Pushpak Modi vs State of West Bengal

Indrajit Chatterjee, J.—This is an application u/s 439 of the Cr.P.C. as filed by the present petitioner Pushpak Modi who is in custody in connection with Lalgola PS case No. 224 dated April 13, 2013 now pending before the Special Court N.D.P.S, Act, Murshidabad at Berhmpore in NDPS Case No. 47 of 2013 under Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. This matter has been assigned to this Bench as per order of the Hon''ble Acting Chief Justice, High Court, Calcutta.

The prosecution case in nutshell can be stated in brief thus that admittedly the petitioner is in custody under Sections 21(c)/29 of the NDPS Act since 18th April, 2013 and the prayer for bail of this present petitioner was refused by the Ld. Special Judge, Murshidabad on 29th August, 2013. The first incident took placed on 13th of April, 2013 which happened at Krishnapur Hospital More, P.S. Lalgola and on a tip off the de facto complainant of this case, i.e., SI Sadhan Kumar Ghosh of Lalgola PS went to the house of Golam Mortuja @ Selal (one accused in this Special Court Case) after informing the matter to his superior that ''Heroin'' was being manufactured for selling the same to others and on that date from that house five persons were arrested namely, Golam Mortuja, Sentu Sk. Israfil Sk. @ Fakir, Sabirul Islam @ Pinu and Md. Ajijul Rahman alongwith 1kg 490 gms. of Heroin, 14 kg 980 gms. of ''Cod Heroin'' alongwith other items. Those were seized as per seizure list and this Lalgola PS case was started and was registered at about 19.25 hrs under Sections 21(c)/29 NDPS Act, 1985.

During the course of investigation three other persons were arrested including one Md. Ayub Lodhi of 18E, Dr. Biresh Guha Street, P.S. Kariya, Calcutta-17 who was arrested from Kolkata and 10 kg of ''Cod Heroin'' along with other items were recovered from his possession. This ''Cod Heroin'' was, proved to be not coming within the purview of the NDPS Act and ultimately Md. Ayub Lodhi was released on bail.

It is further case of the prosecution that as per the statement of this Md. Ayub Lodhi (when he was in police custody) a raid was conducted in the shop room of the petitioner located at 8, Portuguese Church Street, Kolkata-700001 on 18th April, 2013 at 18.35 hrs and 4 and 1/2 kgs of ''Cod Heroin'' tested positive as "Amphetamine" through Drugs detection kit were seized and as such he was produced before the Ld. Special Judge, Murshidabad on 19.4.2013 and Sections 21(c)/29 of the NDPS Act were clamped against this accused/petitioner. The samples taken were forwarded to the FSL Kolkata and those were proved to be positive as regards NDPS Act is concerned.

This Court is not unmindful of the fact that one Complaint Case No. 627 of 2013 was filed before the Additional Chief Metropolitan Magistrate, Calcutta u/s 58 of the NDPS Act read with Sections 166/167/193 etc., of the IPC against one Samir Kumar Dutta SI of Lalgola PS, one Swapan Kumar Maitra SI of Burrabazar PS and Md. Ayub Lodhi. The Ld. ACMM asked for enquiry report u/s. 202 of the Cr.P.C. and the enquiry report revealed that the two witnesses to the seizure were not found in their addresses and their addresses were found to be fake. The report further revealed that those two seizure list witnesses were passers-by. The Ld. ACMM, however (very naturally), rejected the said complaint with a direction to that petitioner to pray for enquiry u/s. 340 of the Cr.P.C. before the Ld. Trial Court and the matter must be under process as application has been filed by the present petitioner on 29.8.2013 under Sections 195 and 340 of Cr.P.C.

It is main argument of Mr. Basu that as Md. Ayub has been released on bail and the allegation against him has been proved to be baseless the statement made by Md. Ayub and subsequent alleged recovery from the possession of this accused/petitioner is non est and baseless. It is his submission that the present accused should not have been tagged with that Lalgola PS case and his production before the Special Court at Murshidabad under the NDPS Act was also not as per law and as such illegal.

It was his further contention that if the seizure witnesses who were just passers-by as per report of the police conducted u/s 202 of the Cr.P.C. then the story of seizure is a myth and the entire allegation against this accused will automatically collapse. Thus, as per Mr. Basu the chain which started in Lalgola has been cut off with the granting of bail to Md. Ayub. It was also his submission that case could have been registered within the jurisdiction of Kolkata Police if the alleged story of recovery is believable. He further contended that the sample forwarded to the chemical expert was not authenticated or authorized by the Judge Special Court who was holding the power of a Magistrate also. Thus, it was the submission of Mr. Basu that on all counts this accused may be favoured with an order of bail u/s. 439 of the Cr.P.C.

The prayer for bail was opposed by the Ld. Public Prosecutor who submitted that the story of recovery is very much believable as the seizure was made in presence of one Assistant Commissioner of Police, Kolkata and was done by one police officer of Lalgola PS and their evidence cannot be disbelieved simply because they are police men. Thus he contended that at least such police officers can prove the recovery against this accused.

It was also his submission before us by taking us to the CD that the samples were duly authenticated by the Ld. Trial Court both in cases of Md. Ayub Lodhi and the present accused and the claim of the defence on this count is not tenable. It was also his submission that the Investigating Agency rightly tagged this accused in that Lalgola PS case as that is the main tree of this investigation and the branches are the subsequent recoveries which cannot be cut. It was his further submission that this is one heinous offence and it will affect the general interest of the society and as such the prayer for bail may be rejected.

We have gone through the Case Diary including the seizure list in respect of the seizure made from the shop room of this accused/petitioner. We have also perused the memo of application and supplementary affidavit including the annexure thereon we have also taken into consideration the fact that the case was registered at Lalgola PS regarding violation of Sections 21(c)/29 of the N.D.P.S. Act. We have also taken into consideration the report of the FSL regarding the existence of Psychotropic Substance in the articles seized from the shop room of this accused/petitioner. The quantity recovered is huge and it must be for commercial purpose. On close scrutiny of the memo vide which the sample was forwarded to the FSL we are also satisfied that the Ld. Special Judge duly authenticated the item so forwarded to the FSL. This is the argument of the defence that the sample was not authenticated has no leg to stand upon.

Regarding the main argument of the defence that as Md. Ayub Lodhi has been granted bail and the allegation against him has not been substantiated as per report of the FSL the case against this petitioner will also go as practically the statement of accused Md. Ayub will not apply against the present petitioner. We are to say that this argument was not enough to convince us. It is impossible to concur with the defence that simply because Md. Ayub has been released on bail there is nothing incriminating against this accused and the story of seizure goes.

The offence under those sections of the N.D.P.S is being investigated by Lalgola Police and there is nothing wrong as to the arrest of this accused/petitioner with the help of the Kolkata police from Kolkata. It is true that two seizure list witnesses could not be traced out but for this reason the entire seizure from this accused cannot be given a go bye. We are not unmindful of the fact that seizure was made by one police officer of Lalgola PS in presence of one police officer of Kolkata and as such their evidence will also be taken care of by the Ld. Trial Court at the time of trial and at least at present we can very much consider the seizure to be prima facie true.

We have already told that the seized heroin has been tested to be positively the FSL and as such there is strong case against this accused/petitioner. This is a social offence which is destroying a portion of our youth population and people like this accused/petitioner is at the helm of this illegal trade. Thus considering every aspect of this case we do not consider it to be a fit case to release the petitioner on bail. The prayer for bail stands rejected. Return back the CD.