Calcutta High Court (Appellete Side)
Pushpak Modi vs The State Of West Bengal on 30 September, 2013
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1 In The High Court At Calcutta Criminal Miscellaneous Jurisdiction Appellate Side Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas and The Hon'ble Mr. Justice Subal Baidya CRM No.12832 of 2013 Pushpak Modi v.
The State of West Bengal Mr. Sekhar Kumar Basu Mr. Milon Mukherjee Mr. Y.J. Dastoor Mr. C.K. Jain Mr. Firoz Edulzi Ms. Devipriya Mitra Mr. D.C. Kabir ...for the petitioner.
Mr. Manjit Singh, PP Mr. Atif Ahmed Siddiqui ... for the State.
Heard on: September 30, 2013 Order on: September 30, 2013.
Jayanta Kumar Biswas, J:- The petitioner accused of offences under ss.21(c)/29 NDPS Act and in custody from April 18, 2013 is seeking bail under s.439 CrPC.
The court below has refused bail on August 29, 2013 referring to the quantity of seized heroin and the provisions of s.37 of the Act.
Mr. Basu, Mr. Mukherjee and Mr. Dastoor appearing for the petitioner have submitted as follows. On the basis of some secret information the officials concerned conducted a raid and seized things used for manufacturing heroin. One Golam named one Ayub. From Ayub 10 kg cod heroin was seized. Ayub named the petitioner. From the petitioner 4.5 kg amphetamine was seized. Authenticated samples of substance seized from Ayub were sent for 2 tests. The report is that the seized substance was not heroin. Ayub has been granted bail. Unauthenticated samples of substance seized from the petitioner were sent for tests. The report is that the samples contained heroin. Documents produced with the CRM will show that the witnesses in whose presence the substance was seized from the petitioner are non-existent. Amphetamine is not a prohibited substance. It is evident that a false case has been started against the petitioner, a businessman of repute.
Mr. Public Prosecutor opposing bail and producing the case diary has submitted as follows. The materials in the case diary will reveal that while samples of substance seized from Ayub were authenticated on April 17, 2013; samples of substance seized from the petitioner were authenticated on April 19, 2013; and that all the samples were sent to the laboratory for tests. The test report received on April 22, 2013 reveals that while the substance seized from the petitioner contained heroin, the substance seized from Ayub did not contain heroin. It is not known, how the petitioner filed a case questioning the seizure and how the police submitted a report that the seizure list witnesses are non-existent.
The seizure list shows that the substance seized from the petitioner was cod heroin according to Ayub and amphetamine according to drug-kit tests. The case diary materials show that the samples were sent for laboratory tests with the necessary certificate of authentication signed by the Special Judge concerned. This being the position, we are unable to accept at this bail stage that the test report is unreliable. Simply because the samples of substance seized from Ayub did not show presence of heroin, a conclusion cannot be drawn that the substance seized from the petitioner could not contain heroin. It is true that Ayub named the petitioner and led the officials to the recovery of the substance from the petitioner's possession. The petitioner's claim that he is a businessman of repute is not relevant for bail.
In our considered opinion, in view of the test report that the samples of the substance seized from the petitioner contained heroin, the petitioner 3 should not be granted bail. It is worth mentioning that 4.5 kg cod heroin was seized from the petitioner. Bail to the petitioner is likely to affect the general interests of the society.
For these reasons, we dismiss the CRM. Certified xerox.
(Jayanta Kumar Biswas, J.)
S.R. (Subal Baidya, J.)