Tripura High Court
Mr. B.Debbarma vs Mr. Ratan Datta on 16 April, 2021
Author: S.G.Chattopadhyay
Bench: S.G.Chattopadhyay
1
HIGH COURT OF TRIPURA
AGARTALA
BA 25 of 2021
For the Petitioner(s) : Mr. B.Debbarma, Adv.
For the Respondent(s) : Mr. Ratan Datta, PP.
BEFORE
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
ORDER
16.04.2021 [1] This application has been filed under Section 439 of the Code of Criminal Procedure, 1973(Cr.P.C. in short) for granting bail to the petitioner who is one of the FIR named accused in East Agartala P.S. Case No.2021 EAG 028 dated 10/03/2021 which has been registered under Sections 21(a) &(b) and Section 29 read with Section 8 of the NDPS Act and Rule 3 of the Passport (Entry into India)Rules, 1950.
[2] Facts of the case gathered from the FIR which are as under:
Based on a tip off received from a secret source, police conducted raid in the shop of accused Ajit Das at Laxminarayanbari road, Agartala on 09/03/2021 and seized 55gms Heroine in 103 plastic 2 pouch. On the same day, raid was also carried out in the rented house of Dipak Das @Deep at Banamalipur from where 105gms Heroine in 202 plastic vials was also seized. During interrogation, said Dipak Das and Ajit Das admitted to police that a syndicate was involved in the smuggling of said contraband. From their statement, the other accused persons including the petitioner were booked by police and from the possession of present petitioner namely Sankhadeep Roy, 3gms Heroine in 5 plastic vials was seized on 10/03/2021. The accused petitioner acknowledged the receipt of copy of the seizure list by putting his signature on the said seizure list.
[3] Based on the suo moto FIR lodged by Sri Abhijit Mandal, SI of police, East Agartala P.S. Case No.2021 EAG 028 dated 10/03/2021 was registered under Sections 21(a) &(b) and Section 29 read with Section 8 of the NDPS Act and Rule 3 of the Passport (Entry into India) Rules, 1950 and investigation of the case was taken up.
Apprehending arrest, the petitioner has approached this court for bail.
[4] Counsel appearing for the petitioner submits that the petitioner is pursuing his PG studies in engineering in the state of 3 Karnataka and he is in no way involved in this case. It is submitted by learned counsel that despite being completely innocent, petitioner is in custody for about 37 days. According to learned counsel, no contraband was ever recovered and seized from his possession and he was falsely implicated in the case. It is further submitted by learned counsel that for argument's sake, even if it is assumed that 3 gms of Heroine was seized from his possession, punishment for such offence would extend to imprisonment for 01 year and fine only because this is a non-commercial quantity. Learned counsel, in support of his contention, has relied on the decision of this High Court in the case of Bapan Roy vs. state of Tripura (BA No.65 of 2018) whereby this High Court vide order dated 20.08.2018 granted bail to the petitioner in a similar case observing as under:
"28. The legislature by means of putting a non- obstante clause intended to prescribe all offences, regardless of their nature or gravity as „cognizable‟ meaning thereby the said provision has an overriding effect to the provision of Cr.P.C. If that provision would not be there, by virtue of classification in part II, the offences under Section 21(a), 22(a) and 29(1) would have been non-cognizable, but they are made cognizable by specific provision of Section 37(1) (a) of the NDPS Act.
29. In the case in hand, the accused has been in custody for committing offence under Sections 21(a), 22(a) and 29(1) of the NDPS Act and the case being of small quantity these are such offences punishable with imprisonment which may extend to 1(one) year 4 or with fine. These offences not being the offences punishable under Sections 19, 24 and 27(a) and not a case involving commercial quantities, the general law, i.e., Criminal Procedure Code will be applicable whenever the question of bail arises under aforesaid provisions.
30. In the light of above analysis and applying the ratio decidendi in the case of M/S Frick India (Supra), this Court, is of the view that the headnote cannot modify/alter the plain meaning of a statutory provision when the statute is clear and unambiguous.
In the present case, Section 37 of the Act has to be construed taking into account the whole contents enumerated in the body of this provision and taking note of the objects the legislatures intended to achieve, which, if can be read in its proper perspective, then, all offences having punishment prescribed for less than 3(three) years and a case of small quantity, the same would be cognizable and bailable, since the said offences are covered by the category of third entry of part-II of the Schedule of the Code of Criminal Procedure, 1973.
On the premises aforesaid, learned counsel urges the court for granting bail to the petitioner.
[5] Mr.Ratan Datta, learned PP on the other hand vehemently opposes the bail application. According to learned PP, present accused is an active collaborator of the drug syndicate. It is submitted by Mr.Datta, learned PP that if the total quantity of the contraband seized from the collective possession of all the accused is taken into consideration, it would constitute a commercial quantity and there is no scope of granting bail to the petitioner.
5[6] Further submission of learned PP is that the accused was arrested and detained on the basis of the statement of the principal accused which indicates that he is a member of the said racket engaged in drug smuggling activities. According to learned PP, the accused is in custody only for 37 days and the investigation is at a very premature stage and at this stage of investigation, it would not be appropriate to allow bail to the accused.
[8] I have gone through the entire materials placed before this court including the CD produced by learned PP. Seizure list dated 10/03/2021 demonstrates that 3gms of Heroine wrapped in plastic vials were recovered and seized from the possession of the petitioner. Along with contraband, police also seized his mobile phone from his possession. No material has been placed before this court showing a nexus between the petitioner and the principal accused of the case. [9] Having considered the submissions of learned counsel of the parties, parameters of consideration of bail and all other surrounding facts and circumstances of the case, this court is of the view that it would be appropriate to allow interim bail to the petitioner for a period of 2 weeks from today on his furnishing bail bond of Rs.25,000/- with two local sureties of like amount each to the 6 satisfaction of the learned Sessions Judge, West Tripura, Agartala on the following conditions:
(i)The accused will report before the IO at NCC police station thrice in a week.
(ii)He will not leave the jurisdiction of the police station without prior approval of the IO.
(iii)He will not directly or indirectly try to influence any of the witnesses of the case.
List the matter on 30/04/2021.
Return the CD.
JUDGE Saikat Sarma, P.A