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Judgment
This pre-arrest bail application under Section 482 of BNSS read with Section 37 of NDPS Act is filed to grant pre-arrest bail to the accused-applicant in connection with Amtali P.S. Case No.27 of 2026 registered under Section 20(b)(ii)(c), 25, 27(A), 29 of NDPS Act.
Heard Learned Counsel Mr. P. Sahu appearing on behalf of the accused-applicant and also heard Learned Addl. P.P. appearing on behalf of the State-respondent.
Taking part in the hearing Learned Counsel drawn the attention of the Court that in this case no contraband item was directly recovered from the possession of the accused-applicant. According to Learned Counsel the accused is also not FIR named just on the basis of statement of co-accused he has been arrayed as an accused and the I.O. on conclusion of the investigation has submitted chargesheet against him and another accused Prasenjit Debnath, showing this present applicant-accused as absconder. He further submitted that on the basis of statement of co-accused there is no scope to refuse bail to the present applicant-accused. He further drawn the attention of the Court referring the statement of witnesses namely Krishna Nanda Saha and one Chinku Nama and referring the statement of those witnesses he further submitted that the I.O. in course of investigation save and except the statements of aforesaid witnesses could not collect any other materials showing implication of the accused-applicant with the alleged crime and furthermore referring the chargesheet submitted by I.O. he submitted that in the chargesheet also the I.O. stated that during interrogation co-accused Prasenjit Debnath disclosed his name to be involved with the alleged crime and accordingly he has been arrayed as accused in this case. Further referring the CDR analysis he submitted that in view of the judgment of Hon’ble Supreme Court of India on the basis of CDR reports there is scope to deny bail to an accused. So in summing up he urged for granting pre-arrest bail to the accused-applicant in any condition.
In support of his contention Learned Counsel Mr. Sahu relied upon one judgment of the Supreme Court of India in Srikant Upadhyay & Ors. vs. State of Bihar & Anr. reported in 2024 2 ACR 716 wherein in para-24 e it has been specifically observed by the Hon’ble Supreme Court that even if the warrant of arrest is issued in this case also there is no total bar to grant pre-arrest bail in exceptional cases. In support of his contention he also relied upon another order dated 12.11.2024 of the Hon’ble Supreme Court of India in Criminal Appeal No.4564 of 2024 arising out of SLP (Crl) No.13123 of 2024 wherein the Hon’ble Apex Court also in para-8 observed that if the warrant is issued still there is no bar to grant pre-arrest bail to the accused.
Further Learned Counsel Mr. Sahu referred order dated 16.03.2026 passed by this Court in BA No.43 of 2026 and also order dated 10.04.2026 passed by this Court in BA No.69 of 2026. Referring those orders passed by this Court he also urged before this Court to apply the principle of parity in this present petition also.
On the other hand, Learned Addl. P.P. appearing on behalf of the State-respondent drawn the attention of the Court referring the order dated 20.07.2022 passed by the Hon’ble Supreme Court in State of Haryana v. Samarth Kumar reported in 2022 SCC OnLine SC 2087, wherein in para Nos.5, 6 and 9, Hon’ble the Apex Court observed as under:
“5.But, it is contended by the learned Additional Advocate General appearing on behalf of the State of Haryana that on the basis of the anticipatory bail granted to the respondents, the Special Court was constrained to grant regular bail even to the main accused-Dinesh Kumar and he jumped bail. Fortunately, the main accused-Dinesh Kumar has again been apprehended. According to the learned Additional Advocate General, the respondent in the second of these appeals is also a habitual offender.
6.Learned counsel appearing on behalf of the respondent in the first of these Appeals contends that the State is guilty of suppression of the vital fact that the respondent was granted regular bail after the charge-sheet was filed and that therefore, nothing survives in the appeal. But, we do not agree.
9.To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.”
In addition to that he also relied upon another judgment of Hon’ble Supreme Court in In Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan reported in (2021) 10 SCC 100, wherein in para Nos.27, 28, 29 and 34, Hon’ble the Apex Court observed as under:
“27.We have referred to the above precedents to reiterate the governing principles. At this stage of the proceedings, it needs only to be clarified that the trial is to take place this Court (sic) where evidence will be adduced.
28.As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik [Union of India v. Rattan Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri) 831] , a two-Judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the “possession” of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non-application of mind by the High Court.
29.In line with the decision of this Court in Rattan Mallik [Union of India v. Rattan Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri) 831] , we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.
34.The following circumstances are crucial to assessing whether the High Court has correctly evaluated the application for bail, having regard to the provisions of Section 37:
34.1.The respondent was travelling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co-accused.
34.2.The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him.
34.3.The quantity of contraband found in the vehicle is of a commercial quantity.
34.4.The contraband was concealed in the vehicle in which the respondent was travelling with the co-accused.”
Referring the aforesaid citations Learned Addl. P.P. drawn the attention of the Court that considering the materials on record there is no scope to grant pre-arrest bail in this case. Further referring the CD he submitted that in this case at the time of interception of the principal accused three mobile sims were recovered and out of these three sims two stands in the name of the present accused-applicant and from the CDR analysis it is crystal clear that the present accused-applicant was also available to the same location where the vehicle was detained by the police for checking. Furthermore Learned Addl. P.P. submitted that in this case contraband item of commercial quantity was seized. So rigour of Section-37 of NDPS Act would apply and as such Learned Addl. P.P. finally urged for dismissal of the bail application.
Heard both the sides at length and perused the relevant prosecution papers and also the record of the Learned Trial Court. In this case by order dated 01.10.2026 Learned Special Judge, Court No.4, Agartala West Tripura has taken cognizance of offence against the present petitioner accused and another and on the same day the Learned Trial Court also issued warrant of arrest against the same accused-applicant on the ground that the I.O. on completion of investigation has laid chargesheet against him showing him as absconder.
In this case prosecution was set into motion on the basis of an FIR laid by one Ranabrata Ghosh on 28.03.2026 to O.C., Amtali Police Station alleging inter alia that on 27.03.2026 at about 2240 hours he along with staff were performing vehicle checking duty at Amtali PS rear Naka on Khayerpur Amtali bypass road that time he saw a vehicle bearing No.TR 07A 1834 (Bolero pickup white colour) which was coming in very high speed rashly and negligently from Khayerpur side. That time he made signal to stop the vehicle and after detention they found the driver was seated inside the vehicle and was driving the vehicle alone. Thereafter being asked by the police personnel he opened the door and came out and identified himself. That time they noticed that some packets wrapped with black colour polytene and sealed with light brown colour adhesive tape when smell of ganja was coming. Being interrogated he deposed that the said packets were containing dry ganja and thereafter the informant after observing all formalities found in total 578 kg. of ganja and seized the same and caused arrest of said Prasenjit Debnath and laid the complaint. Accordingly Amtali PS Case was registered and during investigation the I.O. recorded the statement of some witnesses and after completion of investigation laid chargesheet against said Prasenjit Debnath and the present accused-applicant showing him as absconder.
In the chargesheet it has been submitted by I.O. that during custodial interrogation accused Prasenjit Debnath disclosed that the present-applicant accused had arranged the Bolero pick up vehicle bearing No.TR-07A-1834 in his name and obtained his signatures on vehicle related documents provided him with a smartphone and SIM cards for communication and on 27.03.2026 engaged him transport the contraband on the promise of paying him approximately Rs.4,000-5,000 and the disclosure made by Prasenjit Debnath has been substantially corroborated during investigation and on analysis of the SDR and CDR and tower location of mobile numbers it was found that the mobile number 7630001690 and 9863364689 belongs to one Sagar Debnath and moreso, the statement of previous owner Bolero pick up bearing registration No.TR-07A-1834 and the statement of the mechanic who repaired the vehicle establishes that this present accused-applicant had arranged the repairing of the said vehicle and was instrumental in making it available for use in the commission of the offence and moreso, the recovery of 578 kgs. of commercial quantity of Cannabis confirmed by Forensic Science Laboratory and tower location analysis and the seizure of the mobile phones belonging to the present accused-applicant from the possession of Prasenjit Debnath clearly establishes and also the statement of previous owner and the mechanic clearly establishes the involvement of accused-applicant with the alleged crime.
From the record it appears that by order dated 01.10.2026 the case has further been posted for E/R before the Learned Trial Court on 16.11.2026 and by this time as per order dated 01.10.2026 warrant of arrest has been issued against him.
Now, after going through the relevant prosecution papers it appears that only evidence against the applicant-accused was the confessional statement of another co-accused Prasenjit Debnath and also the statement of two witnesses i.e. one is of the previous owner and another is the motor mechanic. From the statements of those witnesses it appears that at the time of procurement of vehicle and also at the time of repairing of the vehicle this present applicant also met the owner and also met the mechanic of the garage.
Admittedly, no contraband item was found directly from the possession of the present applicant-accused. The trial of this case has not yet been commenced. The only issue is that by this time warrant of arrest has been issued against him.
From the judgment of the Hon’ble Supreme Court of India referred by Learned Counsel for the applicant-accused it also appears that even if the warrant of arrest is issued in that case also there will be no bar to apply for pre-arrest bail. Considering the materials on record prima facie it cannot be said that the present applicant-accused is totally innocent.
From the charge-sheet submitted by I.O. it appears that in the charge-sheet nowhere it has been mentioned by I.O. for holding custody trial of the accused. But it has been submitted that the accused will abscond and may tamper the witnesses of the prosecution if he is released on bail. At the time of hearing, Learned Addl. P.P. save and except the statements of those independent witnesses i.e. Krishnanada Saha and Chinku Nama could not place any other materials against this present applicant-accused that he is directly involved with the alleged crime save and except the plea of CDR reports. Since, the charge-sheet is submitted, so it is desired that the present applicant-accused shall surrender himself before the Learned Trial Court to face trial. But since at this stage warrant of arrest has been issued against him and he has approached to this Court for granting pre-arrest bail. So, considering the materials on record I am inclined to consider his pre-arrest bail application till 16.11.2026 of his execution of bond of Rs.1,00,000/- (Rupees One Lakh) with two sureties of like amount to the satisfaction of the arresting authority with the following terms and conditions:-
That in the event of execution of bond before arresting authority the accused shall surrender before the Learned Trial Court on 16.11.2026 and pray for regular bail when the Learned Trial Court after considering the materials on record shall consider his application for bail.
That the accused shall not leave the jurisdiction of O/C of the concerned P.S. till his surrender before the Learned Trial Court.
That the accused shall not make any attempt to tamper evidence on record of the prosecution.
If on the next date the accused fails to surrender before the Learned Trial Court in that case his further right to remain on pre-arrest bail shall automatically be extinguished and he will lose his right to remain on pre-arrest bail. During that period also the applicant-accused shall appear before O/C of the concerned P.S. and as and when called for. Till next date of surrender i.e. upto 16.11.2026 the warrant of arrest against the applicant shall remain suspended.
With this observation, this pre-arrest bail application stands disposed of.
Send down the record to the Learned Trial Court along with a copy of this judgment/order.
Also a copy of this order be supplied to Learned Counsel for the applicant-accused for information and compliance.
Also a copy of this order be communicated to I.O. through Learned Addl. P.P. for information and necessary action.