Calcutta High Court (Appellete Side)
In Re:- Bhairon Singh Parihar @ Bhairon ... vs Re: An Application For Bail Under ... on 3 May, 2016
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 17 3.5.2016
p.d. C.R.M. No. 3071 of 2016 In re:- Bhairon Singh Parihar @ Bhairon Singh @ Bheru Singh ... Petitioner.
-And-
Re: An application for bail under Section 439 Cr.P.C. affirmed on 19.4.2016 in connection with N.D.P.S. Case No.117 of 2002 arising out of NCB Crime No.14/NCB/CAL/2292 under Sections 21 ( c ) / 29 of the Narcotic Drugs & Psychotropic Substances Act.
Mr. Sekhar Kumar Basu, Mr. Syed Mansur Ali, Mr. Navanil De, Mr. Mirza Kayesh Begg, Mr. Tauhid Khan ... For the petitioner.
Mr. Pratick Dhar, Mr. Abdur Rahaman ... For the N.C.B. On October 10, 2002, acting on a source information, the officers of the N.C.B. apprehended one Ansar Rahaman and from his possession, 3.5 Kgs. of Heroin was recovered.
From the statement of the said co-accused Ansar Rahaman recorded under Section 67 of the N.D.P.S. Act, it transpires that he purchased the said contraband from one Ashok Jain and the petitioner, Bhairon Singh Parihar @ Bhairon Singh @ Bheru Singh. In the said statement, besides that, other materials were disclosed and when the same was worked out, one Dipak Giri was arrested and from him possession, 50 Kgs. of Heroin was recovered and according to said Dipak Giri, such contraband was purchased by him from the said Ansar Rahaman. Already the trial of Ansar Rahaman and Dipak Giri 2 has been concluded and in the said trial, while Ansar Rahaman was sentenced to death because he was found to have committed the identical offence for the third time, the co- convict, Dipak Giri was sentenced to suffer rigorous imprisonment of 30 years. Subsequently, on March 29, 2003, a complaint was filed before the court of the learned Judge, Special Court, Barasat, North 24-Parganas and having found already the petitioner is in custody in connection with a similar case pending at Mumbai, a production warrant was issued and he was taken to Calcutta and produced before the court below on August 19, 2006. Then following a production warrant received from the Mumbai Court, the Superintendent of Dum Dum Central Correctional Home moved the trial court for sending him to Mumbai, which was rejected on November 27, 2006. Thereafter, by an order passed on December 8, 2006, the prayer of the Superintendent, Dum Dum Central Correctional Home was allowed and the petitioner was sent to Mumbai, where he was confined in Arthar Road Correctional Home. Finally, in the said case, the petitioner was acquitted and he was released from custody on December 13, 2007, although he was under detention in connection with the present case and he was taken to Mumbai on the strength of production warrant. The matter when was brought to the notice of the trial court, on 3 July 10, 2009, the trial court issued warrant of arrest against the present petitioner Bhairon Singh Parihar @ Bhairon Singh @ Bheru Singh and the co-accused Ashok Jain and finally, both of them were declared to be "Proclaimed Offenders" by the trial court on March 5, 2010 and the petitioner came to be arrested more than five years thereafter, i.e. on September 12, 2015 and then he was produced before the trial court on September 15, 2015.
The learned Counsel for the petitioner submits that in the first phase and now after re-arrest, the petitioner is in custody for a total period of 11 months. He further submits that in the trial of the co-accused, while one of them was sentenced to death and another was sentenced to suffer rigorous imprisonment for 30 years, the two other co-accuseds have been acquitted. He then adds that they were placed on trial on the strength of the statement of the co-accused Ansar Rahaman recorded under Section 67 of N.D.P.S. Act and one Aharul Sk., who is similarly circumstanced with the present petitioner, was granted bail by a Co-ordinate Bench of this Court, before his trial, where one of us (Ashim Kumar Roy, J.) was a party and finally in the trial, he has been acquitted.
On the other hand, the learned Counsel for the N.C.B. vehemently opposes the prayer for bail of the petitioner and he 4 submits that against the order of acquittal of the co-accused, N.C.B. is taking steps for preferring appeal before the High Court. He further submits that the aforesaid statement under Section 67 of N.D.P.S. Act is an admissible document, when made voluntarily and already the trial court has found that the maker of such statement made the same voluntarily and that can be used against the co-accused, who has been charged under Sections 21 ( c )/29 of N.D.P.S. Act, like the present petitioner. He further submits that the order by which we granted bail to one of the co-accused, there is no reflection that while passing such order, the court had taken into consideration the provisions of Section 37 of N.D.P.S. Act and it may be that such order was not challenged by the N.C.B. but the fact remains that without taking into account the provisions of Section 37 of the N.D.P.S. Act, if any order of bail is passed, where the quantity of contraband so seized, is much above the commercial quantity, the same cannot have any legal force and any precedent value. He further submits that apart from everything, the conduct of this petitioner is that after being acquitted in a Trial involving identical offence at Mumbai, he managed to release from custody although he was not on bail in connection with the present case even after warrant of arrest was issued and declared a Proclaimed Offender, still he 5 absconded for long 5 years and evaded arrest, goes completely against his release on bail. He further submits that the aforesaid facts certainly give rise to reasonable apprehension that if released, he will never be available for trial. He then points out that already the trial is ready for start and the trial could not be commenced earlier as two other co-accuseds' cases were split up from his case and their trial was continuing, which has come on an end only on April 7, 2016, i.e. a few weeks back. He further submits that now every steps will be taken at least on the part of the N.C.B. to approach the trial court for early commencement of Trial and for taking up the matter for consideration of the question of charge and if the charge is finally framed, to conclude the trial with utmost expedition.
It is also pointed out by the learned Counsel for the N.C.B. that five other cases for the offences punishable under the Arms Act and also under the Indian Penal Code are pending against the petitioner, the details of those cases, as provided by him, are as follows:-
" 1. Badod (Agar),MP P.S. Case No. 51/2003 U/S.323,294,506 IPC.
2. Badod (Agar),MP P.S. Case No.29/2007 U/S. 3/25 Arms Act.6
3. Excise PS Bhawani Mani Case No.10/2009 U/S.19/16, 54A of Excise Act.
4. Susner PS (Agar) MP Case No.167/2011 U/S.34 (2), 36 of Excise Act.
5. Excise P.S. Jhalawar Case No.6/2009 U/S.14/54, 19/54 of Excise Act."
However, the learned Counsel for the petitioner strongly disputes such contention of the learned Counsel of the N.C.B. and submits that there is no foundation of such submission.
We have heard the learned Counsel appearing on behalf of the parties. Considered their respective submissions.
We have gone through the case dockets.
Now, considering the above facts, more particularly, the fact that the petitioner taking advantage of being released by mistake, from Arthar Road Correctional Home after his acquittal from a case pending at Mumbai by and knowing fully well about the pendency of this case against him and was not on bail, he fled away and absconded for long five years and came to be arrested after proclamation, we cannot disagree with the contention of the learned Counsel of the N.C.B. that if the petitioner is released on bail, he in all likely will again abscond. We find that neither the N.C.B. is liable for delay in trial nor the court below. Now, the trial of the co-accused has been 7 completed. Therefore, the trial of the petitioner can be commenced shortly. Further the allegations against him quite serious, it is case of drug trafficking.
We, therefore, not inclined to allow the petitioner's prayer for bail.
Accordingly, the application for bail stands rejected. However, the trial court is directed to immediately take up the matter for consideration of the question of framing of charge and that must be done within two months from the date of communication of this order and if the charge is finally framed, then to proceed with the trial of the petitioner immediately and conclude the same as expeditiously as possible, preferably within 10 months from the date of communication of this order. The trial court is also directed to proceed with the trial strictly in terms of Section 309 of the Code of Criminal Procedure.
Urgent Xerox certified copy of this order, if applied for, be given to the parties at an early date.
(Ashim Kumar Roy, J.) (C. S. Karnan, J.)