Tripura High Court
Parvej Ahamed vs The State Of Tripura on 25 March, 2019
Equivalent citations: AIRONLINE 2019 TRI 55, 2019 CRI LJ (NOC) 555
Author: Sanjay Karol
Bench: Sanjay Karol
Page - 1 of 16
HIGH COURT OF TRIPURA
AGARTALA
B.A. No.154/2018
Parvej Ahamed, S/O. Late Ali Aswab, resident of Dhaliai, P.O. &
P.S.- Sonamura, District-Sepahijala.
.... Applicant on behalf of the accused.
Golam alias Golap Hossen, S/O. Late Abdul Goni, resident of:-
Rangamati, Ward No.3, P.S.:-Sonamura, District-Sepahijala,
Tripura.
---- Accused(s).
Versus
The State of Tripura, Represented by the Secretary to the
Government of Tripura, Home Department, Agartala.
---- Respondent(s).
For Applicant(s) : Mr. Sankar Lodh, Advocate,
Mr. Raju Datta, Advocate,
Mr. D.P. Ghosh, Advocate.
For Respondent(s) : Mr. Babul Choudhury, P.P.
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
Date of hearing and judgment : 25th March, 2019.
Whether fit for reporting :
Yes No
√
JUDGMENT(ORAL)
After the matter was heard extensively for some time, in fact for more than an hour, prima facie finding the Court not to agree with the bail applicant, learned counsel did pray for withdrawal of the bail application, which request was turned down for it would have resulted into abuse of process of law.
2. On 20.05.2018, on the basis of report submitted by Sub-Inspector of Police Station (In-charge), Kakraban, District-
Page - 2 of 16 Gomati, Tripura, F.I.R. No.2018/KKB/075 dated 20.05.2018 was registered at Police Station-Kakraban under Section 120(B) of Indian Penal Code and Sections 20(b)/20(c)/22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).
3. Briefly stated, it is alleged in the complaint that one Dhruba Manik Jamatia, who is engaged in the business of selling of Phensedyl, ganja etc. has kept the said substance in a vehicle parked at a place falling within the territorial jurisdiction of the said police station and if search and seizure operations are not carried out promptly, there is apprehension of the goods being taken away. Resultantly, by associating two witnesses, raid was conducted and 28 bags containing 7945 bottles of Phensedyl and 3 packets containing 5 Kgs. + 1.5 Kgs. + 500 gm=7 Kgs. of dry ganja was recovered.
4. This case has had a chequered history insofar as filing/ initiation of proceedings in relation to the grant/rejection of bail by various Courts of Tripura is concerned.
5. The prime accused Dhruba Manik Jamatia filed an application seeking pre-arrest bail, being A.B. No.61/2018, titled as Sri Dhruba Manik Jamatia vs. The State of Tripura, which was allowed by learned Single Judge of this Court vide order dated 27.06.2018. Seeking cancellation of the said order, the State filed a petition being Criminal Petition No.42/2018, titled as The State Page - 3 of 16 of Tripura vs. Shri Dhruba Manik Jamatia which was dismissed vide order dated 27.08.2018.
6. It is brought to the notice of this Court that assailing the said orders, the State has preferred a Special Leave Petition which is yet pending consideration before Hon'ble the Supreme Court of India. Here only it stands clarified that the Court has referred to the said orders only for the limited purpose of highlighting the several proceedings initiated by several persons/ parties in relation to the very same F.I.R. and nothing more than that.
7. Another accused Shyamal Das preferred a separate petition seeking pre-arrest bail which was registered as A.B. No.67/2018, titled as Sri Shyamal Das vs. The State of Tripura and vide order dated 05.07.2018, another learned Single Judge of this Court granted interim relief, but it appears that the said accused already stood arrested at Kolkata and as such, the petition having become infructuous was dismissed on 09.07.2018. This Court is informed that prior thereto, i.e. on 07.07.2018, on production of accused Shyamal Das, the trial Court granted interim bail which was subsequently cancelled on 09.08.2018, whereafter till 04.02.2019, he continued to be in jail and was released only for the reason that police was not able to complete the investigation and the trial Court, on what is commonly termed as the principle of "default bail", released the said accused.
Page - 4 of 16
8. Coming to the instant case, one finds that another accused Golam alias Golap Hossen, who was arrested on 13.10.2018, filed the instant bail application under Section 439 of Cr.P.C. in which notice was issued to the State.
9. Order sheet dated 04.02.2019 reveals that the learned counsel appearing for the instant bail applicant, sought support and parity of the benefit of the order passed in the case of Dhruba Manik Jamatia. However, today, the stand taken is different. The bail application is pressed not on the strength but independent of the orders passed by this Court in the case of bail applicant Dhruba Manik Jamatia. Learned counsel for the bail applicant reiterates that no parity is sought.
10. Sri Sankar Lodh, learned counsel for the bail applicant, ably assisted by Sri Raju Datta and Sri D.P. Ghosh, learned counsel, has made the following submissions:
(a) Accused stands falsely implicated with the record being manufactured by the police; (b) No recovery was ever effected from the accused; & (c) Accused is innocent having roots in the society and he stands arrested solely on the statement of Shyamal Das which as per the record made available to the trial Court, was perhaps recorded for the first time on 15.10.2018.
11. Sri Babul Choudhury, learned Public Prosecutor, vehemently opposes the bail application. Also he has taken the Court through the case diary.
Page - 5 of 16
12. Having heard learned counsel for the parties and given thoughtful consideration, this Court is not inclined to allow the instant bail application.
13. Case diary reveals that police has recorded several statements of accused Shyamal Das. It is not the law that only such part of that statement which is made during the course of police remand can be referred to and relied upon by the investigating agencies for carrying out further investigation. Record reveals that on 13.08.2018 and 01.09.2018 itself, name of accused Golam alias Golap Hossen had surfaced indicating not only his, but also involvement of others in the crime. Police, in the instant case, has unearthed a racket, an organized one, carried out by several persons, of procuring, storing, transporting the contraband substance, i.e. Phensedyl and ganja not only within the State of Tripura but across the international border to Bangladesh. The kingpin being, as the learned Public Prosecutor wants the Court to believe, Dhruba Manik Jamatia and Shyamal Das. The role ascribed to the present bail applicant is sale of Phensedyl by him.
14. Sri Lodh, learned counsel, points out the contradictions in the prosecution story. He states that somewhere the police wants the Court to believe that the vehicle of Dhruba Manik Jamatia was parked near the school, whereas in the seizure list it is reflected to be his courtyard. Well, it has not come on record as to whether house of Dhruba Manik Jamatia is adjacent to the Page - 6 of 16 school or not. In any event, it is a question of trial and this Court does not make any observation with regard thereto. For ex facie, it does not render the prosecution version to be false. To contend that no recovery was effected from the accused, hence rigors of Section 37 of the NDPS Act would not apply, is, in the considered view of the Court, a statement legally untenable.
15. It cannot be said that police has manufactured the record and accused stands falsely implicated. Also there is statement of the said accused, indicating, prima facie, his involvement in the organized crime. Police had no reason or basis to falsely implicate him. Also there is no contemporaneous record even remotely suggesting much less prima facie indicating the same.
16. At this juncture, one cannot forget the background of the accused as is evident from the record. Case diary does establish his involvement in relation to a crime of similar nature, which was way back in the year 2014. An F.I.R. No.09/2014 dated 10.01.2014 was registered at Police Station Kailashahar under the provisions of the NDPS Act. Also another F.I.R. No.110/2007 dated 20.10.2007 was registered at Police Station Sonamura in connection with the murder of driver Babul Miah (Section 302 of IPC). When interrogated, the accused revealed all these facts as also involvement of all the accused persons including his in the instant crime. It is in this backdrop, this Court finds itself not to be persuaded by an interim order of bail, relied upon by Sri Lodh, Page - 7 of 16 granted in the case of bail application being B.A. No.04/2019, titled as Smt. Soma Deb on behalf of accused Sri Babul Deb vs. The State of Tripura, which, in any event, is clearly distinguishable for in that case the total contraband substance involved was 110 bottles of Phensedyl and save and except for one solitary phone call indicating the accused and the statement of one person which was sought to be resiled by moving an application for the concerned Magistrate, there was nothing on record to detain the accused. The interim bail was thus granted in the attending facts and circumstances pending consideration of what the prosecutor was to argue further.
17. 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 law with regard to grant of bail in cases under the provisions of the NDPS Act. The Court has considered that in one year itself, i.e. 2018, more than 65,000 Kgs. of cannabis/ganja; 1,88,099 bottles of cough syrup; 3 Kgs. of Heroin and 2,79,719 tablets of Yaba, contraband substance was recovered by the police. In relation to the said crime, for one reason or the other, accused stand released on bail. In the said case, competing interest of the society and the right and liberty of the accused stands considered by the Court in the following terms:
"16. The Apex Court in State of Bihar v. Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav, Page - 8 of 16 (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 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 Page - 9 of 16 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 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 Page - 10 of 16 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:
"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."
Page - 11 of 16
18. The menace of drugs stands considered in the following terms:
"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 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 Page - 12 of 16 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."
19. Considering the law laid down in Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222, the Court clarified the word "possession" to mean as under:
"57. The Apex Court in Mohan Lal (supra) has clarified the meaning of the word "possession" under the Act. It need not be actual or physical for it can be constructive or otherwise. Sections 28, 29 & 30 of the Act account for circumstances in cases where either there is an attempt, abetment and conspiracy or preparation for commission of crime under the Act."
20. What are the factors which are required to be kept in mind while granting bail also stand considered. Undoubtedly, rigors of Section 37 of the NDPS Act need to be considered and complied with stands discussed in the following terms:
"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 Page - 13 of 16 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 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 Page - 14 of 16 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 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 Page - 15 of 16 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).
27. The expression "reasonable grounds" contained in Section 37 has been explained to mean something more than prima facie ground. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. Also the word "reasonable" signifies in accordance with reason and that it would be only in the ultimate analyses being a question of fact whether a particular Act is reasonable or not would be dependent on the given facts and circumstances."
21. In view of the aforesaid statement of law, when applied to the given facts, this Court does not find itself to be persuaded in allowing the application for grant of bail. The twin test and more so, the second one certainly cannot be said to have been made out in this case.
Page - 16 of 16
22. As such, for all the aforesaid grounds, the present Bail Application No.154/2018, titled as Parvej Ahamed on behalf of accused Golam alias Golap Hossen vs. The State of Tripura stands dismissed.
23. 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.
(SANJAY KAROL), CJ Pulak