Tripura High Court
Smt. Mallika Debbarma vs The State Of Tripura on 19 March, 2019
Equivalent citations: AIRONLINE 2019 TRI 270
Author: Sanjay Karol
Bench: Sanjay Karol
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HIGH COURT OF TRIPURA
AGARTALA
(i) B.A. No.01/2019
Sri Sushil Debbarma, S/O. Late Surendra Debbarma, resident of
Rangmala, P.S.- Bishramganj, District-Sepahijala, Tripura.
---- Accused(s).
Smt. Mallika Debbarma, W/O. Sri Sushil Debbarma, resident of
Old Kalibari Road, Krishnanagar, P.S.- West Agartala, District-
West Tripura.
.... Applicant on behalf of the accused.
Versus
The State of Tripura, Represented by the Secretary, Department
of Home, Agartala, West Tripura.
---- Respondent(s).
For Applicant(s) : Mr. Debajit Biswas, Advocate.
For Respondent(s) : Mr. A. Roy Barman, Addl. P.P.
(ii) Criminal Petition No.08/2019
Court on its own motion
Versus
Sri Amal Das, S/O. Late Brajendra Chandra Das, Joypur, P.S.-
West Agartala, District:- West Tripura.
---- Respondent(s).
For Court : None.
For Respondent(s) : Mr. Subrata Sarkar, Advocate.
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
Date of hearing and judgment : 19th March, 2019.
Whether fit for reporting :
Yes No
√
JUDGMENT(ORAL)
On the basis of a secret information that one Amal Das is involved in the trade of psychotropic substance, so defined under the Narcotic Drugs and Psychotropic Substances Act, 1985 Page - 2 of 29 (hereinafter referred to as the NDPS Act), on 27.06.2018, after conducting search and seizure operations, police, inter alia, recovered contraband substance, i.e. (i) 450 tablets of methane ketamine, and (ii) Brown sugar 1.20 gms. During interrogation, accused Amal Das revealed that the contraband substance and the recovered money were actually that of Madhuri Chakraborty alias Puruli alias Puduli who was also arrested and during her interrogation, she disclosed that her husband Partha Chakraborty was engaged in the selling of the contraband substance in an open market. This was when she was quizzed about the recovered amount of `4,18,350/- and 4(four) mobile sets. She further disclosed that her another stepsister i.e. Jayanti Debbarma was also involved in the crime inasmuch as she was also storing and selling the psychotropic substance. Further investigation revealed, as was so disclosed by her, that the sale proceeds of the contraband substance were kept by her another sister, in her house, who is living with her husband Sushil Debbarma. This led the police search their house from where a sum of `9,81,100/- was recovered. All this led to the arrest of Smt. Madhuri Chakraborty, her husband Partha Chakraborty, her sister Smt. Jayanti Debbarma and her brother-in-law Sushil Debbarma.
2. The FIR in relation to the crime was registered at Police Station West Agartala and numbered as 2018/WAG/146 under Sections 22(c)/25/29 of the NDPS Act.
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3. It is a matter of record that before this Court, Smt. Mallika Debbarma, W/O. accused Sushil Debbarma filed an application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C) read with Section 37 of the NDPS Act seeking grant of bail of her husband. Along with the said application, she annexed copies of the orders passed by the trial Court granting bail in favour of co-accused Amal Das. On 10.01.2019, this Court directed the Public Prosecutor to ascertain as to whether the order passed by the trial Court stood confirmed or not. On 29.01.2019, the learned Public Prosecutor invited attention of this Court to several orders passed by the trial Court, which led this Court, issue notice to accused Amal Das to show- cause as to why orders granting bail be not quashed and set aside. This order dated 29.01.2019 is reproduced in extenso:
"29.01.2019 Mr. B. Choudhury, learned P.P. appearing for the State-respondent has produced the orders passed by the court granting bail with respect to the accused namely, Amal Das reads as under:
Order dated 19.07.2018 reads as under:
"Accused Amal Das has surrendered before the Court on expiry of interim bail and prayed for regular bail.
The bail prayer is registered vide No. B.A. 38/ASJ-04/2018.
Learned Addl. P.P. Kartik D. Jamatia and learned defence counsel are present. I have Page - 4 of 29 heard both sides on the bail prayer of the accused.
On previous date the accused was allowed interim bail till today. Today I have minutely perused the case record and also heard learned Addl. P.P. and learned defence counsel at length. Considering the nature of the case and also in view of the fact that there is no adverse report against the accused at this juncture, I am extending the interim bail granted to accused Amal Das on following conditions:
Accused Amal Das must furnish fresh surety bail bond of Rs. 1,00,000/- and should strictly abide by the direction of this Court and appear before the I.O. or the O.C. at West Agartala P.S. twice every day, firstly at 11.30 a.m. in the morning and subsequently at 4.30 p.m. in the afternoon till 10.8.2018. This interim bail shall remain in force till 10.8.2018 and the accused must appear before the Court on 10.8.2018 at 2 p.m. Supply a copy of this order to the I.O. and the I.O. is required to produce upto date C.D. before this Court on 10.8.2018 so that progress in investigation can be ascertained.
Also keep the case record of Misc. 1586 of 2018 received from the Court of learned Judicial Magistrate First Class, Agartala, West Tripura, in connection with this case, tagged with this case.
Fix 10.8.2018 for appearance of the accused after expiry of interim bail and
production of C.D. by I.O. and necessary order. Later on.
Bail bond has been furnished on behalf of accused Amal Das. The same is found correct on checking and bail bond is accepted."
Page - 5 of 29 Order dated 20.09.2018 reads as under:
"This is a case registered under Section 22(c)25/29 of NDPS Act.
Present Shri K. D. Jamatia Ld. Addl. P.P. for the state with case diary.
Accused Amal Das is present with his counsel Sri K. Indu.
Today the matter was fixed for hearing on the application of the accused for grant of regular bail.
It is pertinent to mention here that the accused was admitted to bail by my predecessor vide order dated 19.07.2018.
An application for grant of accused on bail is filed by the learned counsel however, it is found that a similar application is already pending before this Court. The said application was filed on the last date of hearing. Two bail applications on behalf of the same accused cannot be considered. As such, bail application filed today is dismissed.
Ld. Counsel for the accused prayed that the accused has been on interim bail for a long time and he had not violated any conditions of bail. As such, he may be admitted to regular bail.
Perusal of recorded shows that the accused has been arrested and forwarded to the Court of learned Sessions Judge on 28.06.2018. On the same day the case was assigned to this Court. A bail application numbered as B.A. 16/ASJ-4 of 2018 was filed before my predecessor and the accused was admitted to interim bail with condition to submit bail bond of Rs. 1,00,000/- with one surety of like amount. On the next date of hearing i.e. 30.06.2018 the bail was extended up to 04.07.2018. On 04.07.2018 the accused surrendered before my predecessor by filing a Page - 6 of 29 fresh application numbered as B.A. 21/ASJ-04 of 2018 and again the accused was admitted to interim bail till 19.07.2018. On 19.07.2018 the accused surrendered and prayed for regular bail by filing a bail application No. 38 of 2014 however, the accused was enlarged to interim bail till 10.08.2018. Again on that day a permanent bail application was filed which was fixed on 21.08.2018 and from 21.08.2018 the hearing of regular bail application is adjourned till date. Further perusal of record shows that initially the bail has been granted by my predecessor on the ground of mentioning/ spelling the contraband as wrong. Later on the said defect was cured thereby mentioning the contraband as metham phetamin which reflects in order dated 30.06.2018.
Although the mistake committed by the I.O. of the case was a minor one, specially in the circumstance where the present offence is regarding commercial quantity of drugs. However, not commenting anything on the order passed by my predecessor at the present moment I found no ground for cancellation of the bail order passed earlier. Further it is pertinent to mention here that the Court has no power to review the orders and there exists no ground for cancellation of the bail or the interim bail granted to the accused. In the facts and circumstance, the request of the accused for granting him to regular bail is allowed. He is directed to furnish a fresh bond of Rs. 1,00,000/- with one surety of like amount.
At this stage surety bond are filed. Same are checked found correct and accepted.
Fix 27.11.2018 for filing investigation report by I.O.
Page - 7 of 29 A copy of this order be sent to the I.O."
Order dated 29.12.2018 reads as under:
"This supplementary case record is opened today on received of some relevant papers including two order sheets in one file containing 28 sheets from the court of Ld. Chief Judicial Magistrate, West Tripura, Agartala in connection with West Agartala P.S. Case No. 146 of 2018 U/S 22(C)/25/29 of NDPS Act as the original case record bearing No. Special (NDPS) 47 of 2018 is lying in the court of Ld. Special Judge, Court No. 4, West Tripura, Agartala.
Received a bail petition on behalf of Accused Shri Partha Chakraborty, copy of the bail application also furnished to the Ld. P.P. Heard Mr. P. Sarkar, Ld. Counsel for the accused person on bail application at leangth.
It is submitted by the Ld. Counsel that the old aged father of accused Partha Chakraborty has been expired on 28.12.2018 at 8 PM in ILS Hospital, Agartala. Now the accused Partha Chakraborty being the only son of Lt. Debal Chakraborty shall have to perform "Mukhagni"
at the time of cremation and other ritual. It is further submitted by the learned counsel that the accused Partha Chakraborty may be allowed to remain on bail till Sarddha Ceremony of his deceased father.
Heard Ld. P.P. in respect of bail petition of accused Partha Chakraborty.
Ld. P.P. vehemently opposed the prayer of bail in consideration of nature of the offence and the direct involvement of the accused person with the alleged offences.
I have perused the record and also considered the oral submission advanced by learned counsel of both the parties. There is no Page - 8 of 29 doubt that accused Partha Chakraborty being the only son of Lt. Debal Chakraborty has obligation to perform the act of singeing of the mouth of his deceased father at the time of cremation.
And as such, I find it prudent to allow the bail petition of accused Partha Chakraborty on humanitarian ground.
Accordingly, the bail petition is allowed.
Accused Partha Chakraborty may be enlarged on interim bail till 02.01.2019 by furnishing a bail bond of Rs. 50,000/- with one surety of like amount with conditions that accused Partha Chakrabroty shall surrender before the learned trial court on 02.01.2019 positively without fail and he shall not make any attempt to destroy any evidence of the case i.d. to remain in J/C as before.
Send a copy of this order each to the Investigation Police Officer as well as the Superintendent of Kendriya Sangasodhanagar, Bishalgarh.
Also supply a copy of this order each to the Ld. P.P., West Tripura, Agartala and Mr. P. Sarkar, Ld. Counsel of the accused person free of cost.
Send this supplementary case record alongwith all the relevant papers received from the court Ld. Chief Judicial Magistrate, West Tripura, Agartala to the court of learned Special Judge, Court No. 4, West Tripura, Agartala on 02.01.2019.
To date fixed (02.01.2019)."
Order dated 02.01.2019 reads as under:
"The record is taken up on receiving supple mentary case record from the court of C.J.M. Page - 9 of 29 The accused Madhuri Chakraborty and Sushil Debbarma are produced from j/c.
Accused Partha Chakraborty, on interim bail, is present and surrendered before the Court. He is taken into custody.
Present Shri K. D. Jamatia learned Addl. P.P. for the State along with the I.O. of the case.
Present case was registered on 27.06.2018 u/s 22(C)/25/29 of the NDPS Act and the accused persons were arrested at different time on 25.12.2018 alleging their involvement in the present case. The accused Madhuri Chakraborty was produced before the Duty Magistrate on 25.12.2018 and the accused Sushil Debbarma and Partha Chakraborty were produced before the Duty Magistrate on 26.12.2018 and was sent to J/C till 02.01.2019.
That on 29.12.2018 a supplementary case record was opened by the vacation judge on receiving a bail application on behalf of accused Partha Chakraborty. The accused Partha Chakraborty was admitted to interim bail till today on the ground of death of his father.
Today the Ld. Counsel on behalf of accused Partha Chakraborty filed an application for bail and also filed separate bail application for the accused Madhuri Chakraborty for performing the last rites of their father and father in law respectively. It is submitted that Sarddha ceremony is scheduled for 11th of this month and even before the Sarddh ceremony many relatives and knowns visit their house and the applicants being the son and the daughter in law, required to be present at their house to attend the visitors.
Ld. Addl. P.P. opposes the bail application by submitting that the Sraddha ceremony can Page - 10 of 29 even be attended by releasing the accused persons on interim bail.
Heard both the sides.
The Accused Madhuri Chakraborty and Partha Chakraborty are directed to be released on interim bail till 13.01.2019 on furnishing a bail bond of Rs. 50,000/- with one surety each of like amount.
Bail bonds and surety bonds are filed on behalf of accused Madhuri Chakraborty and Partha Chakraborty. A common surety has been produced on behalf of both the accused persons. In my considered view there should be separate surety for both the accused persons. The surety bonds filed are accepted for accused Partha Chakraborty till 13.01.2019 and the surety bond filed on behalf of accused Madhuri Chakraborty is accepted only for two days i.e. till 04.01.2019. The accused Madhuri Chakraborty shall produce separate surety on next date of hearing. The surety bond filed today is checked, found to be correct and accepted. Release warrant qua the accused person Madhuri Chakraborty be issued and the accused Partha Chakraborty be released from the court itself.
A bail application is also filed on behalf of accused Sushil Debbarma.
Notice of the bail application is given to the Ld. Addl. P.P. Arguments heard at lengths from both the sides.
Ld. Senior Advocate Sri P.K. Biswas relied upon some judgments.
Fix 04.01.2019 for order on the bail application of accused Sushil Debbarma.
Accused Sushil Debbarma be remanded to J/C till 04.01.2019.
Page - 11 of 29 Case diary be returned to the I.O."
Prima facie, this Court is of the considered view that the orders passed are not inconformity with the settled principles of law. Since, the present applicant seeks reliance on the orders passed by the trial court and seeks bail on the ground of parity, this Court in this proceeding, would like to issue notice to the accused, Amal Das, Son of Lt. Brajendra Ch. Das, of Joypur, West Agartala, to show cause as to why the orders granting bail be not quashed and set aside.
Mr. Biswas, learned senior counsel appearing for the petitioners states that during the pendency of the present bail application, co-accuseds namely, Smt. Madhuri Chakraborty and Partha Chakraborty who were enlarged on bail, are now in judicial custody.
Service of notice to the said accused to be effected through the Superintendent of Police, West Agartala.
Notice is made returnable for 07.02.2019."
4. On 07.02.2019, with respect to accused Amal Das, this Court directed the Registry to register a separate petition to be termed as "Court on its own motion" which now stands registered as Criminal Petition No.08/2019, titled as Court on its own motion vs. Amal Das. As such, both these petitions were listed together. On 07.02.2019 learned counsel appearing for the bail applicant Smt. Mallika Debbarma/Sushil Debbarma (accused) and accused Amal Das were heard at length. Again on 14.02.2019, the learned Page - 12 of 29 counsel were heard when judgment reserved. However, certain points required clarification. As such, matter was listed and is heard afresh.
5. Mr. Debajit Biswas, learned counsel appearing for the accused Sushil Debbarma, has made two submissions;
(a) That accused is not even remotely linked with the crime; and
(b) Money amounting to `9,81,100/- recovered from the house of the said accused, and factum of recovery is not in dispute, is part of sale proceeds of the house belonging to his sister-in-law, i.e. sister of his wife.
6. Mr. Subrata Sarkar, learned counsel appearing for accused Amal Das, argues that the twin test laid down in Section 37 of the NDPS Act, is self emanating from the record and as such, this Court need not interfere with the order passed by the trial Court. Also since interrogation is complete, insofar as this accused is concerned, no interference with the order of bail is required.
7. On the other hand, Mr. A. Roy Barman, learned Additional Public Prosecutor, vehemently opposes the bail application, contending that at this stage, one bail application needs to be rejected and the other allowed with the order of bail be quashed and set aside, more so in view of Section 29 and 37 of the NDPS Act.
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8. It is seen that while passing the order granting interim bail in favour of accused Amal Das, the trial Court did not even refer to, much less record its satisfaction as is so required under Section 37 of the NDPS Act. The order, to say the least, is passed in the most cursory manner, without assigning any reasons.
9. It is a matter of record that as of date all the accused, except for accused Amal Das, are in custody.
10. Record reveals that accused Amal Das who was produced before the Court on 28.06.2018 was released by way of grant of interim bail by the Court of Special Judge, Tripura, N.D.P.S. Act, 1985, Court No.4. Noticeably, while doing so, the Court did take note of recovery of the contraband substance which, according to him, is a menace to the society. But surprisingly, on 30.06.2018 the Court rejected the request of the prosecution for cancelling the order of interim bail. But what is shocking is that by virtue of the very same order, though the Court rejected the prayer for grant of regular bail, yet granted interim bail, which was extended vide order(s) dated 04.07.2018; 19.07.2018; 10.08.2018; and 21.08.2018 and finally the said accused was admitted to regular bail on 20.09.2018. Record further reveals that in the meanwhile there was change of the Presiding Officer and on 27.11.2018 when accused Amal Das did not appear, bailable warrants were issued against him, but for undisclosed reason were "recalled" on 05.12.2018, on which date also the said accused did not appear.
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11. It is thus seen that at no point in time, both the Judicial Officers who were dealing with the bail applications of accused Amal Das, be it interim or regular stage, referred to the provisions of Section 37 or assigned any reasons granting bail. At least, from his possession the contraband substance stood recovered and the Court was conscious of such fact. It is not disputed before this Court that such provisions necessarily apply, in view of the stand taken by the prosecution and the nature and quantity of the recovered substance.
12. This Court in Bail Application No.149/2018, titled as Sri Haricharan Biswas on behalf of accused Sri Krishna Kumar vs. The State of Tripura and other connected matters, has extensively dealt with the power of the High Court in calling for the record of trial Court and interfere with the order granting bail, if found to be wholly unsustainable in law. The relevant portion of the report reads as under:
"59. That the High Court has got inherent power to cancel an order granting bail, which is wholly unsustainable in law stands well settled by the Apex Court in Rasiklal v. Kishore S/o Khanchand wadhwani,(2009) 4 SCC 446 (2 Judge Bench);
Rajballav Prasad (supra); Doongar Singh and Ors. v. State of Rajasthan,(2018) 13 SCC 741 (2 Judge Bench) and Dinubhai Boghabhai Solanki v. State of Gujarat and Ors.,(2018) 11 SCC 129 (2 Judge Bench).
The amplitude of the power of the Constitutional Court be it under the Constitution or the statute (Cr.P.C) is wide enough to Page - 15 of 29 correct any illegality, either on the asking of the State or on its own motion. Even the Court cannot be unmindful of the fact that such power is being exercised in a case where allegedly the accused is involved in dealing with huge quantity of contraband substance.
Under all circumstances, Court has to strike a balance vis-a-vis the liberty of an individual and the societal rights.
60. What does the Court do when one finds the prosecution to have accepted the illegality of the order? Should this Court remain silent? Should this Court, not exercise its inherent powers? Should this Court in public interest not rectify the mistake and the illegality committed by the Courts below, which stands accepted by the prosecution, for whatever reasons? Should this Court not prevent the abuse of process of law or is it that this Court should not interfere to secure the ends of justice?
61. The Apex Court in Popular Muthiah v. State represented by Inspector of Police, (2006) 7 SCC 296 (2 Judge Bench) inter alia observed that:
"30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammelled by procedural restrictions in that :
(i) power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefore.
(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is Page - 16 of 29 a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists."
62. However, such power has to be exercised sparingly and with circumspection which the Supreme Court in State of Punjab v. Davinder Pal Singh Bhullar and Ors., (2011) 14 SCC 770 (2 Judge Bench), has explained as under :
"60. The rule of inherent powers has its source in the maxim "Quadolex aliquid alicui concedit, concedere videtur id sine quo res ipsa, esse non protest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. The order cannot be passed by-passing the procedure prescribed by law. The court in exercise of its power under Section 482 Cr.P.C. cannot direct a particular agency to investigate the matter or to investigate a case from a particular angle or by a procedure not prescribed in Cr.P.C. Such powers should be exercised very sparingly to prevent abuse of process of any court. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
61. To inhere means that it forms a necessary part and belongs as an attribute in the nature of things. The High Court under Section 482 Cr.P.C. is crowned with a statutory power to exercise control over the administration of justice in criminal proceedings within its territorial jurisdiction. This is to ensure that proceedings undertaken under the Cr.P.C. are executed to secure the ends of justice. For this, the Legislature has empowered the High Court with an inherent authority which is repository under the Statute. The Legislature therefore clearly intended the existence of such Page - 17 of 29 power in the High Court to control proceedings initiated under the Cr.P.C. Conferment of such inherent power might be necessary to prevent the miscarriage of justice and to prevent any form of injustice. However, it is to be understood that it is neither divine nor limitless. It is not to generate unnecessary indulgence. The power is to protect the system of justice from being polluted during the administration of justice under the Code."
63. The Apex Court in K V Rajendran v.
Superintendant of Police, CBCID South Zone, Chennai and Ors.,(2013) 12 SCC 480, (3 Judge Bench) has further clarified that the extraordinary power must be exercised with the object of instilling faith of the people in the system. The principles stands reiterated in E Sivakumar v. Union of India and Ors.,(2018) 7 SCC 365 (2 Judge Bench).
64. The revisional power of the High Court, under Cr.P.C., is also extensive and as has been held by the Apex Court in Krishnan and Anr. v. Krishnaveni and Anr.,(1997) 4 SCC 241 (3 Judge Bench) that the High Court would be well within its right to call for the records and examine correctness, illegality or propriety of any order passed by the Court below. In fact in Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., (1998) 5 SCC 749 the Apex Court emphasized the use of such power for ascertaining as to whether the subordinate Courts/Tribunals functioned within the limits of its authority for ensuring that "stream of administration of justice remain clean and pure".
65. Further the Apex Court in Rajballav Prasad (supra) held as under:
"15. We may also, at this stage, refer to the judgment in the case of Puran v. Rambilas & Anr.[5], wherein principles while dealing with application for bail as well as petition for Page - 18 of 29 cancellation of bail were delineated and elaborated. Insofar as entertainment of application for bail is concerned, the Court pointed out that reasons must be recorded while granting the bail, but without discussion of merits and demerits of evidence. It was clarified that discussing evidence is totally different from giving reasons for a decision. This Court also pointed out that where order granting bail was passed by ignoring material evidence on record and without giving reasons, it would be perverse and contrary to the principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. This ground for cancellation, the Court held, is different from the ground that the accused misconducted himself or some new facts call for cancellation.
16. The present case falls in the former category as the appellant is not seeking cancellation of bail on the ground that the respondent misconducted himself after the grant of bail or new facts have emerged which warrant cancellation of bail. That would be a case where conduct or events based grant of bail are to be examined and considered. On the other hand, when order of grant of bail is challenged on the ground that grant of bail itself is given contrary to principles of law, while undertaking the judicial review of such an order, it needs to be examined as to whether there was arbitrary or wrong exercise of jurisdiction by the Court granting bail. If that be so, this Court has power to correct the same."
(emphasis supplied).
66. Hence this Court under Articles 226 & 227 of the Constitution of India as also the provisions of the Code of Criminal Procedure, has ample power to call for the records of the Court below and make correction of any illegality found while adjudicating applications for grant of bail."
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13. In the very same report, in para-16, 17 & 18 the Court has discussed the law with regard to the competing interest of the society and that of the accused in seeking bail; in para-19, 20 & 21 the menace of drugs; in para-22, 23, 24, 25 & 26 the factors to be kept in mind by the Courts while granting bail. Such paragraphs are reproduced as under:
"16. The Apex Court in State of Bihar v. Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav, (2017) 2 SCC 178 (2 Judge Bench), has elaborately discussed the rights and liberty of the under trial, when weighed with the interest of the society and fair trial of the case. By relying upon its earlier decisions rendered in Masroor v. State of Uttar Pradesh & Anr.,(2009) 14 SCC 286 (2 Judge Bench) and Neeru Yadav v.
State of Uttar Pradesh & Anr., (2014) 16 SCC 508 (2 Judge Bench), the Court clarified that there is no doubt about the liberty of an individual, which is very precious, to be zealously protected by the courts, but nonetheless, "such a protection cannot be absolute in every situation" for "the valuable right of liberty of an individual and the interest of the society in general has to be balanced" and that "liberty of a person accused of an offence would depend upon the exigencies of the case". Further "liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution." The Court further clarified that the sanctity of liberty is the fulcrum of any civilized society. It is a cardinal rule on which the civilization rests. It cannot be allowed to be paralyzed and immobilized. A democratic body Page - 20 of 29 polity which is wedded to the rule of law, anxiously guards such liberty. Further, "a pregnant and significant one, the liberty of an individual is not absolute" for "society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society, for society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow."
17. The Apex Court in Noor Aga v. The State of Punjab and Anr.,(2008) 16 SCC 417 (2 Judge Bench), has held that right of fair trial is the constitutional mandate of Art.21. Further, presumption of innocence of an accused is a human right concept and not a fundamental right guaranteed under Art.21.
18. However, all rights are subjected to constitutional safeguards, restriction and limitation, which the Apex Court in Ash Mohammad v. Shiv Raj Singh alias Lallababu and Anr.,(2012) 9 SCC 446 has explained in the following terms:
"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Page - 21 of 29 Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".
18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for nothing J. Oerter stated:
Page - 22 of 29 "Personal liberty is the right to act without interference within the limits of the law."
19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti- collective act."
19. The Apex Court in Union of India v. Ram Samujh and Anr.,(1999) 9 SCC 429 (2 Judge Bench), has reiterated its concern of the organized activities of the underworld and the clandestine smuggling of the narcotic drugs and psychotropic substances in India and illegal trafficking of such substances and the drug addiction amongst the sizeable section of the public, particularly the adolescents and students of both the sexes, having assumed menace of an alarming proportion.
20. Prior thereto, in Durand Didier v. Chief Secretary, Union Territory of Goa, (1990) 1 SCC 95 (2 Judge Bench), the Court had stated the reasons for imposition of mandatory minimum life imprisonment and fine with respect to certain category of cases of psychotropic substance. This was so done in order to effectively control and eradicate the "proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole".
21. Further in Bachpan Bachao Andolan v. Union of India and Ors., (2017) 1 SCC 653 observed that "the importance of adopting a holistic solution to deal with issues pertaining to alcohol, tobacco and drug abuse in the school curriculum has to be adequately emphasized. We are of the view that since the entire issue is pending consideration before the Government, it would be appropriate to await the ultimate formulation. However, we may Page - 23 of 29 indicate that rather than resting on an "implied inclusion" of such an important subject within an extant head or topic, it would be appropriate if the competent authorities consider how children should be protected from the dangers of substance abuse. These are matters which should not be brushed under the carpet. The authorities should consider how children should be sensitised (having due regard to the age and stage of the child) of the dangers of drug use, the necessity to report drug use and the need to develop resistance to prevailing peer and social pressures."
22. The Apex Court in State of Madhya Pradesh v. Kajad, (2001) 7 SCC 673 (2 Judge Bench), the Court while taking note of Section 37 of the Act held that "negation of bail is the rule and its grant an exception under Section 37 of the Act and for granting the bail the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail".
23. The position stands reiterated in Sami Ullaha v. Superintendent, Narcotic Central Bureau, (2008) 16 SCC 471 (2 Judge Bench) and Union of India v. Rattan Mallik alias Habul, (2009) 2 SCC 624 (2 Judge Bench) wherein the Apex Court further clarified that when a prosecution/conviction is for an offence under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, such provisions cannot be ignored while dealing with such an application and observed that :
"9. The broad principles which should weigh with the Court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court and, therefore, for the sake of brevity, Page - 24 of 29 we do not propose to reiterate the same. However, when a prosecution/ conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such an application."
24. The Apex Court in Narcotics Control Bureau v. Kishan Lal and Ors., (1991) 1 SCC 705(2 Judge Bench) has held that the powers of the High Court in granting bail under Section 439 Cr.P.C are subject to the limitations contained under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 and that the provisions of the Code of Criminal Procedure are excluded to the extent of conflict and the reason as stands noticed in Ram Samujh (supra) is to check the menace of dangerous drugs flooding the market. The Court while interfering with the order of grant of bail passed by the High Court observed as under:
"8. ........... The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio- economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the Court should implement the law in the spirit with which the Parliament, after due deliberation, has amended."
The interplay between procedural code i.e. Cr.P.C and a special statute i.e. NDPS Act came up for consideration before Apex Court in Union of India v. Thamisharasi and Ors., (1995) 4 SCC 190 (2 Judge Bench), wherein the Court categorically held Section 37 of the Act, to the extent it is inconsistent with the provisions of Section 437 of the Code of Criminal Procedure, to supersede the corresponding provisions in the Code imposing Page - 25 of 29 limitations on the right of grant of bail in addition to the limitations provided under the Code.
25. This Court in Case No.BA No.147/2018 titled as Rinku Das on behalf of Gobinda Das v. State of Tripura has already reiterated the settled principles of law and the need to comply with the same in the following terms:
"3. The principle for grant of bail under the Act stands fully settled. Starting from Narcotics Control Bureau Vs. Kishan Lal and Ors., (1991) 1 SCC 705; Union of India vs. Ram Samujh and another, (1999) 9 SCC 429; Collector of Customs, New Delhi vs. Ahmadalieva Nodira reported in (2004) 3 SCC 549; Sami Ullaha vs. Narcotic Central Bureau, (2008) 16 SCC 471; Union of India vs. Rattan Mallik alias Habul, (2009) 2 SCC 624 and most recently in Satpal Singh Vs. State of Punjab, (2018) 13 SCC 813 the Apex Court observed as under :
"3. Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent Page - 26 of 29 restrictions on the discretion available to the court while considering application for release of a person on bail. It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court."
(emphasis supplied).
4. Even this Court vide judgment dated 23rd July, 2018, in BA No.58/2018 titled as Sri Asis Sarkar on behalf of accused Sri Sudhir Sarkar Vs. The State of Tripura has reiterated strict adherence of such provisions and principles. In fact, it took note of the precarious situation prevalent with regard to illegal cultivation, production, trafficking and use of the contraband substance within the State of Tripura. The entire State appears to be engulfed in the cultivation of cannabis with the help of drug smugglers and mafias. Now fertile agricultural land appears to be used for cultivating ganja a psychotropic substance."
The twin conditions laid down in Section 37 of the Act are cumulative and not in the alternative, Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549 (3 Judge Bench).
26. What is the meaning of the words "reasonable grounds" stands explained by Apex Court in Rattan Mallik (supra); Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 (2 Judge Bench); Narcotics Control Bureau v. Dilip Prahlad Namade, (2004) 3 SCC 619 (2 Judge Bench) and Union of India and Anr. v. Sanjeev V. Deshpande,(2014) 13 SCC 1 (3 Judge Bench)."
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14. In view of the aforesaid, this Court finds orders granting interim bail dated 28.06.2018, 30.06.2018, 04.07.2018, 19.07.2018, 10.08.2018 & 21.08.2018 and regular bail dated 20.09.2018 to accused Amal Das to have been passed in violation of the mandatory provisions and as such, being illegal are quashed and set aside.
15. This Court does not find accused Amal Das to have satisfied the trial Court on the twin test principle laid down under Section 37 of the NDPS Act. There is no reasonable ground for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence till date. In fact, as the record reveals, he had defaulted to appear before the trial Court and the warrants were, for unassigned reasons, recalled. But then this Court may not be misunderstood to have expressed any opinion on the merits of the matter, for this Court has only considered the legality of the orders passed by the trial Court, leaving it open to the trial Court to consider fresh application for bail, if so filed, on its own merits.
16. Coming to the bail application of Shri Sushil Debbarma, the money being proceeds of sale of a house does not inspire confidence. Sushil Debbarma is a Government employee. Why would a Government servant keep such a huge amount of money in his own house? It is not his own house which he had sold. The house did not belong to his wife, nor did she have any share in the house of her sister. That apart, no registered document is placed Page - 28 of 29 on record, it being a different matter as to whether by virtue of the provisions of Section 269ST and 43 of the Income Tax Act such sale could have taken place in cash or not. Further who is the alleged purchaser? Why was the sale deed not registered? Why were the sale proceeds not transferred through proper banking channel? And why did a Government servant need to keep huge amount of money in his house? are all questions which remain unanswered by the accused and examined during trial. The challan has yet not been filed. Complicity of the accused Sushil Debbarma, at this stage, cannot be totally ruled out. After all, the entire family, i.e. his wife, her sisters and brother-in-law are allegedly involved in the trade of psychotropic substance. The accused are not engaged in business. Also they do not have landed property or have any other source of income so as to own or possess such huge amount of money in their house. The expression "reasonable ground" as contained under Section 37 of the NDPS Act stands explained by the Supreme Court when it means more than something prima facie ground, it contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence, which this Court finds itself to be unconvinced of the explanation furnished by the accused.
17. What is "possession" stands explained by the Apex Court in Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 and by virtue of Section 29 of the NDPS Act, simply because nothing was recovered from the possession of accused Sushil Page - 29 of 29 Debbarma, it cannot be allowed to be contended that no recovery was effected.
18. As such, for all the aforesaid reasons, the present Bail Application No.01/2019, titled as Smt. Mallika Debbarma on behalf of accused Sri Sushil Debbarma vs. The State of Tripura stands dismissed and the Criminal Petition No.08/2019, titled as Court on its own motion vs. Amal Das stands allowed and disposed of accordingly.
19. Bail bond of accused Amal Das stands cancelled and he shall surrender before the trial Court forthwith.
20. It is made clear that any observation made above, shall not be construed to be an expression/opinion on the merits of the case, for each case has to be dealt with, on its own merits and the trial Court shall decide the matter uninfluenced of the same.
Record be sent back immediately.
(SANJAY KAROL), CJ Pulak/Anjan