Tripura High Court
Smt. Rasmita Dey vs The State Of Tripura on 1 May, 2020
Author: S.G Chattopadhyay
Bench: S.G Chattopadhyay
Page 1 of 11
HIGH COURT OF TRIPURA
AGARTALA
BA No.42/2020
Smt. Rasmita Dey, wife of Shri Balaram Dey, village: Ratiabari,
PS : Kumarghat, Dist: Unakoti, Tripura
.....................Applicant
On behalf of Shri Balaram Dey, son of late Dulal Dey, village:
Sukanta Nagar, PS: Kumarghat, Unakoti Tripura
.......................Accused
Versus
The State of Tripura
..............Respondent
B_E_F_O_R_E HON'BLE MR. JUSTICE S.G CHATTOPADHYAY For the Applicant(s) : Mr. A. Bhowmik, Advocate.
For the Respondent(s) : Mr. R. Datta, PP.
Date of Hearing : 01.05.2020
Date of Order : 01.05.2020
Order
[1] This is an application filed under Section 439 of the
Code of Criminal Procedure, 1973, for grant of bail to accused Balaram Dey who has been arrested on 07.04.2020 in connection with Pecharthal Police Station case No.2020 PTL 010 for allegedly committing offence punishable under Sections 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, herein after referred to as the 'NDPS Act'.
[2] Smt. Rasmita Dey, wife of the accused, has filed this application seeking release of her husband on bail and in her affidavit annexed to the application, she has stated that no other application for bail in relation to the same matter stands filed in the High Court or in the Supreme Court.
Page 2 of 11[3] The material facts, relevant for disposal of the matter, briefly stated, are as follows:
On 07.04.2020, following a secret information, police intercepted the vehicle bearing registration No. NL 01 Q 9390 on the National High Way in front of the Pecharthal Police Station and after carrying out a search operation inside the vehicle, recovered a plastic carry bag containing 1000 (One thousand) Yaba tablets and 51.260 gram Heroine from the possession of the accused who was found travelling in the vehicle along with accused driver Md. Jakir Ahamed from Karimganj in Assam to Kumarghat in Tripura. The contraband drug was found concealed in the cabin of the vehicle. On interrogation, none of the accused could offer any explanation in their defence. Therefore, police seized the contraband drug in presence of the accused and witnesses and arrested both of the accused and brought them to police station. On the following day both of the accused were produced before the learned Special Judge at Kailashahar in Unakoti Judicial District and since then they are in custody.
[4] Mr. Arijit Bhaumik, learned counsel appearing for accused Balaram Dey has made the following submissions:
(i) Accused is innocent and he has been falsely implicated in the case.
(ii) Accused is a motor mechanic and he had gone to Karimganj in Assam on 06.04.2020 i.e the day before the occurrence for some mechanical work and he stayed there in the house of one Chanchal Ali on 06.04.2020. As a result of the ban on public transport due to the ongoing lock down, he boarded the vehicle of the accused driver Md. Jakir Ahamed on 07.04.2020 for returning his home at Kumarghat.
(iii) Accused Md. Jakir Ahamed was the driver of the vehicle and as such the present accused namely, Page 3 of 11 Balaram Dey did not have any knowledge that there was contraband in the cabin of the vehicle.
(iv) The entire exercise of search and seizure was carried out in contravention of the mandatory provisions of Section 41(2) of the NDPS Act because the alleged search operation followed by the arrest of the accused was made without warrant or authorization as required under Section 41(1) and the information allegedly received by police prior to the arrest and search was not taken down into writing in terms of Section 41(2) of the NDPS Act.
(v) The case has been registered against the accused in total disregard of the mandatory provisions of Section 42(1) and (2) of the NDPS Act because police who conducted the search without warrant or authorization between sun set and sun rise did not record the reasons thereof in terms of the second proviso to Section 42(1) of the NDPS Act and in consequence a breach was committed by police also in respect of sub-section (2) of Section 42 of the Act.
[5] In support of his contention, Mr. Bhoumik, learned counsel appearing for the accused has placed reliance on the following judgments.
(i) Karnail Singh versus State of Haryana reported in (2009) 8 SCC 539 (ii) Darshan Singh versus State of Haryana reported in (2016) 14 SCC 358 [6] According to learned defense counsel, the quantity of
the contraband allegedly seized from the vehicle in which the accused is lesser than the commercial quantity and as such there is no legal impediment on granting bail to the accused.
Page 4 of 11[7] The bail application on the other hand has been vehemently opposed by Mr. Ratan Datta, learned Public Prosecutor. Mr. Datta, learned PP with reference to the Case Diary has contended that there are sufficient incriminating materials against the accused to justify his arrest and detention and his release on bail at this early stage of investigation is likely to impair the progress of investigation of the case. It is further contended by learned PP that the accused is in custody only for 27 days and in view of the provision of sub-section (4) of Section 36 A and the embargo put under clause(b) of sub- section (1) of Section 37, the accused is not entitled to bail at this stage. In rebuttal of the submission of learned defense counsel with regard to non compliance of Section 41 of the NDPS Act, it is argued by Mr. Datta, learned PP that the search operation followed by arrest of the accused was made in the physical presence of the SDPO who was a gazetted officer and as such the submission of learned defense counsel that the search and arrest was not authorized in terms of Section 41 of the Act is not acceptable. Learned PP, therefore, urges the court for rejecting the bail application of the accused.
[8] I have considered the submissions of the learned counsel representing the respective parties and examined the materials available on record including the Case Diary produced by the prosecution.
[9] It is true that there are limitations on granting bail in respect of certain offences specified under Section 37(1)(b) of the NDPS Act which provides that for offences punishable under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity, where the PP opposes the bail application, bail cannot be granted unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit such offence while on bail.
Page 5 of 11[10] It has become the settled principle of law that the limitations on granting bail specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under Section 439 of the Code of Criminal Procedure.
But in the case in hand, the accused is alleged to have committed offence punishable under Sections 22(b)and 29 of the NDPS Act and the quantity of the contraband drugs allegedly recovered from his possession is reportedly lesser than the commercial quantity.
[11] As regards the submission of the learned defense counsel regarding infraction of Section 41 of the NDPS Act, it is found that the entire search operation followed by the arrest of the accused was made in the presence of the jurisdictional Sub- divisional Police Officer and that too, following an information received and reduced into writing in the station diary of Pecharthal police station vide GD entry No.23 dated 07.04.2020 and the Case Diary containing the extract of the relevant GD has revealed that the information was taken down into writing at 17-46 hours on 07.04.2020 followed by the arrest and search at 18-15 hours on the same day. Therefore, the submission of learned defense counsel that the search and arrest was unauthorized and the information received prior to the search and arrest was not reduced into writing in terms of Section 41 of the NDPS Act does not gain ground.
[12] Section 42 of the Act provides that if the officer conducting the search has reason to believe that a search warrant or authorization, as contemplated in Section 42(1), cannot be obtained without offering opportunity for the concealment of evidence or facility for escape of the offender, the officer may conduct the search at any time between sun set and sun rise after recording the grounds of such belief of him in terms of the second proviso to Section 42(1) of the Act and shall communicate a copy thereof to the superior designated Page 6 of 11 officer within 72 hours in terms of sub-section (2) of Section
42. [13] As discussed herein above, the information received by police was reduced into writing in the Station Diary vide GD entry No.23 dated 07.04.2020 before the arrest was made and the search was conducted in the vehicle of the accused and on the same day the information was sent to the Superintendent of Police.
It is also on record that a gazetted officer of the rank of Deputy Superintendent of Police was physically present during the such arrest and search and the entire exercise was carried out under his direction. The question whether the prior information reduced into writing vide GD entry No.23 dated 07.04.2020 was sent to the superior designated officer strictly in terms of sub-section (2) of Section 42 to obtain authorization for such arrest and search is a matter to be established in trial.
[14] In Karnail Singh versus State of Haryana reported in (2009) 8 SCC 539 relied upon by learned defense counsel, the apex court examined the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search , seizure and arrest without warrant or authorization and after taking note of the ratio decided in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat reported in (2000) 2 SCC 513 and Sajan Abraham vs. State of Kerala reported (2001) 6 SCC 692, the Hon'ble apex court in paragraph 35 of the judgment has held as follows:
"35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).Page 7 of 11
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the Karnail Singh vs State Of Haryana on 29 July, 2009 information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-
sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."
[15] In the case in hand, police reduced the prior information received from secret source into writing prior to the arrest and search. The Case Diary reveals that the information was received and reduced into writing at 17.46 hours on 07.04.2020 and within 30 minutes, the offending vehicle along with the accused was spotted and the recovery of the Page 8 of 11 contraband was made at 18.15 hours on 07.04.2020. As also disclosed from the Case Diary, on the same day the information in detail was sent to the Superintendent of Police vide despatch No. 3883 dated 07.04.2020. True that the information reduced into writing was not sent to the Superintendent of Police prior to the search and arrest, but it was sent within the dead line provided under sub-section (2) of Section 42 of the Act.
[16] In Darshan Singh versus State of Haryana reported in (2016) 14 SCC 358, the solitary question which arose before the apex court was whether the registration of the FIR narrating the factual position, as also, the communication thereof to the Superintendent of Police would constitute an effective compliance with the provisions contained in Section 42 of the NDPS Act. The Hon'ble apex court having relied on the ratio decided in Karnail Singh(supra) has held as follows:
" 13. Having given our thoughtful consideration to the submission advanced at the hands of learned counsel for the respondent, we are of the view that the mandate contained in Section 42(1) of the NDPS Act, requiring the recording in writing, the details pertaining to the receipt of secret information, as also, the communication of the same to the superior officer are separate and distinct from the procedure stipulated under the provisions of the Criminal Procedure Code. Sub-section 1 of Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Sub-section (2) of Section 41 refers to issue of authorisation for similar purposes by the officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc. Sub- section (1) of Section 42 of the NDPS Act lays down, that the empowered officer, if he has a prior information given by any person, should necessarily take it down in writing, and where he has reason to believe from his personal knowledge, that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belie. The two separate procedures noticed above are exclusive of one another. Compliance of one, would not infer the compliance of the other. In the circumstances contemplated under Section 42 of the NDPS Act the Page 9 of 11 mandate of the procedure contemplated therein will have to be followed separately, in the manner interpreted by this Court in Karnail Singh's case (supra) and the same will not be assumed, merely because the Station House Officer concerned had registered a first information report, which was also dispatched to the Superintendent of Police, in compliance with the provisions of the Criminal ProcedureCode.
14. In the above view of the matter, it is not possible for us to accept the submission of the learned counsel for the respondent-State, that the registration of the first information report at the hands of the Station House Officer, Police Station Shahar, Panipat and its communication to the Superintendent of Police, Panipat would constitute sufficient compliance of the mandate of Section 42 of the NDPS Act."
[17] As held by the Hon'ble apex court in Karnail Singh(supra),total non compliance with the requirements of sub-sections(1) and (2)of Section 42 is impermissible and delayed compliance in urgent situation with satisfactory explanation about the delay will be acceptable compliance with Section 42. In the case of Darshan Singh (supra), relied upon by learned defense counsel, the Hon'ble Supreme Court reiterated the ratio decided in Karnail Singh.
[18] In view of the principles of law laid down in the judgments aforesaid, the submissions of learned defense counsel that the entire search operation was carried out and arrest of the accused was made in total disregard of the mandatory provisions of Section 41 and 42 of the Act, vitiating thereby, the entire investigation of the case cannot be conceded to. Evidently, the information received from secret source was reduced into writing prior to the arrest and search and within 30 minutes thereafter the offending vehicle was intercepted, search operation was conducted and the accused were arrested urgently. On the same day the details of the information was sent to the jurisdictional Superintendent of Police as it has transpired from the Case Diary. Therefore, this is no case of total non compliance of Section 42 of the NDPS Act.
[19] As discussed, the case against the accused has been registered for offences other than the offences specified under Page 10 of 11 clause (b) of sub-section 1 of Section 37 of the NDPS Act and reportedly the quantum of contraband drugs allegedly recovered and seized from the possession of the accused is lesser than the commercial quantity. Situated thus, the bail application in the given case has to be decided within the parameters of Section 439 of Cr.P.C. In this regard, the Hon'ble apex court while deciding a matter pertaining to bail in Anil Kumar Yadav vs. State (NCT) of Delhi reported in AIR 2017 SC 5398 has laid down the parameters to be considered in respect of granting or refusing bail to the accused of an offence. Further, the Hon'ble apex court on a similar issue in State of Orissa vs. Mahimananda Mishra with Raj Kishore Swain vs. State of Orissa and Anr. has held as follows:
"12. ...... It is also well settled that the court must not go deep into the merits of the matter while considering an application for bail. All that needs to be established from record is the existence of a prima facie case against the accused"
[20] In the given case, the case diary reveals that the present accused was caught by police along with the accused driver namely Md. Jakir Ahamed and a large number of contraband drug was recovered from his possession and he was arrested at the spot.
[21] It further appears from the forwarding note dated 08.04.2020 vide despatch No.3919 contained in the Case Diary whereby the IO forwarded the accused persons to the learned Special Judge on 08.04.2020 seeking their police remand that the present accused namely Balaram Dey was also entangled in Kumarghat PS case No.2019 KGT 017 for offences punishable under Sections 21(b) and 29 of the NDPS Act and he was arrested in the case.
[22] This court in the judgment dated 23.07.2018 in Bail Application No.58 of 2018 titled Asish Sarkar on behalf of accused Sudhir Sarkar vs. state of Tripura and in a later decision dated 07.02.2019 in BA No.147 of 2018 titled Smt. Rinku Das on behalf of accused Govinda Das vs. Page 11 of 11 State of Tripura had taken note of the perilous situation prevalent in the state with regard to the illegal cultivation and peddling of narcotic drugs and psychotropic substances and the deadly affects thereof.
[23] Having found the incriminating materials available on record against the present accused, I am of the view that there is a strong prima facie case against him. In view of the submissions of learned counsel representing the respective parties and keeping in view the principles of law laid down in the judgments aforesaid, the nature of the offence, its deadly impact on society, the materials available against the accused regarding his involvement in the alleged offence, the materials relating to his antecedents and all other surrounding facts and circumstances of the case, I am of the considered view that release of the accused on bail at this pre-mature stage of investigation is likely to impair and obstruct the progress of investigation of the case. I am, therefore, not inclined to release the accused on bail.
In the result, the bail application filed on behalf of accused Balaram Dey stands rejected.
[24] It is made clear that none of the observations made in this order shall have any bearing on consideration of any application(s) which may be filed by or on behalf of the accused or on the trial of the case.
The Case Diary be returned immediately.
Sd/-
JUDGE S. Sarma