling the warrant, the court can
always take an undertaking from the accused to appear before
the court on every date unless appearance is specifically
exempted. When ED has not taken the custody of the accused
during the investigation, usually, the Special Court will exercise
the power of cancellation of the warrant without insisting on
taking the accused in custody provided an undertaking is
furnished by the accused to appear regularly before the court.
When the Special Court deals with an application for cancellation
of a warrant, the Special Court is not dealing with an application
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for bail. Hence, Section 45(1) will have no application to such an
application;
33.8. When an accused appears pursuant to a
summons, the Special Court is empowered to take bonds under
Section 88 CrPC in a given case. However, it is not mandatory in
every case to direct furnishing of bonds. However, if a warrant of
arrest has been issued on account of non-appearance or
proceedings under Section 82 and/or Section 83 CrPC have been
issued against an accused, he cannot be let off by taking a bond
under Section 88 CrPC, and the accused will have to apply for
cancellation of the warrant;
33.9 After cognizance is taken of the offence
punishable under Section 4 of the PMLA based on a complaint
under Section 44(1)(b), ED and its officers are powerless to
exercise power under Section 19 to arrest a person shown as an
accused in the complaint; and
33.10 If ED wants custody of the accused who
appears after service of summons for conducting further
investigation in the same offence, ED will have to seek custody of
the accused by applying to the Special Court. After hearing the
accused, the Special Court must pass an order on the application
by recording brief reasons. While hearing such an application,
the court may permit custody only if it is satisfied that custodial
interrogation at that stage is required, even though the accused
was never arrested under Section 19. However, when ED wants to
conduct a further investigation concerning the same offence, it
may arrest a person not shown as an accused in the complaint
already filed under Section 44(1)(b), provided the requirements of
Section 19 are fulfilled."
15. It was also clarified in paragraph No.24 that in the said case,
Hon'ble Court was dealing with a fact situation where the accused shown in
the complaint under Section 44(1)(b) PMLA was not arrested by ED by the
exercise of power under Section 19 PMLA till the complaint was filed.
16. While arriving at the above said conclusions, Hon'ble Supreme
Court interpreted the provisions of sections 43,44(1)(b), 45(1), 46, 65, 71 of
PMLA and the provisions of sections 88, 170, 200-204, 205, 437, 440 of Code
of Criminal Procedure (for short, CrPC). Now, the applicability of said
decision in Tarsem Lal is being discussed with reference to the provisions of
NDPS Act and the facts involved in the present case in hand.
17. The alleged incident occurred in the present case is on
04.06.2024, and the first complaint was lodged on the following day before the
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Special Judge i.e. prior to the date 01.07.2024 when the BNSS came into force.
The provision of section 531(2) (a) of BNSS envisages that if, immediately
before the date on which the Sanhita (BNSS) came into force, there is any
appeal, application, trial, inquiry or investigation pending, then such appeal,
application, trial, inquiry or investigation shall be disposed of, continued, held
or made, as the case may, in accordance with the provisions of CrPC.
Therefore, the matter is being discussed in the light of provisions as embodied
in CrPC. In Tarsem Lal also, applicability of provisions of CrPC was
discussed.
18. As per provisions of section 4 of PMLA, the prescribed
punishment is within the range of imprisonment for 3 years to 10 years.
Section 43 of the Act prescribes designation of one or more Courts of Sessions
as Special Court for trial of cases under the said Act. Pari materia provision is
also there under section 36 of the NDPS Act. Section 44(1)(d) of PMLA
provides that a Special Court while trying the schedule offence or the offence
of money-launder shall hold trial in accordance with the provisions of CrPC, as
it applies to a trial before a Court of Sessions. Therefore, as per provisions of
the said Act, a Special Court constituted under the provisions of PMLA is
deemed to be a Court of Sessions. Similarly, as per provisions of section 36A
of NDPS Act, the provisions of CrPC (including the provisions as to bail and
bonds) shall apply to the proceedings before a Special Court and for the
purposes of the said provisions, the Special Court shall be deemed to be a
Court of Sessions. In section 51 of NDPS Act, it is also provided that the
provisions of CrPC shall apply, in so far as they are not inconsistent with the
provisions with the provisions of the Act, to all warrants issued and arrests,
searches and seizures made the Act. Therefore, for trial under both the Acts,
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there is applicability of the provisions of CrPC and in both cases, the Special
Court is deemed to be the Court of Sessions.
19. The provision of section 437(1) CrPC, specifically exclude it's
applicability when a person accused of, or suspected of, the commission of any
non-bailable offence is arrested or detained without warrant by the police or
appears or is brought before the court of Sessions or before the High Court.
20. Section 88 of CrPC, on the other hand, provides that when any
person for whose appearance or arrest the officer presiding in any Court is
empowered to issue a summons or warrant, is present in such Court, such
officer may require such person to execute a bond, with or without sureties, for
his appearance is such Court, or any other Court to which the case may be
transferred for trial. Said provision does speak only about furnishing a bond for
appearance and not the bail bond. As per the provisions of section 2(x) of
CrPC, any case relating to an offence punishable with death, imprisonment or
imprisonment for a term exceeding two years are to be treated as 'warrant
case'.
21. As per the provision of section 36A(d) of NDPS Act, a Special
Court may, upon perusal of police report of the facts constituting an offence
under the Act or upon complaint made by an officer of the Central Government
or a State Government authorized in his behalf, take cognizance of that offence
without the accused being committed to it for trial. Further, as per provision of
section 2(d) of CrPC, complaint means any allegation made orally or in writing
to a Magistrate, with a view to his taking action under the Code, that some
person, whether known or unknown, has committed an offence but does not
include a police report. Therefore, for all practical and legal purposes, the
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charge-sheet filed in this case by the officer of Directorate of Revenue
Intelligence is required to be treated as 'complaint'.
22. Taking note of all these provisions of CrPC, the Apex Court in
Tarsem Lal observed that a complaint filed under section 44(1)(b) of PMLA
wouold be governed by sections 200 to 204 CrPC Similarly, in the present case
also, such provisions are applicable.
23. The Apex Court, while holding that when an accused appears
before the Special Court on a summons being served on him, he cannot be
deemed to be in custody, further observed as under:
"15. There are provisions in CrPC which show
that an accused who appears before the court under a
summons issued on a complaint cannot be treated as if he is
in a deemed custody. One such provision is Section
205CrPC, which reads thus:
"205. Magistrate may dispense with personal
attendance of accused.--(1) Whenever a Magistrate issues a
summons, he may, if he sees reason so to do, dispense with the
personal attendance of the accused and permit him to appear
by his pleader.
(2) But the Magistrate inquiring into or trying the
case may, in his discretion, at any stage of the proceedings,
direct the personal attendance of the accused, and, if
necessary, enforce such attendance in the manner
hereinbefore provided."
16. We will examine whether Section 205CrPC will
apply to a complaint under Section 44(1)(b) PMLA. Sections
65 and 71 PMLA read thus:
"65. Code of Criminal Procedure, 1973 to
apply.--The provisions of the Code of Criminal Procedure,
1973 (2 of 1974) shall apply, insofar as they are not
inconsistent with the provisions of this Act, to arrest, search
and seizure, attachment, confiscation, investigation,
prosecution and all other proceedings under this Act.
***
71. Act to have overriding effect.--The
provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any other law
for the time being in force."
17. After carefully perusing the provisions of
PMLA, we find that there is no provision therein which is in
any manner inconsistent with Section 205CrPC. Hence, it
will apply to a complaint under PMLA. A summons is issued
on a complaint to ensure attendance of the accused before
the criminal court. If an accused is in custody, no occasion
arises for a court to dispense with the personal attendance of
the accused. We may note here that Section 205 empowers
the court to grant exemption only when a summons is
issued. Sub-section (2) of Section 205 provides for enforcing
the attendance of the accused before the court at the time of
the trial. If the accused who appears pursuant to the
summons issued on a complaint were deemed to be in
custody, the lawmakers would not have provided for Section
205. Hence, we reject the argument of the learned ASG that
once an accused appears before the Special Court on a
summons being served to him, he shall be deemed to be in
custody."
24. At paragraph No.20, the law relating to submission of bond for
appearance under section 88 of CrPC by the accused on his appearance on
receipt of summons issued by the Special Court, the Hon'ble Supreme Court
further observed thus:
"20. Firstly, after examining the provisions of
PMLA, it is apparent that Section 88 is in no manner
inconsistent with the provisions of PMLA. Therefore,
Section 88 will apply after filing of a complaint under
Section 44(1)(b) PMLA. If Section 88 is to apply even before
a summons is issued or served upon a complaint, there is no
reason why it should not apply after the service of summons.
A discretionary power has been conferred by Section 88 on
the court to call upon the accused to furnish bonds for his
appearance before the court. It does not depend on the
willingness of the accused. The object of Section 88 is to
ensure that the accused regularly appears before the court.
Section 88 is a part of Chapter VI CrPC under the heading
"Processes to Compel Appearance". Section 61, which deals
with the form of summons and mode of service of summons,
is a part of the same Chapter. When a summons is issued
after taking cognizance of a complaint to an accused, he is
obliged to appear before the criminal court on the date fixed
in the case unless his presence is exempted by an express
order passed in the exercise of powers under Section
205CrPC. Therefore, when an accused appears pursuant to
a summons issued on the complaint, the court will be well
within its powers to take bonds under Section 88 from the
accused to ensure his appearance before the court.
Therefore, when an accused appears before the Special
Court under a summons issued on the complaint, if he offers
to submit bonds in terms of Section 88, there is no reason for
the Special Court to refuse or decline to accept the bonds.
Executing a bond will aid the Special Court in procuring the
accused's presence during the trial.
25. While holding that acceptance of bond under section 88 of CrPC
does not amount to grant of bail, at paragraph No.24, the followings were also
observed:
"24. Now, we come to the issue of whether an
order of the court accepting bonds under Section 88
amounts to grant of bail. If an accused appears pursuant to
a summons issued on the complaint, he is not in custody.
Therefore, there is no question of granting him bail.
Moreover, even if the accused who appears before the court
does not offer to submit bonds under Section 88 CrPC, the
court can always direct him to do so. A bond furnished
according to Section 88 is an undertaking to appear before
the court on the date fixed. The question of filing bail bonds
arises only when the court grants bail. When an accused
furnishes a bond in accordance with Section 88 CrPC for
appearance before a criminal court, he agrees and
undertakes to appear before the criminal court regularly
and punctually and on his default, he agrees to pay the
amount mentioned in the bond. Section 441CrPC deals with
a bond to be furnished by an accused when released on bail.
Therefore, in our considered view, an order accepting bonds
under Section 88 from the accused does not amount to a
grant of bail."
26. While deprecating the procedure of taking of an accused into
custody, when he appears on receipt of a summons issued from the Special
Court, on the complaint and thereafter compelling him to file a bail
application, the Apex Court at paragrapah No. 31 further observed that such
practice was completely illegal.
27. Therefore, law is settled by the Hon'ble Supreme Court that in
such a case when summons is issued by the Court and accused appears on
receipt of the same, the Court can ask for a bond under Section 88 of CrPC and
cannot take him into custody. In the present case in hand also, the Directorate
of Revenue Intelligence did not arrest the present accused before the final
complaint after investigation was submitted by them in the Court of learned
Special Judge.
28. In view of above position of law, the Court is not willing to
further enter into the merits of the case to examine the applicability of Section
37 of the NDPS Act, inasmuch as, the accused is not required to ask for bail on
his surrender before the learned Special Judge.
29. So far as the pleas raised by the petitioner that the complaint filed
on behalf of the Union of India is not maintainable is concerned, the provision
of Section 36-A(1)(d) of the Act envisages that a Special Court may, upon
perusal of police report of the facts constituting an offence under this Act or
upon complaint made by an officer of the Central Government or a State
Government authorised in his behalf, [emphasis laid] take cognizance of that
offence without the accused being committed to it for trial.
30. Therefore, on a plain reading of the said provision, it appears that
when such a complaint is filed by any officer of the Central Govt. or the State
Govt., it is filed on behalf of the said appropriate government, and therefore, it
will be too technical approach if such contention is accepted, for, it is clearly
mentioned in the complaint that it is being filed by the Union of India being
represented by the said authorized officer of Revenue Intelligence, and
therefore, such contention of the petitioner cannot be accepted.
31. In view of the above, it is ordered that the present accused person,
namely, Moudud Ahmed Choudhury, shall be released on his furnishing a
bond under Section 88 of CrPC with a suitable amount to be determined by the
learned Special Judge, with one surety on his giving of an undertaking before
the learned Special Judge that he shall regularly and punctually appear before
the learned Special Judge on the date fixed to face the trial.
32. The bail application is accordingly disposed of in the above said
terms. Pending application(s), if any, shall also stand disposed of.
33. Registry shall return the record of the learned trial Court with a
copy of this order immediately, and shall also return the record of prosecution
to Mr. Arindam Ray, learned counsel for the respondent.
(S. DATTA PURKAYASTHA, J)
SANJAY GHOSH Digitally signed by SANJAY GHOSH
Date: 2025.11.27 18:00:21 +05'30'
Sanjay
