Goutam Nandi vs State Of Tripura

S.G. Chattopadhyay, J

[1] This bail application has been filed under section 438 Cr.P.C for granting pre arrest bail to Goutam Nandi who is the FIR named accused in PR Bari PS case No. 2021 PRB 040 under sections 20(b)(ii)(C), 25 and 29 of the NDPS Ac, 1985.

[2] Allegation against him is that on the basis of a secret information, police conducted raid in his house and recovered 30kg dried ganja which was kept concealed in the bathroom of his dwelling hut. SI Jaynal Hossain of PR Bari police station lodged a suo motu FIR with the officer in charge of his police station on 23.08.2021 and on the basis of the said FIR, the case was registered and investigation was taken up.

[3] Apprehending arrest, the petitioner has approached this court seeking pre arrest bail by filing this petition under section 438 Cr.P.C.

[4] Heard Mr. J. Bhattacharjee, learned advocate appearing along with Mr. S. Ghosh, learned advocate for the petitioner. Also heard Mr. R. Datta, learned P.P. appearing along with Mr. S. Ghosh, learned Addl. P.P. for the State respondent.

[5] Counsel appearing for the petitioner submits that there is no proof that the said contraband was seized from the house of the accused because police did not find the accused at home when the alleged search and recovery was made. Counsel refers to the seizure list and submits that even though the house inmates of the accused was present in the house, signature of none of those house inmates was obtained in the seizure list. Counsel contends that the accused cannot be kept in custody relying on a seizure list which has been manufactured by police. It is also contended by Mr. Bhattacharjee, learned counsel that in the FIR itself the complainant stated that the seized item was suspected to be ganja which is yet to be confirmed through forensic test. Therefore, accused cannot be arrested and detained for possession of ganja until the seized substances is confirmed to be ganja. It is also contended by the counsel of the petitioner that petitioner is an old man and suffering from various skin infections which he is likely to spread among the other jail inmates, if he is arrested and put to jail. Mr. Bhattacharjee, learned counsel in support of his contention has relied on a decision dated 24.09.2021 of the Calcutta High Court in CRM 3059 of 2021 and contends that the High Court has decided that when there is no recovery from the petitioner, restrictions in section 37 of the NDPS Act will not apply in the case. Mr. Bhattacharjee, counsel, therefore, urges the court for granting bail to the petitioner.

[6] Mr. R. Datta, learned P.P. on the other hand opposes the bail application on the ground that commercial quantity of contraband was recovered from the house of the accused and the statements of the witnesses recorded during investigation support the charges against the petitioner that he stored dried ganja in his house which was recovered by police after conducting raid in his house in presence of his house inmates. Counsel submits that the accused is a drug peddler whose bail at this stage will obstruct a full and fair investigation of the case. Learned P.P., therefore, urges the court for rejecting the application.

[7] Perused the entire record including the updated case diary submitted by the prosecution. Considered the submissions made at the bar. It appears from the prosecution papers that next door neighbours of the accused have been examined by the IO and their police statements under section 161 Cr.P.C have been recorded. One of the witness has stated that he identified the house of the accused to police and during his presence police conducted raid in the house of the accused and recovered dried ganja from the bathroom of his dwelling hut in two sacks. Other witnesses have also given similar statement. According to the prosecution, 30kg dried ganja was recovered from the dwelling hut of the accused and the same has been sent to the State Forensic Science Laboratory in sealed packets for confirmation about the nature of the contraband. The quantity is no doubt commercial quantity and therefore the rigors of section 37 of the NDPS Act with regard to bail will apply in this case unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. Since, there are sufficient incriminating materials against the accused making out a prima facie case against him, the court cannot come to such conclusion to overcome the embargo of section 37 of the NDPS Act. In the Calcutta High Court Judgment relied on by learned counsel of the petitioner, it has been decided that section 37 of the NDPS Act will not apply when there is no recovery at all. In the present case, commercial quantity contraband was recovered from the house of the petitioner. Therefore, petitioner cannot derive any benefit from the said judgment. Since a prima facie case is made out against the petitioner, immunity from arrest and detention under section 438 Cr.P.C cannot be granted to the petitioner in this case.

[8] Having observed thus, the bail application stands rejected and the matter is disposed of. Return the case diary to Mr. R. Datta, learned P.P.