Calcutta High Court (Appellete Side)
Court In Its Own Motion vs Soumik Mukherjee & Anr on 26 March, 2019
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
26.03.2019
Sl. No.
Ct-42.
C.R.M. 616 of 2019
With
C.R.R. 309 of 2019
In re: In respect of the Rule issued on 15.01.2019 thereby
showing cause upon Soumik Mukherjee and Mriganko Banerjee
as to why the orders dated 27.11.2018 and 17.12.2018 granting
bail/ interim bail be not cancelled .
And
In the matter of:
Court in its own motion
.....Petitioner
-Vs-
Soumik Mukherjee & Anr.
......Opposite Party
Mr. Sanjay Bardhan
Mr. Kaushik Biswas
................For the State
Mr. Biswajit Hazra
Mr. Arif Mahammad Khan
......For the ccused/opposite Parties
This Court by an order dated 15.01.2019 in course
of hearing the bail application of one Kaustav Kar in CRM 616
of 2019 was pleased to issue a Rule calling upon accused
Soumik Mukherjee and Mriganko Banerjee to show-cause as
to why the orders dated 27.11.2018 and 17.12.2018 granting
bail/interim bail be not cancelled.
1
A report has been received from the office of the
Superintendent (Criminal Section), High Court (A.S.), Calcutta
which reflects that notice issued in respect of Rule were
received by the Accused Soumik Mukherjee and Mriganko
Banerjee. Accordingly one Mr. Biswajit Hazra, Learned
Advocate appeared on behalf of the accused persons namely
Soumik Mukherjee and Mriganko Banerjee on 05.03.2019.
The Learned Advocate also filed affidavit-in-reply on behalf of
the accused Mriganko Banerjee and he also sought time for
filing affidavit for the Accused Soumik Mukherjee. The State
also prayed for time for filing Affidavit. On 05.03.2019 this
Court granted time to the State as also the Accused Soumik
Mukherjee as last chance and fixed the date on 19.03.2019 for
hearing. On 19.03.2019 State filed an Affidavit, however no
Affidavit was filed on behalf of Soumik Mukherjee. This Court
thereafter proceeded to hear out the matter.
The main thrust of argument by Mr. Biswajit Hazra
appearing for the accused persons, namely Mriganko Banerjee
and Soumik Mukherjee is that the Learned special court has
in respect of each orders justified its reasons, heard the
learned Public Prosecutor, distinguished that the provisions of
Section 37 of The NDPS Act, 1985 are not attracted and
further the accused persons while on bail did not misuse
their liberty. The Learned Lawyer also relied upon Mohan Lal -
vs- State of Rajasthan 2015 SAR (Criminal) 770 and drew the
attention of this Court to paragraph 9.
The Learned Lawyer for the State submitted that the
investigation of the case would clearly reflect that there was
joint possession in respect of the contraband so seized i.e.
18.5 gms of MDMA and 1 gm LSD which is above commercial
2
quantity and so the provisions of Section 37 of the NDPS Act,
1985 are attracted. Further the accused persons suppressed
their bail being rejected by the Hon'ble High Court vide order
dated 11.10.2018 in CRM No.9251 of 2018 and the order of
interim bail in respect of Mriganko Banerjee is on
compassionate grounds grossly ignoring the provisions of
Section 37 of the NDPS Act, 1985.
It is seen from the records of the case that the Learned
Special Court granted bail to the accused Soumik Mukherjee
on 27.11.2018 by invoking the provisions of Section 167 (2) of
the Code of Criminal Procedure holding that only 2 gms
MDMA were recovered from Soumik Mukherjee and the
accused is in custody for 160 days. The Learned Special Court
further observed that as the recovery was below commercial
quantity and the investigating agency has failed to file the
charge-sheet within the statutory period, the accused Soumik
Mukherjee is entitled to bail. It is further seen from the
records of the case that by order dated 17.12.2018 the learned
Special Court granted interim bail to the accused Mriganko
Banerjee only on the consideration that his mother was a
cancer patient who expired on that day.
That before proceeding further we would like to observe
that in CRM 616 of 2019 this Court has already arrived at
the following finding:
"The materials in the case diary including the seizure
list dated 28.06.2018 wherein we find that from the room
(mezzanine floor) of the house of one Mriganko Banerjee at
5/10 Vivek Nagar, PS. Jadavpur, Kolkata-700075, 2(two) gms
of MDMA, 34 pieces of LSD weighing about 1 gm were seized
from Soumik Mukherjee, 14 gms MDMA and MDMA pills
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weighing 1.5 gm were seized from Mrignako Banerjee and 1
gm MDMA were seized from Koustav Kar.
The aforesaid seizure being made from
possession of the 3 accused persons, the contraband so seized
can be said to be of commercial quantity under the provisions
of the NDPS Act. Accordingly the rigors of Section 37 of NDPS
Act are attracted, and the petitioner therefore is not entitled to
bail."
In addition to the above we would further like to hold
that while grating bail to the accused Soumik Mukherjee vide
order dated 27.11.2018 the Learned Special court ignored the
provisions of Section 29 of the NDPS Act as also the concept of
presumption under Section 35 of the NDPS Act. The factual
scenario in this case therefore distinguishes it from the
conclusion arrived at in Mohal Lal's Case (Supra) relied upon
by the Learned Lawyer of the accused. So far as the order
dated 17.12.2018 is concerned the Learned Special Court
ignored the fact that not only 18.5 gms MDMA and 1 gm LSD
was recovered from the joint possession of the three accused
persons but also 2 gms of MDMA, 34 pieces of LSD weighing
about one gm was recovered from Soumik Mukherjee and 14
gms of MDMA and 1.5 gms MDMA pills were recovered from
Mriganko Banerjee. In the notification specifying small
quantity and commercial quantity in respect of LSD it is found
that 0.1 gm is the commercial quantity for LSD and 10 gms is
the commercial quantity from MDMA. The order dated
27.11.2018passed by the learned Special Court reflects that the learned Special Court restricted its finding only in respect of MDMA and ignored the seizure of 1 gm LSD (commercial 4 quantity) which was seized from the possession of the accused Soumik Mukherjee. In the order dated 17.12.2018 the learned Court in fact did not take into consideration what was the seizure of contraband in respect of the accused Mriganko Banerjee and whether the provisions of Section 37 of the NDPS Act would be applicable or not.
So far as the order dated 27.11.2018 is concerned the learned Court erroneously observed that the contraband seized was below commercial quantity without perusing the seizure list dated 28.06.2018. As the recovery relates to commercial quantity the learned Court should have adverted to Section 36 A (4) of the NDPS Act, 1985 wherein it is specified that in case of offence punishable involving commercial quantity referred to in Sub-section 2 of Section 167 of the Code of Criminal Procedure it would be "one hundred and eighty days".
In the order dated 27.11.2018 the learned Special Court holding that the recovery was below commercial quantity and accused Soumik Banerjee being in custody for 160 days granted him default bail by invoking the provisions of Section 167 (2) as the charge-sheet was not filed within the statutory period. This finding of the learned Special Court is against the material on records and as such the order passed therein is perverse order and therefore is liable to be set aside. In the order dated 17.12.2018 the learned Special Court did not take at all into consideration the quantity of contraband seized from the accused which is 14 gms MDMA 1.5 gm of and MDMA pills which were recovered from Mriganko Banerjee. Ignoring the notification specifying small quantity and commercial quantity and failed to take into account 5 provisions of law so far as bail in cases under the NDPS Act, 1985 is concerned.
This Court on perusal of the orders dated 27.11.2018 and 17.12.2018 finds that the learned Special Court in both the orders ignored the provisions of 37 NDPS Act which empowers a Court to grant bail in cases where offence involving commercial quantity is involved only on two conditions, firstly when there are reasonable grounds for believing that the accoused is not guilty of such offence and secondly the accused while on bail is not likely to commit such offence. The aforesaid conditions not being taken into consideration by the learned Special Court makes the orders dated 27.11.2018 and 17.12.2018 illegal and without any foundation of law and therefore, is liable to be set aside. Accordingly the bail order dated 27.11.2018 passed by the learned Special Court in respect of the accused Soumik Mukherjee stands cancelled and he is directed to surrender before the learned Special court immediately. So far as the order dated 17.12.2018 passed by the learned special court granting interim bail to the accused Mriganko Banerjee is concerned the said order releasing the accused is also cancelled and the accused Mriganko Banerjee is directed to surrender immediately.
If the accused persons namely Soumik Mukherjee and Mriganko Banerjee do not surrender within next 7 days from the date of communication of this order, the learned Special court will be at liberty to exhaust the process of law 6 thereby compelling the accused persons to appear before the learned Special court.
The order issuing rule dated 15.01.2019 by this Court is made absolute.
C.R.M. 616 of 2019 with C.R.R. 309 of 2019 is disposed of in terms of the orders under herein above.
Department is directed to communicate this order to the Learned Judge, Bench I City sessions Court, Kolkata (NDPS).
(Md. Mumtaz Khan, J.) (Tirthankar Ghosh, J.) 7 26.03.2019 Sl. No. Ct-42.
Rejected C.R.M. 616 of 2019 In re: An application under Section 439 of the Code of criminal Procedure, 1973 in connection with Burtolla Police Station/Detective department Case No. 99 of 2018 dated 22.06.2018 under Section 22 (C) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
And In the matter of:
Kaustav Kar .....Petitioner
-Vs-
The State of West Bengal ......Opposite Party Mr. Arindam Jana .... For the petitioner.
Mr. Sanjoy Bardhan Mr. Kaushik Biswas ................For the State This is the case under Section 22(C)/29 of the NDPS Act. The Learned Lawyer for the petitioner submits that the petitioner is in custody since 28th of June 2018 and accused persons similarly placed have been granted bail by the Learned Special Court. The Learned Lawyer contends that only one gm MDMA was seized from the petitioner. 8 Considering the period of detention and that similarly placed accused have been released on bail he prays that the petitioner may be released on bail on any stringent conditions.
The Learned lawyer for the State opposes the prayer for bail and submits that the case involves recovery from the joint possession of number of accused persons. In fact in connection with the instant case 18.5 gms of MDMA and 34 pieces of LSD blots weighing about 1 gm were seized from the joint possession of three accused persons and as such he prays for rejecting the application for bail.
We have considered the materials in the case diary including the seizure list dated 28.06.2018 wherein we find that from the room (mezzanine floor) of the house of one Mriganko Banerjee at 5/10 Vivek Nagar, PS. Jadavpur, Kolkata-700075, 2 gms of MDMA, 34 pieces of LSD weighing about 1 gm were seized from Soumik Mukherjee, 14 gms MDMA and MDMA pills weighing 1.5 gm were seized from Mriganko Banerjee and 1 gm MDMA were seized from Koustav Kar.
The aforesaid seizure being made from possession of the 3 accused persons, the contraband so seized can be said to be of commercial quantity under the provisions of the NDPS Act. Accordingly the rigors of Section 37 of NDPS Act are attracted, and the petitioner therefore is not entitled to bail.
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The bail application is therefore rejected.
With the aforesaid observations CRM 616 of 2019 is disposed of.
(Md. Mumtaz Khan, J.) (Tirthankar Ghosh, J.) 10