Tripura High Court
Saktijit Sarkar vs The State Of Tripura on 10 February, 2021
Author: S.G.Chattopadhyay
Bench: S.G.Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
AB 5 of 2021
Saktijit Sarkar .....................Applicant(s)
Versus
The State of Tripura ..................Respondent(s)
For the Petitioner(s) : Ms. S.Deb(Gupta), Adv.
For the Respondent(s) : Mr. R.Datta, PP
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
ORDER
10.02.2021 [1] This is an application under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C, in short) filed by Saktijit Sarkar for granting him pre-arrest bail he is apprehending arrest in A.D.Nagar P.S. Case No.089 of 2020 which has been registered under Sections 21(c), 25, 27(a) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, in short).
[2] Heard Ms. S.Deb(Gupta), learned counsel appearing for the petitioner as well as Mr. R.Datta, learned PP appearing for the State respondent.
[3] Brief facts of the case are as under:
Having received an information from his source that huge quantity of contraband items were stored in the AB/5/2021 Page 1 of 8 go-down of FIR named accused Santosh Kumar Jalan at Badharghat, Shri Kiran Sankar Chowdhury, Sub-Inspector of Police of A.D.Nagar police out-post entered the information in the Station Diary of the police station vide GD entry No. 13 dated 12.10.2020 and arrived at the location and found 2 persons standing in front of the said go-down. The go-down was found under lock and key. The persons who were standing in front of the go-down were Santosh Kumar Jalan and his son Gaurav Jalan. At the instruction of the Police Officer, they opened the go-down. Having entered into the go-down, police found another shutter inside it which was also under lock and key. Santosh Kumar Jalan and his son Gourav Jalan who are the FIR named accused of this case declined to open the shutter. Police broke the lock of the shutter and went inside from where huge number of nylon sacks containing contraband named "Phensedyl" and "Eskuf" of huge quantity. Since the accused persons failed to explain the possession of those contraband the said contraband items were seized in presence of witnesses which are as follows:
"1. Total 14,900 (Fourteen thousand nine hundred)) nos bottles Rx chlorpheniramine malcate codeine phosphate cough Linctus phensedyl each containing 100ml, which batch no.PSB0226 mfg dated Aug-20 expiry date Jan- 2020, manufactured in India by Abbott health care pvt. Ltd. village Bhatauli Khurd, PP Baddi 173205 district Solan, Himachal Pradesh.
2. Total 2,300 (Two thousand three hundred) nos bottles RX chlorpheniramine maleate codeine phosphate cough Linctus phensedyl each containing 100 ml, which batch no. PSB0261 mfg date Aug-20 expiry dated Jan-2022, manufactured in India by Abbott health care pvt. Ltd.AB/5/2021 Page 2 of 8
Village Bhatauli Khurd, PO Baddi 173205 district Solan, Himachal Pradesh.
3.Total 10,720 (Ten thousand seven hundred twenty) nos bottles Rx codeine phosphate & chlorpheniramine maleate syrup "Eskuf" each containing 100 ml, which batch no.KESL-164 mfg dated 06/2020, expiry date 05/2022, manufactured in India by Laborat pharmaceuticals Indai Ltd (unit-II)31, Rajban Road, nariwala, paonta sahib (H.P).
4. Total 3,200 (three thousand two hundred) nos bottles Rx codeine phosphate & chlorpheniramine maleate syrup "Eskuf" each containing 100 ml, which batch no.KESL- 207 mfg date 06/2020, expiry dated 05/2022, manufactured in India by Laborat Pharmaceuticals India Ltd (Unit-II) 31, Rajban Road, nariwala paonta sahib (H.P).
5. Total 480 (Four hundred eighty) nos bottles Rx codeine phosphate & chlorpheniramine maleate syrup "Eskuf" each containing 100 ml, which batch no.KESL- 217 mfg date 06/2020, expiry dated 05/2022, manufactured in India by Laborat Pharmaceuticals India Ltd (Unit-II) 31, Rajban Road, nariwala paonta sahib (H.P)."
[4] Thereafter, the two FIR named accused were arrested by police and they were taken into custody on 12.10.2020. On 18.11.2020 a bail application under Section 439 Cr.P.C were moved on their behalf in the High Court vide order dated 18.11.2020 they were granted bail mainly on the ground that the go-down from where the contraband were seized was already leased out to one Biplab Debnath and part of the go-down was also leased out to Saktijit Sarkar who is the present petitioner vide lease agreement executed by Smt. Neelam Jalan wife of accused Santosh Kumar Jalan and as such accused Santosh Kumar Jalan and his son Gaurav Jalan had no control over the go-down.
AB/5/2021 Page 3 of 8[5] Now, appearing for the petitioner namely Saktijit Sarkar, Ms. S.Deb (Gupta), learned counsel submits that though the accused is not named in the FIR, police has, by this time, seized his bank accounts and taken initiative for his arrest. Learned counsel refers to the observation of this court in the order dated 18.11.2020 and submits that this court in the said order made a clear observation that the go-down from where the contraband was allegedly seized was leased out to Biplab Debnath long back and FIR named accused did not have any control over the said premises. Further contention of learned counsel of the petitioner is that there is no material to justify arrest and detention of the petitioner in this case because the petitioner is a businessman who is doing business in electrical goods and there is no proof of his involvement in the storage of the seized contraband. According to learned counsel his arrest and detention will spoil his life and moreover he has a college going daughter and a family consisting of his wife and parents who will be put to serious trouble by his arrest and detention. On these grounds, learned counsel urges the court for granting pre-arrest bail to the petitioner on any condition, whatsoever.
[6] Mr. Ratan Datta, learned Public Prosecutor vehemently opposes the bail application and submits that there are adequate materials in support of his involvement in the storage of the seized contraband. It is submitted by Mr. Datta leaned PP that Santosh Kumar Jalan is one of the FIR named accused whose wife Neelam Jalan leased out AB/5/2021 Page 4 of 8 part of the go-down to the present petitioner by executing a lease agreement and the materials available in the case diary indicate that the petitioner had a close association with said Santosh Kumar Jalan. Further submission of Mr. Datta, learned PP is that Biplab Debnath, another FIR named accused person is a driver of the present petitioner and both of them are business associates of said accused Santosh Kuamr Jalan who used to operate their business from the same go-down. Mr. Datta learned PP also refers to the observation of the High Court in order dated 18.11.2020 in BA No.119 of 2020 wherein it was observed that it was stated in the report received from the Investigating officer that the FIR named accused namely Santosh Kumar Jalan and his son Gourav Jalan were jointly running their business in association with the present petitioner namely Saktijit Sarkar and Biplab Debnath both of whom were reportedly absconding.
[7] Further argument on behalf of the prosecution is that police also issued notice under Section 160, Cr.P.C to petitioner Saktijit Sarkar and Biplab Debnath but did not respond to the notice. They are allegedly absconding since the FIR was registered. Learned PP, however, could not produce copy of such notice. It is also argued by learned PP that the contraband seized in this case involve commercial quantity and the petitioner is not entitled to bail in view of the embargo under Section 37 of the NDPS Act. Learned PP therefore, urges for dismissal of the bail application.
AB/5/2021 Page 5 of 8[8] I have considered the materials available on record and the submissions of learned counsel representing the parties. It is true that the contraband which has been seized in this case involves commercial quantity and in such case Section 37 of the NDPS Act has imposed certain limitations with regard to grant of bail under the Act.
[9] Section 37 of the NDPS Act, as substituted by the amendment in 1989 reads as under:
"[37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),----
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless----
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.]"
[10] Therefore, from a plain reading of the provisions of Section 37, it appears that where the offence involves commercial quantity and the bail application is opposed by the Public Prosecutor bail cannot be granted unless the AB/5/2021 Page 6 of 8 court is satisfied that there is reasonable ground for believing that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under NDPS Act after being released on bail.
[11] As noted, seized contraband involves commercial quantity. Now the question is whether based on the materials court can record its satisfaction that there are reasonable grounds for believing that the accused is not guilty as contemplated in Section 37 of the NDPS Act.
[12] It has surfaced on record that during the consideration of the bail application of FIR named accused namely Santosh Kumar Jalan in BA No.119 of 2020, a report was called for from the Investigating officer of this case to ascertain whether the scheduled premises in the lease agreement was the same place from where the contraband was seized. The investigating officer submitted the report pursuant to the direction of the court and the report indicated that part of the premises from where the contraband was seized was leased out by Smt. Neelam Jalan wife of Santosh Kumar Jalan to the present petitioner who was carrying out business from the said premises. Moreover, the materials available in the CD including the statement of the witnesses recorded under Section 161 Cr.P.C. clearly indicate that the petitioner was closely associated with the FIR named accused. Moreover, the petitioner is reportedly absconding since the case was registered.
AB/5/2021 Page 7 of 8[13] In these circumstances, prima facie involvement of the petitioner in the alleged offence cannot be ruled out. The contraband which has been seized in this case is of commercial quantity and as such at this stage of investigation custodial immunity cannot be provided to the petitioner by way of granting pre arrest bail.
In the result, his application stands rejected.
Return the CD.
JUDGE Saikat Sarma, P.A AB/5/2021 Page 8 of 8