Tripura High Court
Smt. Jonaki Deb On Behalf Of Accused ... vs The State Of Tripura on 4 August, 2021
Equivalent citations: AIRONLINE 2021 TRI 422
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
Page - 1 of 11
HIGH COURT OF TRIPURA
AGARTALA
B.A No. 53 of 2021
Smt. Jonaki Deb on behalf of accused person Sri Bhaskar Rudra
----- Petitioner(s)
Versus
The State of Tripura
-----Respondent(s)
For Petitioner(s) : Mr. P.K. Biswas, Senior Advocate.
Mr. P. Majumder, Advocate.
For Respondent(s) : Mr. R. Datta, Public Prosecutor.
B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
ORDER
04/08/2021 This case is taken up through virtual mode of hearing. Smt. Jonaki Deb who is the wife of the accused has filed this application under section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C for short) for release of her husband on bail who has been arrested and put to jail on 07.07.2021 in West Agartala PS case No. 205 of 2020 for offence punishable under Sections 22(c) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act hereunder).
Page - 2 of 11 [2] Heard Mr. P.K. Biswas, learned senior advocate appearing for the petitioner along with Mr. P Majumder, advocate. Also heard Mr. R. Datta, learned P.P representing the State respondent.
[3] The factual context of the case is as under:
On the tip of information received from a secret source, Sri Pranab Sengupta, Inspector of Police accompanied by his senior colleagues of the State Anti Narcotics Cell including the Additional Superintendent of police and Deputy Superintendent of police spotted accused Sridam Sen at Joynagar while he was riding his motor bike bearing registration No. TR-03-E-5956 on 30.11.2020. After detaining the said accused they carried out a search of his entire body and recovered the following contraband from his possession:
(i) Total 7200 Spsphen+ capsule of batch No. DTGC-102 (wrapped in 5 newspaper packets. Each packet containing 1440 capsules.
(ii) Total 720 SPAS-TOXY-Plus capsule of batch No.-CBC-029R/20 wrapped in a newspaper packet.
(iii) 16 Nos. Spsphen + capsule of batch No. DTGC-102 and one bottle Dialex-DC cough syrup recovered from inside the seat cover of Hero "Achiever"
bearing registration No. TR-03-E-5956.
Page - 3 of 11 [4] Besides recovery of the said contraband, Indian Currency of a sum of Rs.53,000/- in different denominations, a lava mobile set and one motor bike were also seized from the possession of said accused Sridam Sen by police. [5] After recovery and seizure of the said contraband, a suo motu FIR was lodged by Inspector Pranab Sengupta with the Officer in Charge of West Agartala police station and accused Sridam Sen was handed over to the In charge of Battala police outpost under whose jurisdiction the accused was spotted and the said search, recovery and seizure was made. Investigation of the case was initially endorsed to Ranjit Sarkar, Sub Inspector of police. Later the investigating officer was changed and the investigation was entrusted to Poushdhan Rupini, Inspector of police. In the course of his investigation, the seized contraband was tested by the Government analyst in State Drugs Testing Laboratory whose report is as under:
"(i) In respect of SPS-Phen + capsules gives positive for Dicyclomine Hydrochloride and Acetaminophen as per I.P. (Dicyclomine Hydrochloride I.P. 10mg.
Tramadol Hydrochloride I.P. 50 mg, Acetaminophen I.P 325 mg. Excipients q.s)
(ii) In respect of SPAS-ROXY PLUS capsules gives positive for Dicyclomine Hydrochloride, Tramadol Hydrochloride and Acetaminophen as per I.P. (Dicyclomine Hydrochloride I.P. 10 mg. Tramadol Hydrochloride I.P. 50 mg, Acetaminophen I.P 325 mg, Excipients q.s)
(iii) In respect of DIALEX-DC Dry cough Formula given positive for Codeine Phosphate. (Codeine Page - 4 of 11 Phosphate I.P. 10 mg, Chlorpheniramine Maleate I.P. 4 mg, in a pleasantly flavoured syrup base q.s)."
[6] Police investigation revealed that present petitioner Bhaskar Rudra who was also known as Bappa @ "K-2" was the kingpin who used to maintain the chain of supply of Narcotic Drugs and Psychotropic Substances to the distributors and individual consumers through the members of the gang. The investigation also revealed that accused Sridam Sen who was spotted and arrested at Joynagar while carrying the said contraband actually received such contraband from the present petitioner for local distribution. [7] Appearing for the petitioner, Mr. P.K. Biswas, learned senior advocate along with Mr. P. Majumder, advocate submits that the petitioner is completely innocent who has been falsely implicated in the case. It is contended by Mr. Biswas, learned senior advocate that present petitioner was not even FIR named. The facts would reveal that he was arrested long after the release of said Sridam Sen from custody. Therefore, allegation of his nexus with accused Sridam Sen is entirely baseless. It is also contended by learned senior advocate that father of the accused is a licensed dealer of medicine who runs a medicine shop at Agartala and the petitioner also works with his father in the said medicine shop. According to Mr. Biswas, learned senior advocate, police carried out a search operation in the said medicine shop of the petitioner and no contraband could be recovered from their shop. In support of his contention Mr. Biswas, learned senior advocate has relied on the decision of this court in B.A No. 94 of 2020 Page - 5 of 11 [Rita Das (Saha) on behalf of accused Ramu Saha Vs. The State of Tripura] decided on 14.09.2020. In the said case "Tramadol" was recovered and seized from the medicine shop of the accused and it was observed by this court as follows:
"To summarize, I may come to a conclusion that though the drug "Tramadol" has been included in the list of the schedule of narcotic drug, but the Central Government has not issued any such notification regarding banning/stopping of manufacturing or selling or using the said drug. It is still included in the list of schedule of H1 Drug under the provision of Drugs and Cosmetic Rules, 1945."
Even after recovery of Tramadol, accused was released on bail by this court.
[8] It is contended by Mr. Biswas, learned senior advocate that admittedly nothing was recovered from the medicine shop of the petitioner after the shop was thoroughly searched by the investigating agency and though even if „Tramadol" was and seized, it would not have amounted to contravention any of the provisions of NDPS Act in view of the said order of this court. Further submission of Mr. Biswas, learned senior advocate is that restrictions under section 37, NDPS Act with regard to bail does not apply to this case because prosecution has not been able to adduce the slightest incriminating material against the accused and the court has every reason to believe that the accused has not been guilty of the offence under which he has been booked. In support of his Page - 6 of 11 contention Mr. Biswas, learned senior advocate has relied on the decision of the Apex Court in Union of India Vs. Shiv Shanker Kesari reported in (2007) 7 SCC 798 wherein the Apex Court has held as under.
"10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315).
11. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
12. Additionally, the court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion."
For the reasons aforesaid, Mr. Biswas, learned senior advocate urges the court for grant of bail to the accused petitioner. [9] Mr. R. Datta, learned P.P vehemently opposes the bail application on several grounds. According to Mr. Datta, learned P.P, in the course of investigation police collected the call detail records (CDR) between the present Page - 7 of 11 petitioner and accused Sridam Sen which would indicate that they had a close association which prima facie support their nexus and involvement in the smuggling of Narcotic drugs. It is contended by Mr. Datta, learned P.P that "Tramadol" is a notified Narcotic drug within the meaning of the NDPS Act. In support of his contention Mr. Datta, learned P.P has produced the relevant notifications before the court. It is also contended by learned P.P that admittedly the accused petitioner used to sell "Tramadol" from their medicine shop and such admission has been made in paragraph (vii) of the petition filed on his behalf by his wife Smt. Jonaki Deb on affidavit. In support of his contention that "Tramadol" is a Narcotic drug for the purpose of NDPS Act, Mr. Datta, learned P.P has also relied on the decision of this court in B.A. No. 121 of 2020 (Uttam Bhattacharjee Vs. The State of Tripura) which has been decided by this court on 18.01.2020 observing as under:
"[8] Initially, there was a confusion whether the seized materials fall within the category of narcotic substance, but from perusal of the schedule of psychotropic substances in the NDPS Act, it appears the seized material namely tramadol has been included in the said schedule against the serial no. 110-Y. The said entry was made on 26.04.2018. The concerned notification is also available in the case diary."
[10] Learned P.P further contends that the alleged contravention involves commercial quantity and as such restrictions under section 37 of the NDPS Act clearly applies to this court which disentitles the accused to bail. According to learned P.P, parameters for grant of bail in NDPS case has been laid Page - 8 of 11 down by the Apex Court in several decisions and in support of his contention Mr. Datta, learned P.P has relied on the decision of the Apex Court in State of Kerala & Ors. Vs. Rajesh & Ors. reported in (2020) 12 SCC 122 wherein the Apex Court has held as under:
"18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh [(1999) 9 SCC 429], it has been elaborated as under:-
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes Page - 9 of 11 and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
It is also contended on behalf of the prosecution that the police statements of the witnesses recorded by the investigating agency has made it absolutely clear that the present petitioner is the kingpin who operates a gang of drug peddlers and therefore his release on bail is likely to impair the whole investigation of the case. Learned P.P, therefore, urges the court for rejection of the bail application.
Page - 10 of 11 [11] Perused the entire case record including the updated case diary. Considered the submissions of learned counsel appearing for the parties. I have also gone through the judgments which have been relied on by the learned counsel of the parties.
[12] There is no doubt that the charges brought against the present petitioner are serious. It would not be appropriate to discuss the materials available in the case diary in detail at this stage. The facts of the two cases relied on by learned counsel of the petitioner are clearly distinguishable from the facts of the present case and as such the petitioner cannot derive any benefit from those judgments. There is merit in the submission of the learned P.P that release of the accused on bail at this stage is likely to spoil the investigation of the case. On the basis of the materials available before the court, nexus between the accused petitioner Bhaskar Rudra and accused Sridam Sen cannot be ruled out. Allegedly, the petitioner used to supply contraband drugs to other traders and even to the consumers. After arrest of accused Sridam Sen, the investigating agency has collected materials which goes to show that the present petitioner supplied drugs to accused Sridam Sen and to a lot of other people trading in narcotic drugs and psychotropic substances.
[13] Having gone through all the materials placed before this court, I am of the view that prosecution has made out a good prima facie case against the petitioner.
Page - 11 of 11 [14] In view of the nature of the offence, role played by the petitioner in the commission of said offence, likelihood of his influencing the course of investigation in case of his release on bail and after consideration of all other settled parameters for grant of bail laid down by the Apex Court in the judgments cited to supra, this court is of the view accused Bhaskar Rudra does not deserve bail at this stage.
Resultantly, his bail application stands rejected and disposed of. Return the case diary to Mr. R. Datta, learned P.P. JUDGE Rudradeep