Dhruba Manik Jamatia vs State Of Tripura

Heard Mr. S Lodh, learned counsel appearing for the applicant as well as Mr. S Ghosh, learned Spl. PP and today Mr. R Dutta, learned PP appearing for the State.

By the order dated 06.05.2019 delivered in Criminal Appeal Nos. 843-844 of 2019 the Apex Court remanded the matter to be reconsidered as in the earlier order there was no reference to Section 37 of the Narcotic Drugs and Psychotropic Substance Act, 1985, NDPS Act in short or the requirement under the said Section 37 was met. But the Apex Court has categorically observed in the order dated 06.05.2019 that they have not expressed any opinion on the merit of the matter. However, for purpose of reconsideration, the order dated 27.06.2018 granting pre-arrest bail was set aside.

The brief fact as disclosed in the First Information Report filed by one Sub-Inspector of Police namely, Jiban Chandra Das is that on receipt of information from a secret source that one big truck bearing registration No. AS01 GC 0487 had reached Hadra area near Hadra SB School and unloaded contraband goods like Phensedyl & Ganja and those materials were kept inside the old mudwalled room of the school, the informant rushed to the place mentioned in the information and found three bags of dry ganja and 28 bags of Phensedyl (codeine substance) containing 7945 bottles. According to the information, 5 kgs of dry ganja was recovered by the informant but nobody appeared to claim the proprietorship for those goods. The seizure was caused in presence of the witnesses and samples were drawn from the place of seizure.

According to the secret information received by the informant, in the courtyard of the house of the applicant two small vehicles were parked and those might be used for transporting those contraband materials. Based on the said information, Kakraban PS case No. 2018/KKB/075 under Section 20(b)/ (c)/22(c) of the NDPS Act, 1985 was registered and taken up for investigation.

The applicant had without delay approached the High Court by filing an application under Section 438 of CrPC claiming that at the time of seizure, he was outside the State to earn his livelihood by driving heavy vehicle. Particularly, in para 7 of the application it has asserted that he was engaged as the driver of Truck bearing registration No. NL-01-L-3228. He took the journey from Kolkata with consignments to Agartala. On 15.05.2018 he took load from Darcl Logistics Limited and Bhushan Power and Steel Limited. On 16.05.2018 he took further load from Maa Tara Hardware. Thereafter, on 17.05.2018 at night he started his journey from Kolkata to Agartala. On 19.05.2018 he was at Coochbehar where he paid Rs.236/- to the weighbridge authority. On 20.05.2018 when he was at Guwahati, he came to know from his family members that in the morning of 20.05.2018, the police raided his house to arrest him in connection with the said PS Case. He, in consultation with the owner of the vehicle, engaged another driver to drive the vehicle. In support of his contention, he has annexed the challans issued by the consignors & the Bill of Weighbridge dated 19.05.2018 (Annexures 2,3,4,&5 to the application respectively).

But when the matter is taken up, it has been stated by the counsel for the parties that after completing the investigation in respect of the allegations made against the applicant, the final police report has been submitted and hence all the materials as surfaced during investigation is part of the final police report. A copy of the report has been filed by Mr. R Dutta, learned PP and earlier also by Mr. Lodh, learned counsel for the applicant in the course of the hearing.

Mr. Lodh, learned counsel has made his submission robustly by stating that now even if all the materials that have been collected during the investigation are considered by this Court, even then there is reasonable ground to believe that the applicant is not guilty of the offence as alleged against him. Moreover, all through he has been taking advantage of the benefit of bail granted by this Court and there is no allegation from the State or the investigating agency that he was found repeating similar offence. It would itself, according to Mr. Lodh, satisfy the second condition provided under Section 37(1)(b)(ii).

That apart, Mr. Lodh, learned counsel has submitted that from the very beginning for the reason best known to the investigating agency, the applicant has been targeted even though there was no material against him of his involvement in the alleged crime. Mr. Lodh, therefore, submitted that if the investigation was not unfair, even the police would not have filed the charge sheet against the applicant but since the investigation has been made targeting the applicant, the final report has been submitted against the applicant without any persuasive material. However, the applicant has no reluctance to face the trial. But Mr. Lodh has submitted that this Court may reconsider and allow the applicant to remain on bail and face the trial subject to the conditions as may be imposed by this Court.

Mr. Lodh, learned counsel has categorically submitted that the contraband materials were seized from a place over which the applicant cannot have any control in any manner. From the mud walled room those contraband materials were seized and that mud wall room is a part of the Hadra SB School. That apart, the vehicles which were parked in the courtyard of the applicant were also not proved to have any nexus with the offence or transporting the contraband materials. One of the vehicles as parked in the courtyard used to be driven by his younger brother Naithok Jamatia and his younger brother used to keep the vehicle in the courtyard for his convenience as he was also staying in the same premise. The other vehicle belonged to the brother-in-law of the applicant who used to park his vehicle in the applicant‟s courtyard.

Mr. Lodh, learned counsel has taken this Court to the memorandum of seizure to show that one vehicle (Truck bearing No. AS01 GC 0487) was shown to have been seized from the courtyard of the applicant, but from the statement recorded under Section 161 Cr.P.C. of the witnesses, it would be apparent that the witnesses of the seizure had categorically stated that the truck vehicle was seized on a road approaching towards the house of the applicant.

From another seizure list, it would be shown that the contraband materials were seized from an open mudwalled room, adjacent to the dwelling house of the applicant. But the witnesses have stated that room is part of the Hadra SB School. For illustrating his submission, Mr. Lodh, learned counsel has taken this Court to the statement of one Shyamal Bhowmik who has stated that the applicant and his brother Nithok Jamatia are involved in the illegal trade of the narcotic substances (ganja and Phensedyl) and from the house of the applicant the truck vehicle and two small vehicles having registration No.TR07 0543 and TR01 AF 0792 were seized and that witness has further stated that as those were parked on the courtyard of the applicant, is therefore "suspicious".

Another witness, Nikhil Sarkar has stated that the Truck vehicle was on the road approaching the house of the applicant but the two other vehicles were in his courtyard and therefrom those vehicles were seized by the police.

Another witness, namely, Sankar Das has stated that the applicant and his brother namely, Nithok Jamatia brought the contraband materials by AS01 GC 0487 (Truck) and stored those materials there and to transport those materials those two small vehicles were parked in their courtyard. But this witness, as pointed out Mr. Lodh, did not disclose from whom he got this information as he has not asserted that he himself had witnessed the unloading of the materials or hearing those materials being stored in the open mudwalled room of the school. He has made a statement that "from the people of the locality and from a secret source, he came to know that the applicant, his younger brother Nithok Jamatia, Shyamal Das were involved in this illegal trade".

The other witness that Mr. Lodh has referred to is Pradip Kumar Das. He has also stated that in the courtyard of the applicant there were three vehicles for transporting those contraband materials to different destinations. He has given the vehicle numbers. He has made a categorical statement that Shyamal Das used to illegally imported the contraband materials for selling the narcotic goods to people. According to him, he was present that night when the police raided the house of the applicant.

Mr. Lodh, learned counsel also referred to the evidence of Sanjit Sarkar who after receiving the information raided the area and found two small vehicles in the courtyard of the applicant but the truck was on the approach road of the applicant‟s house. This witness has given the description of the narcotic materials which they had seized during the said raid.

Another witness, however, not referred by Mr. Lodh, has stated that he saw the applicant and his younger brother sometimes coming to the abandoned room from where the narcotic substances were seized.

Mr. Lodh, learned counsel has made a serious allegation that even though the final report was filed on 03.05.2019 where it has been stated that the reports from the State Forensic Science Laboratory (SFSL) had been received but on 29.07.2019 the investigating officer filed a report bearing Kakraban PS dispatch No. 8139 dated 28.07.2019 to the special Court stating that the investigation is almost complete, but report from SFSL is yet to be received and the other accused persons are yet to be arrested. Mr. Lodh, learned counsel seriously lambasted the prosecution to play carrot and stick in the court proceeding, inasmuch as the reports were available with the investigating officer.

Before the submission of Mr. R Dutta, learned PP is elaborately recorded, a reference has been made by Mr. Dutta to the final report dated 18.07.2019 to bring the attention of this court that the report, in respect of one seized mobile, was not available with the investigating agency from the Cyber Forensic Division.

Mr. Dutta, learned PP, however, has submitted that may be the trial court did not get the report correctly and accordingly, the observation that has been recorded in the order dated 29.07.2019. On the part of the investigating agency there was no carrot and stick approach and the police has transparently investigated the matter and no offender centric method was even appeared during the entire investigation.

Be that as it may, Mr. Lodh, learned counsel has further submitted that the statement that the applicant was outside the state and not in the state at the time when the raid was carried out in his house and the materials were seized, was not contested by the state despite specific averments made in the application and in this regard, Mr. Lodh has referred to a passage of the investigation report which is as follows:

"In Anticipatory Bail Application filed u/s 438 CrPC in c/w A.B No-61 of 2018 the accused Petitioner Sri Dhruba Manik Jamatia stated by swearing Affidavit before the Hon'ble High Court of Tripura in his petition in Para no 9, that Naithok Jamatia is his brother and he used to keep the Wagon R vehicle in their house. It is evident that Naithok Jamatia was driving the Wagon R vehicle bearing registration No-TR-07-0543 on 19/05/2018 with his owner accused Shyamal Das and it was not for regular parking purpose. Further, the residence of the owner of the vehicle accused Shyamal Das is situated at Jangalia under Bishalgarh PS, in another District and at about 35/40 km distance."

It has been further observed in that report that the accused-applicant submitted a document in the form of Annexure-2 in which he claimed that he was driving one truck bearing registration No. NL-01-L-3228 owned by the accused Shyamal Das on 15/05/2018 from Kolkata. Shyamal Das had also disclosed the registration number of his vehicle in his interrogation after his arrest on 05/07/2018 from Kolkata, Jharda Bagan under Baguihati PS. It is observed that the accused-applicant and Shyamal Das are members of the gang which is involved in smuggling of NDPS articles. But Mr. Lodh has seriously contended that if the entire police report is scanned there is not an iota of evidence to establish such allegation as projected.

From the other side, Mr. S Ghosh, learned Spl. PP and today Mr. R Dutta, learned PP appearing for the State have submitted that the circumstances are so "eloquent‟ and if those are placed they will form a chain indicating the act in concert of the applicant. That apart, Mr. Ghosh has categorically submitted that the forensic report shows that the materials which were seized from the place of seizure are all contraband narcotic substance and therefore, it cannot be said that the applicant has made out the grounds for the court to believe that in all probability the applicant has not committed the offence. Thus, keeping in view the rigors of the provision made for a special purpose under Section 37 of the NDPS Act, the bail as sought by the applicant be rejected.

Mr. Dutta, learned P.P. has submitted in order to supplement that since the police has filed the report against the applicant, the court should prima facie believe that there are materials against the applicant for coming to that inference by the police officer.

Further, Mr. Dutta, learned P.P. has submitted that the distance between the homestead of the applicant and the place of seizure is hardly ten metres and as such it can be assumed that the applicant had stored the materials with the help of his brother Nithok Jamatia.

Reference has been made to Mohanlal Vs. State of Punjab reported in AIR 2018 SC 3853 where the Apex Court has observed that a fair trial to an accused is a constitutional guarantee under Article 21 of the Constitution and it would be a hollow promise if investigation in cases under Act of 1985 why not to be fair or raised serious questions about its fairness apparent on face of investigation. In respect of reverse burden of proof, onus will lie on prosecution to demonstrate on face of it that investigation was fair and judicious and there is no circumstances that may raise doubts about its veracity. Obligation of proof beyond reasonable doubt will take within its ambit, the fair investigation, in absence of which there can be no fair trial. If investigation itself is unfair to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in police which may well lead to false implication also. Investigation in such cases would then become empty formality and a farce. Such an interpretation therefore naturally has to be avoided.

In the course of submission, Mr. Lodh has also referred to the decision in Babubhai Vs. State of Gujarat & Ors., reported in (2010) 12 SCC 254 where the Apex Court while dealing with the investigation of a criminal offence has observed as under:

"32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth." [Emphasis added]

According to Mr. Lodh, learned counsel for the accused applicant, mere reading of the materials collected by the investigating officer for sending up the applicant for trial shows that without any evidence of worth, the applicant has been "framed‟ for facing the trial.

Reference has also been made by Mr. Ghosh, learned Spl. P.P. to a decision of this Court in Haricharan Biswas Vs. State of Tripura & Ors. reported in (2018) 2 TLR 733 where this Court has observed after considering a catena of relevant cases that the Apex Court in State of Madhya Pradesh v. Kajad, (2001) 7 SCC 673 while taking note of Section 37 of the NDPS Act held that negation of bail is the rule and its grant an exception under Section 37 of the Act and for granting the bail the Court must, on the basis of the record produced before it, be satisfied that there are "reasonable grounds for believing that the accused is not guilty of the offences with which he is charged‟ and further that "he is not likely to commit any offence while on bail‟.

In Sami Ullaha vs. Superintendent, Narcotic Central Bureau, reported in (2008) 16 SCC 471 and Union of India v. Rattan Mallik alias Habul, reported (2009) 2 SCC 624 the Apex Court has further clarified that when a special statute makes a specific provisions for dealing with matters, arising thereunder, including an application for grant of bail, such provisions cannot be ignored while dealing with such an application and further observed as follows:

"9. The broad principles which should weigh with the Court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court and, therefore, for the sake of brevity, we do not propose to reiterate the same. However, when a prosecution/conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such an application."

In Haricharan Biswas (supra) this Court had occasion to observe that liberty of an individual is not absolute for the society by its collective wisdom when enacted a specific law by interfering with the liberty for the interest of the societal order, such provision has to be strictly followed. No individual can make an attempt to create a concavity in the stem of the social stream. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow.

Mr. Ghosh, learned Spl. PP has made reference to Pranab Das @ Manna vs. State of Tripura reported in (2019) 1 TLR 54 but in that case, the entire proposition is based on the case of Haricharan Biswas (supra).

A further reference has been made to the case of Surinder Kumar Khanna vs. Intelligence Officer, Directorate of Revenue Intelligence reported in AIR 2018 SC 3574 where the Apex Court had occasion to observe that it is accepted that apart from the statement of the co-accused there is no material suggesting involvement of the appellant in the crime in question. Thereafter, the Apex Court has observed categorically as follows:

"We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him."

This reference has been made in respect of the interrogation report prepared by the investigating officer after examining one of the co-accused in the case, namely, Shyamal Das. This Court has considered the provision of Section 37 of the NDPS Act, but without making reference to the section itself, on the earlier occasion by holding that when it appears before the Court that the prosecution story on the face of it was so improbable in respect of involvement of the accused in the case, it will be only appropriate to allow the person to remain on bail under stricter conditions allowing the investigating agency to complete the investigation. Now, here in this case, after investigation, the materials are before the Court. Moreover, Mr. Ghosh, learned Spl. PP has categorically made a statement that so far the investigation against the applicant is concerned, it is complete and so far the investigation that remains incomplete is against the other accused persons. This statement has given this Court an assurance that the investigating agency has come to an inference that there is no other trail to be followed in the investigation in respect of the applicant.

No doubt, the allegation as brought by way of the information is of serious nature such heinous trade of the narcotic substances is striking at the root of the society. But at the same time, if the material collected during the investigation is of such nature [without making further comments on the merit of the materials] this Court comes to a view after hearing the public prosecutor at length, that there are reasonable grounds for believing that the applicant-accused may not be guilty and there is no likelihood of his committing a further offence, it would be appropriate to allow him to remain on bail.

"Reasonable grounds‟ is the expression by which it means and applies something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged with and this reasonable belief, as contemplated in turn points to existence of facts and circumstances which are sufficient in themselves to justify the recording of satisfaction that the accused may not be guilty of the offence charged. [Union of India vs. Shib Shankar Kesari, reported in JT 2007 (7) SCC 798].

At the same time, bail cannot be denied to an accused by forcing that there is a possibility of the accused involved in another offence while on bail. Where there are no criminal antecedents on the part of the accused brought on record, it cannot be said there are reasonable grounds for believing that he is likely to commit any offence while on bail. Moreover, this Court has noticed that the prosecution has not made any complaint against the applicant that he had abused the privilege of bail for furtherance of similar offence.

At this juncture, Mr. Dutta, learned PP has submitted that the applicant did not cooperate with the investigation agency. When this Court queried how the applicant did not cooperate, Mr. Dutta submitted that certain questions were put to the applicant to which he remained silent. When this Court again asked Mr. Dutta, what kind of questions the applicant was posed to, Mr. Dutta has fairly submitted that those questions are not available in the case diary. Thus, this becomes irrelevant for consideration.

In Zafar Khan Wahid Khan vs. Union of India, reported in 1993 Bombay Cr. C. 550, it was observed that Court that where it is an allegation that certain contrabands were concealed in a consignments the investigation must also indicate that the accused knew or had reasons to believe that the contraband was in that consignment. Even though the residence, godown etc., were raided, not a single incriminating document was seized, nor is there any material to indicate from the other investigation that this accused was, in fact, a participant in the case. It is for that reason, it would be improper to retain him in custody. Probability of repeating offence has to be deduced on tangible materials only.

Having scrutinized the police report, this Court is of the view that no tangible material is available which can link participation of the applicant in the offence. The persons who have been examined during the investigation were not the witnesses but they have stated what they have heard from the local people but without naming them. Not a single witness is there to show that the applicant had stored the contraband materials in that abandoned school room or he had brought that truck vehicle which was seized from a nearby road. One of the witnesses stated that sometimes he saw the applicant and his brother going to that abandoned room but no time and date to link him to those materials. Moreover, it appears that the mudwalled school room is open and those are very important materials.

Having due regard to the rigorous conditions attached for granting bail, this court is of the view that no material is available which may help come inference, contrary to the reasonable ground of believing the petitioner not participatory on probability of his innocence. Thus, this Court is of the view that the petitioner has made out a case for allowing him to remain on pre-arrest bail, subject to conditions.

In the context of submission of charge sheet in the Special Court, the applicant is directed to surrender before the Special Court to take a regular bail, in terms of this order. The judge of the Special Court shall, on surrender of the petitioner, allow him to go on bail on the following conditions:

(i) The applicant shall report to the court once in ten days till the discussion on charge takes place.

(ii) He shall not threaten any witness, cited or not cited, having seized of the material information.

(iii) Further he should not in any way meddle with the investigation, which is still incomplete.

While granting the regular bail, the applicant shall submit a bail bond of Rs.1,00,000/- supported by two sureties of the like amount to the satisfaction of Judge of the Special Court.

Breach of any of the above conditions shall enable the state to approach this Court for cancellation of bail.

In terms of the above, this application stands allowed and disposed of.

The police report as submitted by Mr. Dutta, learned PP today is returned.