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Judgment
S. G. Chattopadhyay, J
[1] This is an application under Section 438 Cr.P.C for granting pre arrest bail to Bikash Ray, petitioner,who is apprehending arrest in Bishalgarh P.S. case No.2021 BLG/059 which has been registered under Sections 20(b)(ii)(C), 25, 27A, 29 and 32 of the NDPS Act, 1985.
[2] Heard Mr.J.Bhattacharjee, learned counsel appearing for the applicant. Also heard Mr.Ratan Datta, learned PP appearing for the State respondent.
[3] The bare facts essential for disposal of the bail application is as under:
Sri Parthanath Bhowmik, Inspector of Police of Bishalgarh police station lodged suo motu written FIR with the Officer in Charge of Bishalgarh police station alleging, inter alia, that on 24.07.2021 he received an information from own source that a truck bearing registration No. TN47-AT 4858 (Ashok Leyland Truck) was coming towards Bishalgarh from Udaipur and the said vehicle was carrying dried ganja. Sri Bhowmik recorded the said information in the general diary of the police station vide GD entry No. 8 dated 24.07.2021 and procured permission from the jurisdictional Superintendent of Police to step into action. Then, he along with required number of Officers and Staff left the police station vide GD entry No. 10 dated 24.07.2021 and started noticing the vehicles which were coming from the said direction. The suspected vehicle arrived in front of Bishalgarh police station at 05.45 am and the same was detained by the police team. Driver Selvaraj K of Tamil Nadu told the police team that the vehicle was carrying rubber sheet. When police undertook a search in the said vehicle, the driver tried to flee away. He was however, detained and brought to police station for interrogation. With the help of interpreter, police interrogated him for about three hours and came to know that during the previous night rubber sheet was loaded in his vehicle from a place called Madhab Bari at Jirania. Thereafter, he was taken to a place between Tepania and Killa in Gomati Tripura for loading dried ganja where he noticed huge quantity of dried ganja stored in a place and he learnt from the conversation of the people that Bishu Kumar Tripura was the owner of the said contraband. 3390 Kg dried ganja wrapped in rubber sheets was recovered from the said vehicle and the same was seized in presence of witnesses.
[4] Pursuant to the said FIR lodged by Inspector Parthanath Bhowmik, Bishalgarh PS case No. 2021/BLG/059 under Sections 20 (b)(ii)(C), 25, 27A, 29 and 32 of the NDPS Act, 1985 was registered and investigation of the case was taken up.
[5] Apprehending arrest in the case, accused petitioner has moved this court by means of filing this petition under Section 438 Cr.P.C seeking pre arrest bail.
[6] Mr.J.Bhattacharjee, learned counsel appearing for the petitioner contends that there is no material to justify arrest and detention of the present petitioner. The petitioner is not even named in the FIR. Only from the submission of the learned PP in the course of hearing of AB No.58 of 2021 his name transpired when learned PP submitted before the court that the investigating agency was also looking for the present petitioner. Therefore, petitioner Bikah Roy is apprehending his arrest in the case for which he has moved this application under Section 438 Cr.P.C.
[7] It is contended by Mr. Bhattacharjee, learned counsel that even the FIR named accused persons have been released on bail in this case. The driver of the vehicle from whose physical possession the contraband was seized has also been released on bail. Counsel therefore, submits that the present petitioner cannot be treated differently and he may also be released on bail. Counsel refers to the order dated 20.08.2021 of this court passed in AB 58 of 2021 whereby accused Bishu Kumar Tripura of this case was released on anticipatory bail under similar circumstances. Learned counsel therefore, urges for release of the petitioner on bail on any condition whatsoever.
[8] Appearing for the prosecution, Mr. Ratan Datta, learned PP vehemently opposes the bail application and submits that the petitioner is a habitual drug peddler who has been charge sheeted for similar offences in Manu P.S. Case No. 2021 MANU 004. Relying on the case diary, Mr.Ratan Datta, learned PP also contends that it would emerge from the CDR collected by the investigating agency that the petitioner was having frequent conversation over cell phone with accused driver Selvaraj K when the said driver was proceeding towards Bishalgarh with the contraband in his vehicle. According to learned PP, the said circumstance demonstrates that he was an active collaborator in smuggling the said contraband.
[9] Relying on the decision of the Apex Court in STATE OF KERALA AND OTHERS Versus RAJESH AND OTHERS reported in (2020) 12 SCC 122, Mr.Datta, learned PP submits that in the said case the Apex Court has succinctly held that liberal approach in the matter of bail under NDPS case is indeed uncalled for. Counsel submits that where the offence involves commercial quantity, Section 37 of the NDPS Act will come into play and the restrictions put under Section 37 of the Act with regard to grant of bail shall apply. According to learned PP, the Apex Court has laid down broad parameters with regard to grant of bail in NDPS cases in the said judgment which are as under:
“19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.
We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.
The submission made by learned counsel for the respondents that in Crime No. 14 of 2018, the bail has been granted to the other accused persons (A-1 to A-4), and no steps have been taken by the prosecution to challenge the grant of post-arrest bail to the other accused persons, is of no consequence for the reason that the consideration prevailed upon the court to grant bail to the other accused persons will not absolve the act of the respondent-accused (A-5) from the rigour of Section 37 of the NDPS Act.”
[10] Also relying on the decision of the Apex Court in SATPAL SINGH Versus STATE OF PUNJAB reported in (2018) 13 SCC 813, Mr.Datta, learned PP contends that in view of the restrictions under Section 37 NDPS Act, bail cannot be granted to an accused under NDPS Act involving commercial quantity without recording the required level of satisfaction of the court about the innocence of the accused. Counsel has relied on paragraph 14 of the judgment which is as under:
“14. Be that as it may, the order dated 21-09-2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Section 438 or 439 CrPC without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21-09-2017 is only to be set aside and we do so.”
[11] Leaned PP further argues that investigation is under progress and materials against the petitioner are forthcoming. Under these circumstances, his release on anticipatory bail will frustrate the investigation of the case. It is contended by learned PP that in view of the growing number of cases of drug trafficking in the state and the materials available on record, his bail petition may be turned down.
[12] In the present context commercial quantity of contraband was seized by the investigating agency. Prosecution has brought to record the past criminal antecedent of the petitioner. The fact that he has been charge sheeted in Manu P.S.Case No.2021/004 for similar offence is not disputed. The case diary also contains incriminating materials supporting the charges against him. The CDR collected and produced by the investigating agency demonstrates that the accused had frequent and long telephonic conversation with the accused driver of the offending vehicle prior to seizure of the contraband from his vehicle. The materials available on record has, thus, made out a good prima facie case against the accused. There is merit in the submission of learned public prosecutor that if the accused is bailed out at this stage, fair investigation would be impaired and collection of evidence against the accused would be obstructed.
[13] In view of the legislative mandate of Section 37 of the NDPS Act and the judgments of the Apex Court cited to supra, this court is of the view that in the facts and circumstances of the case, it would not be appropriate to allow pre arrest bail to the accused.
[14] Resultantly, his bail application stands rejected and the case is disposed of.
Pending application(s), if any, also stands disposed of.
Return the CD.