Mousumi Banik vs State Of Tripura

Heard Mr. B. Deb, learned counsel appearing for the applicant who represents the accused as well as Mr. S. Debnath, learned Addl. PP appearing for the state. Mr. S. Debnath, learned Addl. PP has produced the case diary in terms of the order dated 20.12.2019.

This is an application under Section 439 of the Cr.PC for granting bail to the accused-person namely, Bijoy Paul represented by the applicant in connection with Bishramganj PS Case No.2016BRG034 corresponding to Special (NDPS) 27 of 2016 under Section 22(c) of the NDPS Act and Section 3 of the Prevention of Damage to Public Property Act and under Section 25 and 29 of the NDPS Act.

This case was registered on 13.10.2016 and taken up for investigation. The complaint has been filed by one Inspector of Police, namely Paritosh Das alleging that on 13.10.2016 in the early morning at about 0330 hours, he along with Tapash Kanti Paul DySP (HQrs) and the police constables, namely Subrata Deb and Sukhen Bhowmik were performing the night patrol. When they reached Puskarbari on NH-44A under Bishramganj PS, they saw two Bolero Pick-up vehicles proceeding towards Bishramganj with high speed. They tried to intercept but the drivers did not stop rather speeded up their vehicle to flee away which caused suspicion regarding their load.

With the help of the Taibandal Outpost, they managed to stop on Bolero Pick-up vehicle bearing registration No.TR 01S 1886 near Taibandal in an isolated area surrounded by paddy fields on both the sides. At the time of stopping, the said vehicle hit the police Gypsy vehicle bearing registration No. TR 01 A 1174 of Taibandal Outpost. The driver managed to slip into the darkness and he could not be identified or apprehended. When the vehicle was searched, it has been complained that cough syrup bottles suspected to be contraband narcotic items like phensedyl were found. No person came forward to claim the ownership of the said vehicle. They seized (1) Bolero Pick-up FB bearing registration No. TR 01S 1886, (2) one key of Bolero Pick-up FB bearing registration No.TR 01S 1886 and 5330. Phensedyle like linctus, [batch No. PHB 6281-2460 No. PHB 6253-300 No. PHB 6286-970 No. PHB 6258-670 and No.PHB 6265-900] manufactured by Abbott Health Care Pvt Ltd.

They drew the sample from each batch number for the chemical analysis in presence of Executive Magistrate and independent witnesses. Later on, the complaint was filed.

Mr. Deb, learned counsel appearing for the accused-person has submitted that even though the case was registered on 13.10.2016, the accused-person was shown arrested only on 18.10.2019 when he was arrested in connection with Sonamura PS case No. SNM138 under Section 20(b)(ii)(c)/28/29 of NDPS Act. Mr. Deb, learned counsel has questioned why the accused-person who a businessman dealing in spare parts in Bishalgar market, was not arrested by the police so long, if he was really involved in the case. For the detention order dated 06.07.2019 issued under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 the accused-person is still in custody. So far the offence alleged to have been committed under Prevention of Damage to Public Property Act, there is no material to demonstrate that the accused-person is involved in the commission. Even there is no witness that at the time when the vehicle dashed the police vehicle, the accused was driving the said Pick-up vehicle.

Mr. Debnath, learned Addl. PP has produced the case dairy and marked some statements which, according to the state, are relevant for consideration of this petition. This court has gone through each of the statements as referred and beyond. Mr. Ganesh Chandra Das (SI) who is now in charge of the investigation is present in person in this court. He has made a clear statement that the charge-sheet will be filed in course of this month. The statement of the owner of the vehicle has been relied hugely by Mr. Debnath, learned Addl. PP and for that reason, the statement has been keenly scrutinized. It appears that the accused-person used to hire his vehicle for his own use. In the year 2016, when he was admitted in the Apollo Hospital in Chennai, he got the information that his vehicle met with an accident.

He has unambiguously stated to the police that he does not know who was driving the vehicle on that day. He has also not disclosed that from who, the accused had hired that vehicle. He has made some general statements that the accused was involved in trafficking of the narcotic substances. Again, the source of knowledge is absent. Reliance has been made on the statements of several persons, available pages 162 to 168 of the case diary. The court will not disclose the names of those persons at this stage. On verification of the statements, it appears that all those witnesses have themselves admitted that they were purportedly collaborating with the accused in transacting the alleged offence. The police, without making them accused in the case, has made them witnesses to extract statement against the accused person. Having noticed these, this court is constrained to observe that, this is not fair investigation and the police is acting contrary to law. It is well established what will be the value of such evidence in the trial. Mr. Debnath, learned Addl. PP has stiffly resisted the prayer of bail.

The allegations against the accused person are under 22(c) which speaks of the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

The contravention was recorded initially under Section 22(c) of the NDPS Act. Section 22 (c) is in respect of harsher sentence based on the quantity of the narcotic substance. However, as already stated, the offence alleged to have been committed under Section 3 of the Prevention of Damage to Public Property Act, has not, in any manner, encompassed the accused-person. There is no evidence in the case diary which according to the investigation has reached to its final stage. Later on two charging sections were added. Those are Sections 25 and 29 of the NDPS Act. Section 29 is the punishment for abetment in the criminal conspiracy and Section 25 is the punishment for allowing premises etc. to be used for commission of an offence.

In the present case, after scrutinizing the case diary meaning, all the materials placed in the case diary, this court could not find out that from the premises of the accused-person or from the vehicle owned by him, any narcotic material has been recovered. So far Section 29 is concerned, the criminal conspiracy requires at least another person. In the FIR, no other person has been named, but the persons who would have been alleged to be privy conspiracy, are all witnesses in this case.

Having observed thus and noted that the accused-person in custody, this court is of the view that prima-facie it has been made out that possibility of his conviction in the matter is bleak.

Hence, it is directed that the accused-person, namely Bijoy Paul shall be released on bail furnishing a bail bond of Rupees one lakh supported by the two sureties of the like amount to the satisfaction of the Special Court where the case No. SPL (NDPS) 27 of 2016 is pending, subject to condition that if the accused is released from the said detention as it has been stated he is still in the custody under the operation of the detention order, he shall not leave his ordinary place of residence without prior permission from the Special Court and he shall not try to induce or compel any persons/having seized of any material relating to the investigation. If the accused person finds any difficulty, he may approach the Special Judge to relax the condition that he shall not leave his ordinary place of residence without prior permission of the Special court.

Accordingly, this application stands allowed and disposed of.

The case diary as produced stands returned.