Haribushan Biswas vs State Of Tripura

S.G. Chattopadhyay, J

[1] This bail application has been filed by Sri Haribushan Biswas of Jirania seeking pre arrest bail under section 438 Cr.P.C in Jirania PS case No. 2021 JRN 019 registered under sections 21(b), 25 and 29, NDPS Act, 1985.

[2] The case was lodged on the basis of an FIR lodged by Sankar Das, SI of police of Jirania police station with the officer in charge of his police station alleging, inter alia, that on 05.05.2021 at about 07.10 O'clock in the evening he received an information from secret source that the petitioner along with one Litan Das were carrying heroin in their motor bike for selling the contraband to local youths and they were riding their bike towards Jirania Block Chowmuhani from Nowabadi which was bearing registration No. TR01-AH-6464 (black colour Pulsar-220 CC). Said information was recorded in the general diary of the police station vide Jirania PS GD entry No. 24 dated 05.05.2021 and the information was passed over to the jurisdictional SDPO seeking his permission for conducting search. Pursuant to the approval received from the jurisdictional SDPO, the police team laid a trap to apprehend the accused persons. Soon after the motor bike of the accused was noticed the police, they signaled the vehicle to stop but the rider as well as the pillion rider jumped from their bike and fled away in the darkness of the night. The bike was recovered and during search 12.800 gram heroin in several packets were recovered from the bike and the contraband was formally seized in presence of the witnesses. On the basis of the said information, case was registered under sections 21(b), 25 and 29, NDPS Act against accused Litan Das and Haribushan Biswas.

[3] Apprehending arrest, petitioner Haribushan Biswas has filed this bail application seeking pre arrest bail.

[4] Heard Mr. S. Sarkar, learned senior advocate appearing along with Ms. N. Debbarma, learned advocate for the petitioner. It is submitted by Mr. Sarkar, learned senior advocate that the petitioner has fallen victim to a conspiracy. Counsel has relied on the FIR of Jirania PS case No. 2019 JRN 67 dated 04.08.2019 in which the daughter of the petitioner lodged a complaint against Goutam Banik and Jayanta Karmakar who are the seizure witnesses in the present case and in the petition. Counsel, therefore, submits that as a result of their enmity towards the present petitioner said Jayanta Karmakar and Goutam Banik has joined the investigating agency and signed the seizure list as witness to facilitate the conspiracy against the present petitioner. Counsel submits that there is no iota of evidence against the present petitioner. No contraband was recovered and seized from his possession. He was not even spotted by the investigating agency at the time of alleged recovery of the contraband. Even the bike which was seized by police has no connection with the petitioner. Learned senior counsel, therefore, submits that in absence of the slightest evidence against the petitioner, he cannot be arrested and detained in custody. Learned senior counsel has relied on a decision of this court in AB No. 58 of 2021 in which bail was granted to the petitioner on the ground that nothing was recovered from the possession of the accused. It is also contended by Mr. Sarkar, learned senior advocate that since the contraband seized from the possession of the accused is lesser than commercial quantity, the embargo under section 37 of the NDPS Act with regard to bail shall not apply in this case. On these grounds, Mr. Sarkar, learned senior counsel urges the court for granting bail to the petitioner.

[5] Mr. R. Datta, learned P.P vehemently opposes the bail application. Learned P.P refers to the various police statements of the witnesses as well as the CDR available in the case diary. It is submitted by Mr. Datta, learned P.P that the accused petitioner is pursuing the occupation of drug peddling for a quite long period of time and the persons who have purchased heroin from him and later got admitted in hospital for treatment have made statements to police against the petitioner. It is submitted by Mr. Datta, learned P.P. that the CDR would reveal that the accused had telephonic conversation with one of the accused of this case for more than 100 times within a short duration which supports the prosecution case that they are collaborators of each other in the business of drug peddling. Learned P.P submits that in view of incriminating materials available on record, he does not deserve pre arrest bail. Learned P.P, therefore, wants the court to reject his bail application.

[6] I have gone through the prosecution papers including the updated case diary. Considered the submissions of learned counsel representing the parties. A detailed exposition of the materials available in the case diary would not be appropriate at this stage. It appears from the case diary that most of the witnesses whose police statements have been recorded under section 161 Cr.P.C have asserted that accused is engaged in drug peddling over a long period of time. Said witnesses have also stated that they had seen him selling drugs to the young people of their locality. Even though no contraband was recovered from his physical possession, in view of the materials available on record, his involvement in the commission of the alleged offence cannot be ruled out. Going by the allegations made in the FIR and the incriminating materials gathered during investigation, it can be held that a prima facie case is made out against the accused. Seized contraband involves commercial quantity. Therefore, restrictions of section 37 of NDPS Act with regard to bail will have application in the case. Considering the entire facts and circumstances, this court is of the view that release of the accused on anticipatory bail at this stage is likely to impair a full and fair investigation of the case. His bail application, therefore, stands rejected.

In terms of the above, the bail petition stands disposed of.

Return the case diary to Mr. R. Datta, learned P.P.