Calcutta High Court (Appellete Side)
An Application For Bail Under Section ... vs In Re: Babar Sk. @ Mursalim on 24 August, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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04 24.08.2017
SK Court No.26
CRM 3178 of 2017
In the matter of an application for bail under Section 439 of the
Code of Criminal Procedure filed on 24.03.2017 in connection
with Islampur Police Station Case No. 201 of 2016 dated
22.06.2016 under Sections 21(c)/29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985.
And
In Re: Babar Sk. @ Mursalim Petitioner.
Ms. Sreyashee Biswas,
Mrs. Benajir Hasna ......For the Petitioner.
Mr. Sanjoy Bardhan ... For the State.
Heard the learned counsel appearing on behalf of the
parties. Perused the Case Diary.
The present petitioner is in custody for 413 days, but till
date no trial has commenced and on November 13, 2017, is the
date fixed for recording of evidence.
This is a case where according to the prosecution total 40
litres of codeine mixture was recovered from the joint possession
of the eight miscreants, which is above the commercial quantity
and they are Sabidul Sk., Sajidul Sk., Meher Gul Sk., Mithun
Sha, Safikul Alam @ Bablu, Bipan Chandra Das, Bapi Halder
and Babar Sk and on that very day i.e., on 20.06.2016 all of
them were arrested by the Police Officers, attached to the
Islampur Police Station.
It be noted, this application for bail was moved on April
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18, 2017, for the first time and the learned counsel for the
petitioner claimed for bail on the ground of parity and it was
contended that one of the co-accused, namely, Bapi Halder, who
was among the eight miscreants, has been granted interim bail
by the court below and he was on interim bail till November 13,
2017.
Having regard to the facts that quantity of contraband so
recovered was much above the commercial quantity and
therefore, the question of bail was not only subject to the
restriction provided under Section 439 CrPC but the mandate of
Section 37 NDPS Act, a special statute, we at once called for a
report from the Court concerned to ascertain how the question of
interim bail was dealt with and was granted.
Subsequently, the learned Additional District and
Sessions Judge, 2nd Court cum Judge, Special Court, under
NDPS Act and POCSO, Berhampore, Murshidabad submitted a
report, dated April 20, 2017, which was placed before us by the
learned Registrar (Judicial Service) on April 20, 2017.
Going through the same, we find that on January 9,
2017, the co-accused Bapi Halder was granted interim bail so as
to enable him to perform the rituals and shradh ceremony of his
departed father, Sukumar Halder, who expired on December 31,
2016. Initially, the interim bail was granted till February 15,
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2017. Thereafter, the interim bail of the co-accused, Bapi Halder,
on February 15, 2017, was extended till April 10, 2017 and
subsequently extended till November 15, 2017.
We are in full agreement with the contention of the
learned counsel for the State that Court below should not have
taken such a lenient view in enlarging the co-accused Bapi
Halder on interim bail in a case where the recovery of contraband
is much above the commercial quantity without addressing it to
the mandate of Section 37(1)(b) of the NDPS Act, in other words,
without first recording its findings and satisfaction that there are
reasonable grounds for believing that he is not guilty of such
offence. We are also in full agreement with the contention of the
learned counsel for the State that even if the court thought it fit
that on humanitarian ground some concession be shown to the
said co-accused Bapi Halder and release him on interim bail but
such interim bail should not have exceeded even a single day
after the cause of action of granting such concession i.e., the
shradh ceremony of his father was over and ceased and go on
extending his interim bail from time to time and then upto
November 13, 2017.
He then opposed the prayer for bail that when the order
of granting interim bail to the co-accused is patently erroneous
such order cannot be a ground to grant bail to the petitioner on
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parity.
It be noted subsequently, the State moved an application
under Section 439(2) CrPC, for seeking recalling the order of
granting interim bail and for cancellation of such interim bail
and on July 10, 2017, was fixed for hearing of the said
application.
A report (dated August 5, 2017) was submitted by the
learned Registrar General, High Court, Calcutta, on August 5,
2017, enclosing a laconic report submitted by the Court
concerned, only stating that upon hearing both sides, the
application under Section 439 (2) CrPC, has been disposed of,
without anything more.
Since, from that report, which only disclosed that the
application was disposed of, it was beyond comprehension of this
Court as to the outcome of the said application, we at once
directed the learned Registrar General to obtain a fresh report as
to the actual fate of the said application and the outcome.
Then on August 9, 2017 a fresh report with the order
passed on July 10, 2017 was placed before us and it is found
that the court concerned rejected the said application for
cancellation of interim bail moved at the behest of the State.
The FAX copy of the said order sheet enclosed with the
reported submitted by the learned Registrar General was taken
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on record.
Now, on perusal of the said order, we find the Court below
declined to cancel the interim bail granted to the co-accused
Bapi Halder on a complete misconception of the law and on an
erroneous finding. In fact, the court below has failed to
appreciate the ratio of the decisions, it relied upon, - Manjit
Prakash and others vs. Shobha Devi and another and
Gurucharan Singh vs. State, Delhi Administration (the law
journal, in which those two cases were reported, not noted in the
order sheet). The following observation of the Apex Court was
quite zealously noted by the learned Judge to justify its order.
In the first case (Manjit Prakash and others vs.
Shobha Devi and another),
i) The accused misuses his liberty by indulging in
similar criminal activity,
ii) Interferes with the course of investigation,
iii) Attempts to tamper with evidence or witnesses,
iv) Threatens witnesses or indulges in similar activities
which would hamper smooth investigation,
v) There is likelihood of his fleeing to another country,
vi) Attempts to make himself scarce by going
underground or becoming unavailable to the
investigating agency,
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vii) Attempts to place himself beyond the reach of his
surety etc.
And in the second case (Gurucharan Singh vs. State,
Delhi Administration), ,
"If, however, a Court of Sessions had admitted an accused
person to bail, the State has two options. It may move the
Sessions Judge if certain new circumstances have arisen
which were not earlier known to the State and necessarily,
therefore, to that Court. The State may as well as approach
the High Court being the superior Court under Section
439(2) to commit the accused to custody. When, however,
the State is aggrieved by the order of the Sessions Judge
granting bail and there are no new circumstances that have
cropped up except those already existing. It is futile for the
State to move the Sessions Judge again and it is competent
in law to move the High Court for cancellation of the bail.
This position follows from the subordinate position of the
Court of Sessions vis-à-vis the High Court."
It is no more res integra where the bail is granted on
merit in connection with an offence punishable under the Indian
Penal Code or under any special statute, where the provisions like
Section 37 of the NDPS Act is not embodied, no bail once granted on
merit can be cancelled unless it is established that the accused being
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enlarged on bail has misused his liberty and there are new
circumstances that have cropped up subsequently besides those
already existing i.e., were not known to the State and therefore,
necessarily, to the Court.
However, the case in hand does not fall within the category of
cases mentioned hereinabove.
In the case in hand, the bail was neither confirm nor final, only
for a limited period and interim in nature, that too not on merit but
on concession and on compassionate ground so as to enable the co-
accused Bapi Halder to perform the shradh ceremony of his departed
father. For the reason best known to the Court concerned even after
the eventuality, contingency and cause of action, if any, which
prompted the court below to grant interim bail to the co-accused,
Bapi Halder ignoring the statutory mandate of a special Act, has
extinguished, ceased by efflux of time, such interim bail has
unfortunately extended. Therefore, the principle of law, which
persuaded the Court to decline the prayer of the State to recall the
order of interim bail, when already charge-sheet has been submitted
and the trial is about to commence is not attracted.
On the other hand, we are of the opinion the principle of law
laid down by the Hon'ble Apex Court in the case of Puran vs.
Rambilas and another reported in (2001) 6 SCC 338 is squarely
applicable in this case.
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Para-10:- . Generally speaking the grounds for cancellation of bail broadly
are interference or attempt to interfere with the due course of administration
of justice or evasion or attempt to evade the due course of justice or
abuse of the concession granted to the accused in any manner. However,
these instances are merely illustrative and not exhaustive. One such ground
for cancellation of bail would be where ignoring material and evidence on
record a perverse order granting bail is passed in a heinous crime of
this nature and that too without giving any reasons. Such an order would be
against principles of law. Interest of justice would also require that such a
perverse order be set aside and bail be cancelled. It must be remembered that
such offences are on the rise and have a very serious impact on the society.
Therefore, an arbitrary and wrong exercise of discretion by the trial court
has to be corrected.
On a plain reading of the aforesaid decision it is abundantly
clear the bail already granted can not only be cancelled on the ground
of post-bail conduct i.e., the misuse of liberty of bail but when it
would be found that order of granting bail is against the principle of
law, perverse and offences are on rise and have a very serious impact
on the society and exercise of discretion by the court granting bail is
wrong and arbitrary.
At this stage, a legitimate question may arise whether by
granting interim bail to the co-accused Bapi Halder, the Court
concerned has become functus officio or not and the prohibition
contained in Section 362 CrPC is attracted or not. To reach to a just
decision in the matter, the provisions of Section 362 CrPC is quoted
below,
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"Court not to alter judgment:-
Save as otherwise provided by this Code or by any other law for
the time being in force, no Court, when it has signed its
judgment or final order disposing of a case, shall alter or review
the same except to correct a clerical or arithmetical error."
Undoubtedly and without any further deliberation, it can very
well be said that the order of granting an interim bail, the Court
passing such order, never becomes functus officio and prohibition
contained in Section 362 CrPC is not attracted. The order of interim
bail passed by the Court below was for a limited period and not a final
order disposing of the case i.e., the application of bail of the petitioner
on merit. If we address the matter from a different angle, it would at
once substantiate the logic the order of granting interim bail was not
a final order, if that be so the matter would not have come up for
further consideration before the Court concerned for extension twice
on 15th February, 2017 and April 10, 2017 and then again fixed on
November 13, 2017 for further extension. In fact, the said application
for bail is still pending before the Court concerned awaiting its final
disposal.
Union of India vs. Ram Samujh and another reported in
(1999) 9 SCC 429 in paragraphs-5, 6 and 7, the Apex Court observed
as follows,
Para-5. The jurisdiction of the court to grant bail is circumscribed by the
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provision of Section 37 of the NDPS Act. It can be granted in a case where
there are reasonable grounds for believing that the accused is not guilty of
such offence and that he is not likely to commit any offence while on bail. It
is the mandate of the legislature which is required to be followed. At this
juncture a reference to Section 37 of the Act is apposite. That provision
makes the offences under the Act cognizable and non-bailable. It reads thus:
"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 a term of
imprisonment of five years or more under this Act 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.
(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."
Para-6. The aforesaid section is incorporated to achieve the object as
mentioned in the Statement of Objects and Reasons for introducing Bill No.
125 of 1988 thus:
"Even though the major offences are non-bailable by virtue of the level
of punishments, on technical grounds, drug offenders were being released
on bail. In the light of certain difficulties faced in the enforcement of the
Narcotic Drugs and Psychotropic Substances Act, 1985, the need to
amend the law to further strengthen it, has been felt."
(emphasis supplied)
Para-7. It is to be borne in mind that the aforesaid legislative mandate is
required to be adhered to and followed. It should be borne in mind that in a
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murder case, the accused commits murder of one or two persons, while those
persons who are dealing in narcotic drugs are instrumental in causing death
or in inflicting death-blow to a number of innocent young victims, who are
vulnerable; it causes deleterious effects and a deadly impact on the society;
they are a hazard to the society; even if they are released temporarily, in all
probability, they would continue their nefarious activities of trafficking
and/or dealing in intoxicants clandestinely. Reason may be large stake and
illegal profit involved. This Court, dealing with the contention with regard to
punishment under the NDPS Act, has succinctly observed about the adverse
effect of such activities in Durand Didier v. Chief Secy., Union Territory of
Goa (SCC p. 104, para 24)
"24. With deep concern, we may point out that the organised activities
of the underworld and the clandestine smuggling of narcotic drugs and
psychotropic substances into this country and illegal trafficking in such
drugs and substances have led to drug addiction among a sizeable section
of the public, particularly the adolescents and students of both sexes and
the menace has assumed serious and alarming proportions in the recent
years. Therefore, in order to effectively control and eradicate this
proliferating and booming devastating menace, causing deleterious
effects and deadly impact on the society as a whole, Parliament in its
wisdom, has made effective provisions by introducing this Act 81 of 1985
specifying mandatory minimum imprisonment and fine."
In the case of Superintendent, Narcotics Control Bureau,
Chennai vs. R. Paulsamy - (2000) 9 SCC 549 in parargraph-6
Supreme Court amongst others observed as follows,
Para-6. In the light of Section 37 of the Act no accused can be released
on bail when the application is opposed by the Public Prosecutor unless the
court is satisfied that there are reasonable grounds for believing that he is
not guilty of such offences and that he is not likely to commit any offence
while on bail. It is unfortunate that matters which could be established only
in offence regarding compliance with Sections 52 and 57 have been pre-
judged by the learned Single Judge at the stage of consideration for bail. The
minimum which learned Single Judge should have taken into account was
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the factual presumption in law position that official acts have been regularly
performed. Such presumption can be rebutted only during evidence and not
merely saying that no document has been produced before the learned Single
Judge during bail stage regarding the compliance with the formalities
mentioned in Sections 52 and 57."
In the case of Babua @ Tazmul Hossain vs. State of Orissa
(2001) 2 SCC 566, in para-3 Supreme Court observed as follows,
"Para-3. The reasons given by the petitioner for claiming rant of bail
become insignificant if one bears in mind the scope of Section 37(1)(b) of the
Act. At this stage of the case all that could be seen is whether the statements
made on behalf of the prosecution witnesses, if believable, would result in
conviction of the petitioner or not. At this juncture, we cannot say that the
accused is not guilty of the offence if the allegations made in the charge
are established. Moreover, the evidence having not been completely adduced
before the court one cannot say that there were no grounds to hold that he
was not guilty of such an offence. Further, the liberty of a citizen has got to
be balanced with the interest of the society. In cases where narcotic drugs
and psychotropic substances are involved, the accused would indulge in
activities which are lethal to the society. Therefore, it would certainly be in
the interest of the society to keep such persons behind bars during the
pendency of the proceedings before the court."
In the case of Intelligence Officer, Narcotics Control Bureau
vs. Sambhu Sonkar & Another, reported in (2001) 2 SCC 562,
where in para-5 Apex Court amongst others, observed as follows,
Para-5. The scheme of Section 37 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 reveals that the exercise of the power to grant bail by
the Special Judge is not only subject to the limitations contained under
Section 439 CrPC, but is also subject to the limitation placed by Section 37
which commences with a non obstante clause. The operative part of the said
section is in negative form in proscribing the enlargement on bail of any
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person accused of commission of an offence under the Act unless two
conditions are satisfied. The first condition is that the prosecution must be
given an opportunity to oppose the application and the second is that the
court must be satisfied that there are reasonable grounds for believing that
he is not guilty of such offence. If either of these two conditions is not
satisfied, the ban for granting bail operates."
In the case of Union of India vs. Shiv Shanker Kesari (2007)
7 SCC 798, Apex Court amongst others observed as follows in para-7,
"Para-7. The expression used in Section 37(1)(b)(ii) is
"reasonable grounds". The expression means something more
than prima facie grounds. It connotes substantial probable
cause for believing that the accused is not guilty of the offence
charged and this reasonable belief contemplated in turn points
to existence of such facts and circumstances as are sufficient in
themselves to justify recording of satisfaction that the accused
is not guilty of the offence charged."
In the case of Union of India vs. Rattan Mallik @ Habul
reported in (2009) 2 SCC 624 in paragraphs-12 and 13 then in
paragraph-16 Apex Court unequivocally observed merely because
nothing was found from the possession of respondent/accused it
could not be said at this stage he is not guilty of the offences for which he has been charged and convicted.
In a recent decision relating to Criminal Appeal No. 774 of 2016 arising out of SLP (Crl.) No. 465 of 2016, Union of India vs. Ishdan 14 Seikh @ Ishdan Sk., a co-ordinate bench of this High Court granted bail to the accused/respondent Ishdan Seikh @ Ishdan Sk , which involves recovery of commercial quantity of contraband. However, a co-ordinate bench of this court granted bail to the said accused. The Hon'ble Apex Court quashed the said order with the following observations in paras-4 and 5, "Para-4. The only ground on which the High Court has released the respondent on bail is that "nothing was recovered from the respondent". Having regard to the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Fort short, "the NDPS Act") we find that the reasons which are required to be given by the High Court are required to be given by the High Court are that "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" (vide Section 37(b)(ii) of the NDPS Act)."
"Para-5. Shri Nadkarni, learned Additional Solicitor General refers to the recovery memo from which it appears that the recovery was made from the other person who was along with the respondent. According to the learned counsel the recovery was made from the respondent. We are not inclined to go into the question of recovery. However, we are of the view that any reason which weighs with the Court must lead to a satisfaction 15 that there are reasonable grounds of believing that the person is not guilty of such an offence and that he is not likely to commit any offence while on bail. Accordingly, the Court is bound to correlate any reason to the belief that such a person is not guilty of such an offence. This requirement is not satisfied by the impugned order."
Having regard to above, we have no hesitation that the order of granting interim bail to the co-accused Bapi Mondal even on the compassionate ground to enable him to attend shradh ceremony of his father without even remotely considering the mandate of Section 37 of the NDPS Act is illegal and perverse and without jurisdiction. We are of the further opinion, that when after the cause of action for which interim bail was granted no longer survives/ceases that is the shradh ceremony of his father was over, extending the interim bail for the period of six months when the co-accused standing on the same footing are in jail and their prayer for bail is turned down by the same Court and then refusing to cancel the bail on the prayer of the State is grossly illegal, grossly perverse and grossly without jurisdiction and not commensurate with the ends of justice.
Question of cancellation of bail, which is final and confirmed, on the ground of post-bail conduct of misuse of bail and because some new facts have been surfaced, is one thing and not to extend the interim bail granted on compassionate ground when such 16 compassionate ground ceases to exist and more particularly when the order of granting such interim bail was completely perverse, illegal and without jurisdiction since mandate of law has been completely overlooked and ignored is another thing.
The co-accused Bapi Halder has been charged for having committed an offence punishable under Section 21(c) of the NDPS Act involving recovery of commercial quantity of contraband from the joint possession of the said co-accused and others and that offence is punishable with rigorous imprisonment for a term which shall not be less than 10 years but may be extended to 20 years and with fine not less than 1 lakh which may be extended upto 2 lakhs and he was in custody for about six-and-half months when released on interim bail. Hence, even with regard to the directions of the Hon'ble Apex Court in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners vs. Union of India and others reported in (1994) 6 SCC 731. Where Apex Court directed an undertrial who has been charged for the offence punishable with minimum imprisonment for 10 years and a minimum fine of Rs.1 lakh and in custody for more than 5 years may be released on bail on furnishing a bond of Rs.1 lakh with two sureties of like amount and when already date of evidence has been fixed he was in no way eligible for liberty of interim bail, when other co-accused standing on same footing are in custody.
In the case of Puran vs. Rambilas and another (supra) in 17 paragraph-14 amongst others Apex Court authoritatively observed the power of cancellation of bail can also be used suo moto by the High Court, but we restrain us to exercise our such suo moto power, since a criminal revision being CRR No. 2791 of 2017 has been moved before the appropriate bench challenging the order whereby the prayer of the State for cancellation of interim bail granted to the co- accused Bapi Halder is rejected.
Now, coming to the case in hand and having regard to the facts the contraband so recovered from the joint possession of the petitioner and other co-accused was much above the commercial quantity and examining the materials relating to the search and seizure we are unable to satisfy ourselves that petitioner is not guilty of such offence and accordingly this application stands rejected.
The present petitioner is in custody for about little more than 431 days and the co-accused who was enlarged on interim bail was in custody for about six months when he was released on interim bail.
The petitioner shall have the liberty to pray for bail on parity and on equality clause contained in Article 14 of the Constitution, if the co-accused Bapi Halder remains on interim bail exceeding one month from this day.
So as to ensure the same mistake is not committed in future by the Court concerned and other NDPS Court situated within the State of West Bengal, the learned Registrar General, High Court, Calcutta is 18 directed to circulate this order among all the NDPS Courts situated within the State and the NDPS Court at Murshidabad at once.
This order shall also be communicated to all the Law Enforcing Agencies, namely, to the Zonal Director, Narcotic Control Bureau, West Bengal; Director of Revenue Intelligence; Calcutta Customs; Additional Commissioner of Police, Intelligence, Lal Bazar; ADG, CID for their future reference.
This order also be placed before the Administrative Committee. As prayed for by the learned counsel for the State, a plain copy of this order, duly counter-signed by the Assistant Registrar (Court) be given to him for necessary action.
(Ashim Kumar Roy, J.) (Amitabha Chatterjee, J.)