Tripura High Court
Md. Delwar Khan On Behalf Of Accused Abu ... vs The State Of Tripura on 14 May, 2018
Author: S. Talapatra
Bench: S. Talapatra
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HIGH COURT OF TRIPURA
AGARTALA
BA NO.31 OF 2018
MD. Delwar Khan on behalf of accused Abu Sadek Khan and anr.
----Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. P.K. Biswas, Sr. Adv.
Mr. P. Majumder, Adv.
Mr. D. Biswas, Adv.
For Respondent(s) : Mr. A. Roy Barman, Addl. P.P.
HON'BLE MR. JUSTICE S. TALAPATRA
Order
14/05/2018
Heard Mr. P.K. Biswas, learned senior counsel assisted by Mr. D Biswas, learned counsel for the applicant as well as Mr. A .Roy Barman, learned Addl. Public Prosecutor for the state.
This is an application under Section 439 of the Cr.P.C read with Section 37 of the NDPS Act 1985 for granting bail of the accused persons, represented by the petitioner, in connection with Melaghar P.S. Case No.31 of 2018 under Sections 21(c)/22(c) of the NDPS Act, 1985 and under Section 34 of the IPC. The accused persons were arrested on 17.04.2018 and since then they are in the custody.
Mr. P.K. Biswas, learned senior counsel has raised several grounds including:
(1) There is no record to show that the so called materials seized in connection with the said case is narcotic or psychotropic substance.
(2) Even if it is assumed that the narcotic or psychotropic substance has been recovered from the vehicle by which the petitioners were traveling, it cannot be said that the narcotic and psychotropic substances were in their possession. Possession cannot Page 2 of 4 be held whimsically concerning any person. The materials so seized must have a direct nexus.
That apart Mr. P.K. Biswas, learned senior counsel has submitted that there is complete non-compliance of Section 42 (2) of the NDPS Act in as much as even though there was adequate time for the complainant to take permission from the competent officer but he preferred not to take such permission or inform the competent authority.
Even in the bail stage, if it is shown that the mandatory provisions have not been complied by the searching and seizing officers, that itself constitute the ground for granting bail to the accused persons and considering that for non-observance of the mandatory requirements of law, the trial is bound to fall through in as much as the trial is held on ascertaining the nature and species of the seized substance. Thus the threshold is crossed by the investigators.
In support of his contention Mr. Biswas, learned senior counsel has relied on the decision of the Apex Court in Sarija Banu Vs. State reported in (2004) 12 SCC 266 where the Apex Court has held that when in the bail application serious violation of the Section 42 of the NDPS Act is asserted and in the impugned order nothing is observed on such continuing violation, then the accused persons become competent to get the bail. Compliance of Section 42 of the NDPS Act is mandatory and that observance is relevant fact which should be noticed while considering the bail application. The Court is duty bound to consider all such facts. The accused has the right to have the fairness in action, during the time of investigation and trial. They should be granted bail.
Mr. P.K. Biswas, learned senior counsel has further submitted that without drawing any sample with certification by the concerned Magistrate, samples have been sent for the chemical examination. Violation of propriety and the procedure are fatal for the prosecution.
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From the other side Mr. A. Roy Barman, learned Addl. P.P., appearing for the state has in terms of the order dated 11.05.2018 produced the notification issued under Section 1(2) of the Narcotic Durgs and Psychotropic Substance (Amendment) Act, 2001. From the said notification it clearly appears that the said notification has come into effect from 19.10.2001.
According to the said notification the MET AMFET AMINE [the brand name of methamphetamine]. The said generic composition contains dimethyl, phenethylamine and phenylpropane. Methamphetamine according to the said notification dated 19.10.2001 is a psychotropic substance. The small quantity is 2(two) gram whereas commercial quantity is 50 gram. According to Mr. Roy Barman, Addl. P.P., the police has seized the tablets of methamphetamine.
On an earlier occasion, in the similar durg seized by the police was sent to the State Forensic Science Laboratory (SFSL) has observed after the chemical examination as under:
" methamphetamine and caffeine have been detected as active ingredient."
Mr. Roy Barman, learned Addl. P.P., has also produced a copy of the said letter dated 12.12.17 [in connection with 22(b) (c), 23(b) (c) / 29 of the NDPS Act 1985] Mr. Roy Barman, learned Addl. P.P., has further submitted that the allegation as made by the petitioners are absolutely without any foundation. The investigating officer after getting tip of the information he immediately recorded the same in the G.D. entry. The recorded version of the same has been sent to the Superintendent of Police who is the apex authority in this regard.
Having appreciated the submissions made by the learned counsel and scrutinized the case diary as produced before me, this Court is of the view that the issues as taken by Mr. P.K. Biswas, learned senior counsel are all relevant for the trial but so far his observation about Section 42 of the Page 4 of 4 NDPS Act is concerned ,apparently, this Court finds there is sufficient documentation about the procedure and hence on that ground the bail cannot be considered. That apart, what Mr. P.K. Biswas, learned senior counsel has submitted is that unless the bail is granted, the petitioners will suffer multiple prejudices. Even the police has directed his banker not to operate his account as well as the cheque book as had been procured by him was taken away by them. According to Mr. Biswas, learned senior counsel, the petitioners have been been framed in this matter though they have no nexus with the search and seizure.
This Court having gone through the records as produced in the form of the case dairy as well as the notification etc., is of the view that it is not the stage when the accused person can be granted bail. The state is directed to properly follow the procedure and get the seized tablets examined chemically by the State Forensic Science Laboratory following the procedural law. When the report will be available, the petitioner may approach the special court again and if the State Forensic Science Laboratory's report indicates that the seized materials are not the narcotics or psychotropic substance, then the petitioners may immediately file the bail and the special court shall re-consider the aspects and consider the bail application of the petitioners accordingly.
The material produced by Mr. Roy Barman, learned Addl. P.P., is returned.
JUDGE suhanjit