Tripura High Court
Smt. Rumpa Debnath(Bhowmik) vs The State Of Tripura on 4 September, 2020
Equivalent citations: AIRONLINE 2020 TRI 354
Author: Arindam Lodh
Bench: Arindam Lodh
Page 1 of 26
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
B.A. No. 71 of 2020
Smt. Rumpa Debnath(Bhowmik),
W/O Sri Jitendra Bhowmik of
Nandannagar Debnath Para, near
Auxillium School,
P.S. New Capital Complex,
District-West Tripura.
............Petitioner
On behalf of
Sri Jitendra Bhowmik,
S/O Late Manik Lal Bhowmik of
Nandannagar Debnath Para, near
Auxillium School,
P.S. New Capital Complex,
District-West Tripura.
.....Accused Person
-V E R S U S-
The State of Tripura
..... Respondent
BEFORE HON'BLE MR. JUSTICE ARINDAM LODH For petitioner(s) : Mr. S. Lodh, Advocate.
For Respondent(s) : Mr. Ratan Datta,. P.P.
Date of hearing : 16.07.2020
Date of judgment &
order : 04.09.2020
Whether fit for reporting: YES
JUDGMENT & ORDER
Heard Mr. S. Lodh, learned counsel appearing for the petitioner and Mr. R. Datta, learned P.P. appearing for the State-respondent.
Page 2 of 26[2] This is an application filed under Section 439 of CrPC, 1973 read with Section 37 of the Narcotic Drugs and Psychotropic Substances Act(NDPS Act, for short) for granting bail of the accused-person, namely, Jitendra Bhowmik, who was arrested on 24.01.2019 in connection with Special NDPS Case No.08 of 2019 under Sections 22(b)/27A/25/29 of the NDPS Act, and till now he is in custody.
[3] The relevant facts, necessary to be introduced for deciding the present bail application, are that the accused- person was arrested on 24.01.2019 at night, at about 2135 hours from the house of one Tutan Dey @ Manta of 79 Tilla, Agartala, West Tripura in connection with the above noted case as encrypted in the bail application.
The Duty Officer, NCC Police Station received an information from credible source that huge quantity of contraband drugs(heroin) was stored illegally in the house of one Tutan Dey, a resident within the jurisdiction of NCC police station. It was further disclosed by the source that the said Tutan Dey and his other partners were also present at that time, and if raid was not conducted instantly, in that case, they would dispose of or conceal the said contraband substances. The said Duty Officer after receipt of the information had shared the Page 3 of 26 same with the Addl. S.P.(Urban), West, SDPO, NCC P.S. as well as SP, West. Necessary G.D. entry was made vide NCC P.S. G.D. No.37 dated 24.01.2019.
[4] Thereafter, the police personnel including SDPO, NCC P.S. raided the house of Tutan Dey, where they also found Jitendra Bhowmik, the petitioner herein and Dipankar Das. During search operation, police personnel recovered contraband articles, weighing approximately 18.06 gms of heroin with 30 number of vials containing 0.04 gms, 7 numbers of mobile sets and cash amount of Rs.33,140/- and the same were seized. Tutan Dey including the present accused were arrested from the spot.
[5] Here, it is to be mentioned that after completion of investigation, I.O. submitted charge-sheet against all the accused-persons including the present accused-person, namely, Jitendra Bhowmik.
[6] After framing of charge on 16.02.2019, the wife of the present accused person, presented a bail application before this Court vide B.A. No. 104 of 2019 which was rejected on 27.09.2019 with a direction that the learned Special Judge Page 4 of 26 would frame charge immediately and complete the trial expeditiously.
[7] Charges were framed under Sections 22(b)/25 of NDPS Act against the present accused-person and calendar was fixed for examination of prosecution witnesses, w.e.f. 16.01.2020 to 22.01.2020. During that calendar, only one witness was examined and cross-examined. In the next calendar w.e.f. 25.02.2020 to 27.02.2020, only three witnesses were examined and cross-examined.
[8] In the charge-sheet, I.O. had cited 12 witnesses. Four witnesses, namely, Sri Dipankar Choudhury, PW-1, S.I. Shyamal Kanti Majumder, PW-2, Ezekiel Tripura, PW-3 and Smti. Anju Urang were examined and cross-examined. After their examination, trial could not be proceeded due to pandemic situation now prevailing in the entire State. [9] Mr. Lodh, learned counsel appearing for the accused- person has urged this bail application mainly on the following grounds:
(i) As the charge has been framed under Section 22(b) and Section 25 of the NDPS Act, the rigour of Section 37 of the NDPS Act is not applicable, only the Page 5 of 26 limitations/restrictions as embodied in Chapter XXXIII of Criminal Procedure Code(for short, CrPC) is applicable. In the instant case, since the accused-person has been in custody for about 1 year and 6 months, and there is no chance of progress of trial in near future, he is entitled to be released on bail;
(ii) One of the charge-sheeted co-accused, namely, Smti. P. Dey, has already been released on bail, and it has not been challenged in the higher forum;
(iii) Nothing was seized from the possession of the present accused person and/or no article of the present accused-person was seized by the police. From the alleged seizure list it transpires that the contraband articles were seized from the possession of Tatun Dey @ Manta. Till date nothing has come out to establish the involvement of the present accused-person. He went to the house of Tutan Dey to give tuition to the children of Tutan Dey when police raided and arrested him;
(iv) Mandatory provisions as contained under Sections 42 and 52 of the NDPS Act for search and seizure were violated;Page 6 of 26
(v) Section 41 of NDPS Act has no applicability in the instant case. The petitioner has enclosed the copy of the FIR along with complain, copy of the charge-sheet, deposition sheets of Sri Dipankar Chowdhury as PW-1, S.I. Shyamal Kanti Majumder as PW-2 and Ezekiel Tripura as PW-3 and Smti. Anju Urang as PW-4 for perusal of the same by this Court under Annexure-F of the petition;
(vi) There is no chance to complete the trial in the near future, the accused-person may be released on bail;
(vii) Finally, the instant bail application has been filed in the changed circumstances.
[10] Mr. Lodh, learned counsel has pressed into service the following citations:
i) Union of India Vs. Mohanlal & Anr., reported in (2016) 3 SCC 379 : 2016 STPL 232 SC [Criminal Appeal No.652 of 2012]
ii) Crl.A(J) No.21/2018 titled as Shri Tapash Saha Vs. The State of Tripura.
iii) Shri Goutam Dutta vs. The State of Tripura reported in 2017 CRI.L.J. 1297 : 2017 STPL 4316 Tripur[Crl.A(J) No.68 of 2015].Page 7 of 26
(iv) Karnal Singh Vs State of Haryana reported in 2009 AIR SCW 5265[Criminal Appeal No.36 of 2003].
(v) Rajender Singh Vs. State of Haryana reported in (2011) 8 SCC 130 : 2011 STPL 25409 SC[Criminal Appeal No.1051 of 2009].
(vi) State of Rajasthan Vs. Jag Raj Singh @ Hansa reported in (2016) 11 scc 687 : 2016 STPL 7351 SC[Criminal Appeal No.1233 of 2006].
[11] On the other hand, Mr. Ratan Datta, learned P.P. appearing for the State-respondent had argued with vehemence that the present bail application filed by the accused-person is devoid of any merit and is liable to be rejected. According to Mr. Datta, learned P.P. there was no violation of any of the provisions of the Act. Section 37 of the Act is well applicable in deciding the instant bail application. The information received by the duty officer of NCC P.S. was duly shared with the Addl. SP (Urban) West, SDPO, NCC P.S. as well as SP(Urban), West and was entered into G.D. The SDPO, NCC P.S. accompanied the I.O. for spot verification and in presence of SDPO, entry, search and seizure were conducted by SI Shyamal Kanti Majumder, who was superior in rank to a peon, sepoy or a constable. SDPO Page 8 of 26 being a gazetted officer put his signature in the seizure list by writing "seized in my presence".
[12] His further submission is that as per Section 41(2) of the NDPS Act, the information was reduced into writing in presence of SDPO. Under his instruction and observation, his subordinate officer, S.I. Shyamal Kanti Majumder had searched the house, seized the contraband goods. Referring to Section 41(2) of the NDPS Act, learned State-counsel submitted that an officer subordinate to a gazatted officer requires authorization to conduct search if gazetted officer wants him to conduct such search, but, when such search is itself conducted by a gazetted officer, there is no need for authorization from any other gazetted officer.
[13] Referring to the case of Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, reported in AIR 2003 SC 4311, learned State-counsel has submitted that Section 41(3) of the Act vests power to the officers acting under Section 42 and categorizes them into as-
(i) The officer to whom warrant is issued under Section 41(1).
(ii) The officer who is so authorized under Section 41(2). Page 9 of 26
Therefore, according to him, an empowered gazetted officer has also all the powers of Section 42 including power of seizure.
[14] Section 42 provides the procedure and power of entry, search, seizure and arrest without warrant or authorization. Learned State-counsel contended that under sub- section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a gazetted officer. But, on an officer empowered under sub- section(1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub- section(2) of Section 42. It is clear from the language of sub- section(2) of Section 42 that it applies to officer contemplated by sub-section(1) thereof and not to a gazetted officer contemplated by sub-section(2) of Section 41, when such gazetted officer himself makes an arrest or conducts search and seizure. He has further submitted that the Apex Court held that the High Court was right in concluding that Section 42(2) is not applicable when search, seizure is conducted by a gazetted officer under Section 41(2) and (3) and being observed thus, the conviction of the accused-appellant was sustained. Page 10 of 26 [15] Learned P.P. has relied upon the following judgments:-
(i) Union of India v. Satrohan, reported in (2008) 8 SCC 313; (ii) G. Srinivas Gaud v. State of A.P., reported in AIR 2005 SC 3647; (iii) Sudhir Sarkar v. State of Tripura, reported in (2018) TLR 483 (BA. No. 58 of 2018); (iv) Sujit Dhar v. State of Tripura in AB. No. 39 of 2015; (v) Karnail Singh v. State of Hariyana, reported in (2009) 8 SCC 539(Constitution Bench); (vi) Goutam Datta v. State of Tripura, reported in (2017) 1 TLR 90 and (vii) Union of India v. Ram Samujh and Ors., reported in 1999 (9) SCC
429.
[16] Next, the learned P.P. has submitted that this Court has the power to alter the charge and add Section 27A of the NDPS Act to attract the provision of Section 37 of NDPS Act. [17] Next, Mr. Datta, learned P.P. has urged that filing of successive bail application is not permissible, unless there is change in circumstances, relying upon the case of Haricharan Biswas v. State Tripura, reported in (2018) 2 TLR 733. Lastly, he has submitted that the vital witnesses i.e. the SDPO, NCC P.S. and the Duty Officer[HWC(UB) Bipin Debbarma] of Page 11 of 26 NCC P.S., I.O. and the reporting officer were yet to be examined.
[18] I have considered the submissions of the learned counsel appearing for the parties to the lis and the judgments relied upon by them. Taking into account all the submissions of the learned counsels for the parties, following two principal points fall for consideration:
(a) Whether a person accused of committing an offence under the penal provisions of the NDPS Act is entitled to the benefits of bail due to procedural defects or irregularities; and
(b) Whether the accused person can be released on bail if the offence which he/she allegedly commits as is found in the charge-sheet does not suffer the rigour of Section 37 of NDPS Act.
[19] The relevant provisions may be extracted hereunder, for convenience:-
"41. Power to issue warrant and authorisation.--(1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether Page 12 of 26 by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed.
(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-
military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or Page 13 of 26 the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42.
42. Power of entry, search, seizure and arrest without warrant or authorisation.--(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--a --
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the Page 14 of 26 commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
52. Disposal of persons arrested and articles seized.--(1) Any officer arresting a person under section 41, section 42 section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
Page 15 of 26
(3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to--
(a) the officer-in-charge of the nearest police station, or
(b) the officer empowered under section 53.
(4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article." For purpose of reference, Section 37 of the NDPS Act may also be reproduced herein below:
"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 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.Page 16 of 26
(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."
[20] The controversy in regard to the point No.1 as raised above is already settled by a catena of decisions of this Court, as also of the Apex Court. The learned Single Judge in the case of Haricharan Biswas and another v. The State of Tripura, reported in (2018) 2 TLR 733 had observed thus[TLR, P-752 Para-25]:
"NECESSARY COMPLIANCE OF SECTION 37 OF THE NDPS ACT :
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 Page 17 of 26 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 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).
Page 18 of 26[21] Having due regard to aforesaid settled principles in regard to granting of bail to an accused booked under the NDPS Act, I am of the opinion that procedural defects or irregularities in course of investigation shall not be considered as fatal entitling the benefit of bail to the person accused of committing offence under the penal provisions of NDPS Act.
[emphasis supplied] [22] In the instant case, the learned counsels appearing for the parties have tried to persuade this Court that charge- sheet has been filed, charges have been framed and four witnesses have already been examined wherefrom it transpires that there is total non-compliance of the mandatory provisions of Section 42 of the NDPS Act. I am not unmindful to the submission of learned counsel appearing for the State- respondent that vital witnesses, like SDPO of NCC P.S., the Duty Officer[HWC(UB)] Bipin Debbarma of NCC P.S., I.O. and the reporting officer were yet to be examined.
[23] I find force in the submission of learned P.P. appearing for the respondent-State for the reason that any finding in this regard of this Court will definitely hamper the trial and this will definitely result into the matter being prejudged at Page 19 of 26 the stage of consideration for bail despite the fact that four witnesses in the case in hand have already been examined and cross-examined, and in my conscious view, it is the learned trial judge to decide the question of legality and validity of compliance or non-compliance of the procedural aspects of the concerned provisions as raised by the learned counsel to decide the sustainability of the charge framed against the accused petitioner.
[24] Next, coming to the controversy raised at point No.2 as to whether a person who has not been charged for committing offence punishable under Section 19 or Section 24 or Section 27A and also for offence involving commercial quantity, should suffer a rigour of Section 37 of NDPS Act and be considered for bail after submission of charge-sheet and particularly, when charge has been framed against him. [25] In the case in hand, the accused person has been charged under Sections 22(b)/25 of the NDPS Act. For purpose of reference, Section 22(b) and Section 25 of the NDPS Act may be reproduced hereunder:
"22. Punishment for contravention in relation to psychotropic substances.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of Page 20 of 26 licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,--
(a) *** *** *** *** *** ****
(b) Where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) *** *** *** *** *** ****
25. Punishment for allowing premises, etc., to be used for commission of an offence.--Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence."
[26] The charge framed by the learned Special Judge after considering the materials as revealed from the charge-sheet clearly manifests that the present accused-person has not committed any offence punishable for offence under Section 19 or Section 24 or Section 27A and also for offence involving commercial quantity.
[27] A plain reading of Section 37 of the NDPS Act and the language employed therein clearly manifest that the Legislature while introducing the provision of Section 37 of the NDPS Act had taken into notice the extent and gravity of the offences Page 21 of 26 punishable under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity. It was not the fact that the makers of law were unaware of other penal provisions prescribed in the statute but had intended not to bring those penal provisions under the umbrella of Section 37 of the NDPS Act and restricted themselves within the provisions and circumstances as specifically mentioned therein. In my opinion, the language used in a statute and literal meaning thereof, is the determinative factor of legislative intention. The intention of the Legislature is found in the words used by the Legislature itself. The question is not what may be supposed to have been intended, but, what has been stated expressly. [Ref.- Henrietta Muir Edwards v. A.G. of Kanada, AIR 1930 PC 120, p.126; WazirChand Mahajan v. Union of India, AIR 1967 SC 990, p.992 : 1967(1) SCR 303; Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg, (1975) 1 All ER 810, p.814(HL)(Lord REID)].
In my further considered view, it is not the duty of judges to invent something more which the Legislature did not meet within the words of the text, more particularly, when the language in such text is clear and unambiguous. The courts are not to busy themselves with "supposed intention" [Pakala Page 22 of 26 Narayan Swami v. Emperor, AIR 1939 PC 47, p.51]; Bola v. B.D. Sardana, AIR 1997 SC 3127, pp. 3208, 3209 : (1997) 8 SCC 522 or with "the policy underlying the statute" [Sardar Gurmej Singh v. Sarder Pratap Singh Kairon, AIR 1960 SC 122, p.128 : 1960(1) SCR 909; Bola v. Sardana, supra].
While bringing the amendment inserting the provision of Section 37 w.e.f. 02.10.2001 by Act 9 of 2001, Section 16, the law makers with all certainty had noticed the distinction in imposing punishments under Section 19, Section 24 or Section 27A wherein the punishments for these offences were prescribed to suffer rigorous imprisonment which shall not be less than 10 years which may extend to 20 years along with fine which shall not be less than one lakh rupees and may be extended to two lakh rupees or more than this amount for reasons to be recorded in the judgment. Compared thereto, Section 22(b) prescribes punishment to suffer rigorous imprisonment for a term which may extend to 10 years, and with fine which may extend to one lakh rupees. From the nature of punishments as prescribed for various offences the Legislators, in their own wisdom, in my opinion, had classified various offences into two categories considering the extent of gravity of the offence and with that object in view intentionally Page 23 of 26 did not incorporate Section 22(b) and Section 25 of the NDPS Act in the text of Section 37 of the NDPS Act and kept these provisions outside the purview of the said stringent legislation. [28] In the above backdrop, in my view, the alleged offence of the accused-person is saved from the rigour of Section 37 of the NDPS Act and the present bail application filed by him at the stage of trial should be decided within the ambit of the provision embodied in Chapter XXXIII of CrPC keeping in mind the limitation contained therein.
[emphasis supplied] [29] True it is, the charge-sheet was submitted under Sections 22(b)/27-A/29/25 of NDPS Act. However, the charge was framed under Sections 22(b)/25 of NDPS Act against the present accused-person after hearing the State counsel as well as the counsel appearing for the accused-person. The learned Special Judge after due consideration of the submissions of the learned counsel appearing for the parties and the materials on record, had framed the charges against the present accused- person under Section 22(b) and Section 25 of the NDPS Act by way of passing a specific order. The State did not think it necessary to challenge the charge as framed against the Page 24 of 26 accused-person by the learned trial Judge and accepting the same had allowed the learned Judge to proceed with the trial and four witnesses were examined at the instance of the prosecution. There was no prayer on behalf of the State to add Section 27-A of the NDPS Act, against the accused-person. As such, the submission of the learned P.P. appearing for the State-respondent that this Court may alter and add Section 27- A, deserves no merit for consideration. This Court accepts the submission of the learned counsel appearing for the accused- person that the present bail application filed on behalf of the accused-person may be decided considering the limitations contained in Chapter-XXXIII of CrPC which deals with the provisions as to bail and bonds.
(underlined for emphasis) [30] The accused has been in custody for one year and six months and also a private tutor. The earlier bail application was filed by the accused-person after framing of charge, and the bail application in hand has been filed after the trial is commenced when four witnesses have been examined. As such, there is change in circumstance. Further, at this stage, there is no chance of tempering the evidence. Learned counsel for the petitioner has submitted that the accused shall not evade the Page 25 of 26 trial and will attend on each and every dates as would be fixed by the learned trial Judge and he may be released on any terms and conditions imposed by this Court. More so, due to present pandemic situation on account of COVID-19 virus, I cannot foresee the resumption of trial shortly [31] Having regard to the factual and legal aspects as analysed above, I am inclined to hold that the present bail application filed by the petitioner on behalf of accused-person should not face the rigour of Section 37 of NDPS Act and can well be considered within the provisions of Chapter XXXIII of the CrPC. Accordingly, the accused-person, namely Shri Jitendra Bhowmik shall be released on bail by furnishing a bail bond of Rs.2,00,000/-(Rupees two lakhs) with two sureties of the like amount to the satisfaction of the learned Special Judge, West Tripura, Agartala.
[32] However, the following conditions would be imposed upon the accused-person, Sri Jitendra Bhowmik:-
(i) He shall not leave the jurisdiction of the court of learned Special Judge without prior permission of Ld. Special Judge;Page 26 of 26
(ii) He shall not evade the trial and shall not try to influence the evidence of the case; and
(iii) He will appear before the learned trial court on each and every dates as would be fixed by the learned court to proceed with the trial.
[33] Accordingly, the bail application in hand stands allowed in the above terms. It is made clear that if any of the aforesaid conditions is violated, the benefit of bail in favour of the accused person would be cancelled. It is to be mentioned herein that the observations made herein, shall not construe the case on merits to proceed with the trial and to arrive at a logical conclusion of the case.
JUDGE A.Ghosh