Tripura High Court
Smt. Rinku Das vs The State Of Tripura on 7 February, 2019
Equivalent citations: AIRONLINE 2019 TRI 7
Author: Sanjay Karol
Bench: Sanjay Karol
Page - 1 of 15
HIGH COURT OF TRIPURA
AGARTALA
BA No.147/2018
Smt. Rinku Das, W/o Sri Gobinda Das, S/o Sri Swapan Das alias
Litan Das, resident of Village - Murabari, P.O & P.S. - Bishalgarh,
District - Sepahijala, Tripura.
---- Applicant.
On behalf of Sri Gobinda Das, S/o Sri Swapan Das alias Litan Das,
resident of Village - Murabari, P.O & P.S. - Bishalgarh, District -
Sepahijala, Tripura.
---- Accused.
Versus
The State of Tripura.
---- Respondent.
_B_E_F_O_R_E_ HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL For the applicant : Mr. Somik Deb, Advocate, Mr. Anujit Dey, Advocate.
For the respondent : Mr. B Choudhury, P.P., Mr. A Roy Barman, Addl. P. P., Mr. B Deb, Advocate, Mr. S Rahman, Advocate.
Date of hearing : 29.01.2019.
Date of judgment : 07.02.2019
Whether fit for reporting : Yes No
√
JUDGMENT & ORDER
The Apex Court in Satpal Singh Vs. State of Punjab reported in (2018) 13 SCC 813 reminded the "police and the Public Prosecutor that they need to show due diligence" and vigilance while dealing with the cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Unreservingly and unhesitantly, I must add, that such Page - 2 of 15 observation applies, with equal force, also to the Judges dealing with the cases under the said Act.
2. In the instant case, the approach adopted by the Court below in granting bail to the accused is against, in fact, contrary to the settled principles of law. Certain basic principles, fundamental in nature, stands flouted while passing such orders.
3. The principle for grant of bail under the Act stands fully settled. Starting from Narcotics Control Bureau Vs. Kishan Lal and Ors., (1991) 1 SCC 705; Union of India vs. Ram Samujh and another, (1999) 9 SCC 429; Collector of Customs, New Delhi vs. Ahmadalieva Nodira reported in (2004) 3 SCC 549; Sami Ullaha vs. Narcotic Central Bureau, (2008) 16 SCC 471; Union of India vs. Rattan Mallik alias Habul, (2009) 2 SCC 624 and most recently in Satpal Singh Vs. State of Punjab, (2018) 13 SCC 813 the Apex Court observed as under :
"3. Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to Page - 3 of 15 enter such a satisfaction. These limitations are in addition to those prescribed under Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail. It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court."
(emphasis supplied).
4. Even this Court vide judgment dated 23rd July, 2018, in BA No.58/2018 titled as Sri Asis Sarkar on behalf of accused Sri Sudhir Sarkar Vs. The State of Tripura has reiterated strict adherence of such provisions and principles. In fact, it took note of the precarious situation prevalent with regard to illegal cultivation, production, trafficking and use of the contraband substance within the State of Tripura. The entire State appears to be engulfed in the cultivation of cannabis with the help of drug smugglers and mafias. Now fertile agricultural land appears to be used for cultivating ganja a psychotropic substance.
5. Situation with regard to production, trafficking and use of the contravened substance is extremely alarming. In Case No.BA No.149/2018 titled as Sri Haricharan Biswas on behalf of accused Sri Krishna Kumar Vs. The State of Tripura this Court took note of information furnished by the Director General of Police, Tripura which is reproduced as under:
Page - 4 of 15 Statement on NDPS Cases for the year 2018 Quantity of drugs seized No. of charge sheet/final form submitted within 90 days Cases pending for investigation beyond 90 days Cases pending for investigation within 90 days No. of persons arrested from outside the state No. of persons arrested from inside the state No. of charge sheet submitted after 90 days No. of persons arrested No. of persons on bail No. of cases regd.
District/unit
Cannabis Cough Heroin Tablets
(in KGs) syrup (in (nos)
(in gram)
bottles)
North 70 138 89 114 24 0 2 47 21 9720.564 2116 1902.73 34520
Unakoti 11 29 23 28 1 0 3 5 3 593.61 23490 16.634 1836
Dhalai 41 95 75 89 6 7 13 16 5 353.95 7156 129.821 575
Khowai 21 32 12 27 5 4 2 4 11 1989.200 5569 3.84 913
West 71 122 84 121 1 0 3 54 14 5499.567 125207 324.75 9631
Sepahijala 152 168 103 162 6 0 9 108 35 20206.95 9933 0 136999
Gomati 9 16 6 15 1 0 0 5 4 337.70 9585 9.860 37868
South 43 40 29 40 0 1 1 31 10 578.66 4954 5.0 6224
GRP 15 20 14 6 14 2 3 8 2 422.0 0 175.0 0
Seizure - - - - - - - - - 25659.42 0 528.365 50533
U/S 102
Cr.PC.
Total 433 660 435 602 58 14 36 278 105 65364.0 188099 3096.0 279719
Name of Total Number of Number Number Bail granted by Number Number of Persons Cases
Districts number of cases in of of persons of persons challan charge pending
cases which persons on bail in custody submitted sheeted in which
registered arrests arrested arrest
have been has
High Special Other
made been
Court Court Courts
made
North 70 64 140 106 01 104 01 34 26 57 38
Unakoti 11 09 29 27 01 26 0 02 05 08 04
Dhalai 41 39 96 86 03 60 23 10 22 53 17
Khowai 21 14 35 18 02 16 0 17 04 06 10
West 71 57 123 85 05 80 0 38 03 04 54
Sepahijala 152 124 168 105 03 102 0 63 45 69 79
Gomati 9 09 16 08 02 06 0 08 0 0 9
South 43 35 47 36 05 31 0 11 01 01 34
GRP 15 09 20 14 0 14 0 06 03 04 06
Total 433 360 674 485 22 439 24 189 109 202 251
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6. Coming to the instant case, on 1st June 2018, in Pecharthal Police Station FIR No.0014 was registered under Section 22(C) of Narcotics Drugs & Psychotropic Substance Act, 1985. Allegedly, 23,200 (approximately) bottles (100 Ml. each) of ESKUF codeine based cough syrup packed(145 cartoons) - a psychotropic substance - were recovered from a vehicle bearing No.AS-11-AC-3666. Investigation revealed complicity of 5(five) accused persons in the crime.
7. One of them namely, Govinda Das filed the instant bail application seeking bail on the ground what is commonly termed as a default bail - for police did not file the charge sheet within the stipulated period of time. This bail application dated 7th December, 2018 was listed before the Court on 11th December, 2018 when notice was issued. On 18th December, 2018, the Court directed the Director General of Police, Tripura to file his personal affidavit, disclosing as to why the provisions of Cr.P.C. were not complied with in time i.e. charge sheet not filed within the stipulated time. Though the affidavit was not filed but on 20th December, 2018, the Director General of Police appeared-in-
person when the matter was adjourned. On 10th January, 2019, learned counsel for the applicant sought permission to withdraw the present application for the reason that the same had become infructuous inasmuch as during its pendency, regular bail stood granted by the trial Court which prompted this Court to call for the record of the proceedings pertaining to the case arising out of the said FIR.
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8. On 18th January, 2018, this Court after minutely examining the record, made certain observations and issued directions which can be crystallized as under :
(a) The police sought police remand only of some of the accused and that too for a limited period. Chart depicting such position reads as under:
Sl. Name of Date of Date of Period Period No. accused arrest remand sought granted sought for 1. Apu Saha 01.06.2018 02.06.2018 7 4 2. Gobinda Das 04.06.2018 05.06.2018 5 3 07.06.2018 5 Declined
3. Dhruba 21.06.2018 21.06.2018 3 Rejected Majumder 4. Uttam Deb 20.09.2018 24.09.2018 3 3
5. Billal Miah 25.10.2018 No remand sought
(b) The chart depicting the date on which the accused were arrested and granted bail:
Sl. Name of accused Date of Date of Completion No. arrest grant of of 180 days bail (Default bail)
1. Apu Saha 01.06.2018 07.01.2019 28.11.2018
2. Gobinda Das 04.06.2018 07.01.2019 01.12.2018
3. DhrubaMajumder 21.06.2018 03.01.2019 18.12.2018
4. Uttam Deb 20.09.2018 In Jail 27.03.2019
5. Billal Miah 25.10.2018 In Jail
(c) The Court granted bail to accused Dhruba Majumder without assigning any reasons.
(d) If only the Court granting bail or the prosecution had been vigilant in seeing the Case Diary, it would have been noticed that accused Gobinda Das had Page - 7 of 15 already filed a bail application before this Court on 7th December, 2018. In any case, the said accused concealed the factum of filing of the instant bail application.
(e) Even accused Dhruba Majumder, a serving police official, had also filed bail application(s) before this Court, which did not bear the desired result. Consequently, this Court issued notice to the bail applicant Gobinda Das as also accused Dhruba Majumder to show cause as to why, orders granting bail passed by the trial Court be not cancelled.
9. Pursuant to the aforesaid order, Mr. Somik Deb learned counsel, appears for the bail applicant and Mr. S Rahman learned counsel, appears for the police officer accused Dhruba Majumder.
10. The Court now proceeds to examine as to how the bail applications of accused Dhruba Majumder and Gobinda Das were dealt with by the Court below.
11. Order dated 3rd January, 2019, passed by the trial Court, insofar as grant of bail in favour of accused Dhruba Majumder is concerned, reads as under:
"Special (NDPS) 05 of 2018.
03-01-2019.
---------- - -
It is submitted by learned defence counsel on behalf of accused Dhruba Majumder that the statement of witnesses so far recorded by the IO during investigation does not attract offence under section 29 Page - 8 of 15 of the NDPS Act against accused Dhruba Majumder who is in custody from more than 6 months. A part from this his submission is that so far the prayer of custody trial is concern, plea as taken by the IO for the said purpose is not sufficient to detain the accused in custody during trial. So, his submission is that by imposing any condition Dhruba Majudmer may be released on bail.
Learned special PP is present who submits to the court that at this stage if the accused is released on bail he may temper the evidence of the prosecution witnesses. A part from this his submission is that section 29 for the purpose of abetment is attract against accused Dhruba Majumder. So, he prays to the court to reject the bail petition.
I perused the case record meticulously.
It appears that IO laid charge sheet against five accused persons. Out of them one accused person namely Rajan Pal is absconding for which as per prayer of IO on 10-12-18 warrant of arrest issued in his name through the OC, Hailakandi PS. But the same is not yet returned after execution.
There was a separate prayer of IO for showing arrest of one accused namely Billal Miah in connection with this case and so prayer of IO was for issuing production warrant against the said accused. It was duly complied with but, the accused did not produce before me.
So, from the entirety of the case it appears that the case is still under investigation and after further investigation IO may submit charge sheet afresh against other accused persons. A part from this due to abscontion of one CS cited witness Rajan Pal some time is required for conducting trial.
Page - 9 of 15 So, keeping in mind the entirety of the submission of learned defence counsel I allow accused Dhruba Majumder to go on bail on his furnishing a bail bond of Rs.4 lacs with two sureties of like amount to the satisfaction of this court on condition that on each and every date he shall appear before the court without fail.
------------ - -
Special Judge, Unakoti Judicial District, Kailashahar, Tripura."
(emphasis supplied).
12. Order dated 7th January, 2019, passed by the trial Court granting bail to two accused persons Apu Saha and Gobinda Das, is reproduced in toto as under:
"07.01.2019 Record is put up today as bail petition is filed on behalf of custody accused persons namely Apu Saha and Gobinda Das. It is moved by learned counsel.
Learned special PP is also present.
Heard both sides on the matter of bail.
On the last date one of the accused Dhruba Majumder was enlarged on bail. Since, the accused persons are in custody for long time and as one of the accused is absconding some time may require to conduct trial.
So, considering all aspects said two accused persons namely, Apu Saha and Govinda Das are also allowed to go on bail on their furnishing a bail bond of Rs.2,00000/- each with one surety of like amount to the satisfaction of this court on condition that each and Page - 10 of 15 every date they shall appear before this court I/D to remain in JC as before.
Received a R/G message, from the Superintendent, Udaipur District Jail who informed that after lapse of stipulated date they received the production warrant and as such they failed to produce the accused.
Received a letter from the Superintendent Unakoti District Jail, kailashahar who informed that the accused persons namely Dhruba Majumder and Uttam Deb are shifted to kamalpur Sub-Jail in connection with cases pending before the learned special Judge, Dhalai District, Ambassa.
Keep the same in the case record.
To date fixed.
Special Judge, Unakoti Judicial District, Kailashahar, Tripura."
(emphasis supplied).
Here only it is clarified that this Court is not dealing with the order pertaining to Apu Saha for State intends taking certain steps in that regard.
13. Both the orders reproduced supra are conspicuously silent on material aspects. There is no reference, much less recording satisfaction by the trial Court that (i) there are reasonable grounds for believing that the person is not guilty of the alleged offence and (ii) that he is not likely to commit any offence while on bail.
Page - 11 of 15 In fact, if only the trial Court had been more vigilant, and examined "due diligence", it would have noticed that accused Dhruba Majumder was involved in more than one case.
14. In his case, even though the Public Prosecutor had opposed the bail application but failed to inform that on 13th November, 2018, this Court had not allowed three similar applications for grant of bail. In his bail application(s) being BA No.112 of 2018, BA No.113 of 2018 and BA No.118 of 2018, all titled as Dhruba Majumder Vs. State of Tripura, this Court had passed the following order:
"After hearing substantial part of submission of learned counsel of both the parties and when this Court is going to pass its order, learned counsel for the petitioner submits that he likes to withdraw the bail applications bearing No.BA No.112 of 2018, BA No.113 of 2018 and BA No.118 of 2018.
Considering the prayer of the learned counsel of the petitioner, the aforesaid bail applications are dismissed as withdrawn."
15. In the case of accused Gobinda Das, the Public Prosecutor, failed to invite attention of the pendency of the present petition. The accused as also the prosecution were under an obligation to have informed the trial Court of the factum of filing and the outcome of the earlier bail applications.
16. It is the practice of this Court, more so, in terms of Order No.71 dated 20th February, 2015; Order No.72 dated 21st February, 2015 and Order No.73 dated 25th February, 2015 issued Page - 12 of 15 by the High Court of Tripura that in every bail application filed under Sections 437/438/439, an averment is required to be made disclosing, as to whether any other application for bail in relation to the very same offence stands filed or not.
17. On this count one finds both the accused Dhruba Majumder and Gobinda Das to have suppressed such fact and thus abused the process of law. Equally, the Public Prosecutor has been lackadaisical in his approach in dealing with the file. For was it not recorded in the Case Diary that such applications stood filed?
18. On this count one finds from the record that on 3rd July, 2018 itself the Court had recorded the factum of Govinda Das having informed the Court that he had preferred a bail application before "Hon'ble High Court" - presumably it has to be the High court of Tripura - so it was well within the knowledge of the Court that Govinda Das had preferred a bail application, which fact the Judge forgot while granting bail on 7th January, 2019. There has been total non-application of mind and non- consideration of material on record on the part of the very same judicial Officer.
19. The Apex Court in Puran Vs. Rambilas & Anr. reported in (2001) 6 SCC 338 has clarified that the concept of setting aside an unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or on account of some new facts requiring such cancellation as also in reported in Gurcharan Page - 13 of 15 Singh and Ors. Vs. State(Delhi Administration), (1978) 1 SCC 118; Manjit Prakash and Ors. Vs. Shobha Devi and Anr., (2009) 13 SCC 785, and State of Bihar Vs. Rajballav Prasad alias Rajballav Prasad Yadav, (2017) 2 SCC 178.
20. As such orders granting bail being perverse and wholly unsustainable in law, needs to be quashed.
21. There is yet another aspect which needs to be taken note of and that being the period for which the prosecution seeks remand as is so granted by the appropriate Court. Section 167(2) dealing with the power of remand is amply clear. No doubt right to seek remand is that of the I.O and discretion is that of the Court. But then it is to be exercised judiciously and in accordance with law, only for advancing the cause of justice. Record does not exhibit any reason for reducing the period of remand prayed for by the investigating officer. Equally, why no remand was sought with respect to some of the accused cannot be inferred from the record. Record revels that in the case of Dhruba Majumder the Court has not assigned any reason whatsoever for rejecting the investigator's request seeking police remand for a period of 3 days. The Court simply rejected the prayer for police remand reserving liberty to the Investigating Officer to interrogate the accused in jail custody. It is this which needs to be highlighted for Courts must properly consider, deliberate and then decide, depending upon attending fact situation.
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22. Resultantly, one finds both the orders of grant of bail i.e. order dated 3rd January, 2019 passed in favour of accused Dhruba Majumder and order dated 7th January, 2019 passed in favour of accused Govinda Das, to the extent of grant of bail, by Special Judge, Unakoti Judicial District, Kailashahar, Tripura in case No.Special(NDPS) 05 of 2018 titled as The State of Tripura Vs. Dhruba Majumder & Ors. to be perverse and wholly unsustainable in law and as such, are quashed and set aside. All consequences to follow.
23. Since accused Gobinda Das concealed the relevant information from this Court, of having earlier filed a similar application before this Court, in any event, the present application so filed by him, also stands dismissed.
24. This Court has not dealt with the right of any one of the accused to be enlarged on bail. It stands clarified that the Court has also left the issue of the grant/rejection of the bail (default or otherwise) on merits open. Only the illegality committed in not complying with the statutory provisions envisaged under Section 37 of the Act stands considered. It shall be open for the accused to file fresh application(s) seeking bail in accordance with law.
25. Record be immediately returned to the Court below.
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26. Also copy of the order to be circulated to all the judicial officers dealing with the offences under the Act. Registrar(Judicial) to ensure compliance.
(SANJAY KAROL), CJ Sukhendu