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IN THE HIGH COURT OF CALCUTTA
Debangsu Basak, Bibhas Ranjan De, JJ.
State Of West Bengal - Appellant
Versus
Baki Billa Gazi @ Billu & Othrs - Respondent
C.R.M 6319 of 2021
Decided On : 23-02-2022
Bail - NDPS Act - Section 439 (2) - Summary of Acts and Sections: NDPS Act, 1985, Section 22(c), Section 29, Section 36A(4), Section 37 - The court discussed the compliance with the NDPS Act, 1985, the requirement of filing a petition for extension of time, and the restrictions under Section 37 of the NDPS Act, 1985. The court's decision was influenced by the interpretation of the right to default bail, the filing of charge sheet, and the restrictions under Section 37 of the NDPS Act, 1985.
Fact of the Case:
The accused were apprehended with contraband articles, and charge sheets were filed within the statutory period. The court granted bail to the accused, but the prosecution sought cancellation of bail under Section 439(2) of the Criminal Procedure Code.
Finding of the Court:
The court found that the right to default bail had extinguished before the filing of the bail petition, and the restrictions under Section 37 of the NDPS Act, 1985 were not considered before granting bail. The court allowed the application for cancellation of bail and directed the petitioners to surrender to custody.
Issues: The main issue was whether the accused were entitled to statutory bail under Section 36A(4) of the NDPS Act, 1985.
Ratio Decidendi: The court held that the right to default bail had extinguished before the filing of the bail petition, and the restrictions under Section 37 of the NDPS Act, 1985 were not considered before granting bail.
Final Decision: The court allowed the application for cancellation of bail under Section 439(2) of the Criminal Procedure Code and directed the petitioners to surrender to custody within one week.
JUDGMENT
Bibhas Ranjan De, J. - This is an application for cancellation for bail under Section 439 (2) of the Code of Criminal Procedure, 1973, challenging the order dated 06.03.2021 passed by the Ld. Special Judge, Bench 1, Narcotic Drugs and Psychotropic Substances Act, 1985, (hearinafter referred to as NDPS Act, 1985), City Sessions Court at Calcutta in connection with NDPS case no. 43 of 2019 arising out of Special Task Force (hearinafter referred to as STF) police station case no.38 of 2019 dated 14.10.2019 under Section 22(c)/29 of NDPS Act, thereby allowing prayer for bail of the opposite parties.
2. On 13.10.2019 following a source information complainant along with other members of the raiding party conducted a raid near Chingrighata crossing near E.M. Bypass. They apprehended and detained the opposite parties and another person namely Aktarul Gazi. After compliance the relevant provisions of the NDPS Act, 1985 the accused was searched and 2.182 kgs, 2.692 kgs and 1.102 kgs of 'Amphetamine/Yaba Tablets' were recovered and seized from their exclusive possession. After compliance of due process during interrogation the apprehended persons disclosed the name of opposite party no 3 and others as their associates.
3. Pursuant to the disclosure statement, the opposite party no.3 and one Syeed Sahid Ahamed @ Sakil Ahmed were arrested on 17.10.2019. On being searched 670 grams and 449 grams of 'Amphetamine/Yaba Tablets' were recovered and seized from their exclusive possession, after compliance of due process. During investigation the names of Md. Abbas Khan @ Saradand Md. Ziour Rahaman have been disclosed. Both of them were arrested on 19.10.2019. On being searched 5.662 kgs of 'Amphetamine/Yaba Tablets' was recovered and seized from them after compliance of due process.
4. After investigation charge sheet being no C.S No. 23/ 2020 dated 08.04.2020 under Section 22(c)/ 29 of the NDPS Act, 1985 against the opposite parties and other four persons. In the charge sheet there was a prayer for continuance of investigation with a view to submit charge sheet on receipt of the pending chemical examination report. Due to suspension of normal Court functioning for Covid-19 the charge sheet was actually filed before the Ld. Chief Metropolitan Magistrate, Calcutta on 09.04.2020 i.e well within the statutory period.
5. On15. 07.2020 copy of the chemical examination report was filed before the Ld. Judge, Bench -I, City Sessions Court, NDPS Act, Calcutta and Ld. Judge to cognizance of the same on 19.08.2020.
6. On receipt of a hard copy of chemical examination report, the investigating Officer submitted a supplementary charge sheet being no C.S No. 08/2021 dated 24.02.2021 under Section 22 (c)/ 29 of the NDPS Act, 1985 against opposite parties and four others. And on the same date i.e on24.02.2021 Ld Judge passed an order directing the supplementary charge sheet be kept as a part of the record.
7. On 06.03.2021 Ld. Judge was pleased to allow the prayer for bail of the opposite parties on the ground that charge sheet was submitted on 09.04.20220 but cognizance was not taken and also on ground that no petition was preferred from the side of the prosecution following the procedure prescribed under Section 36A (4) of the NDPS Act, 1985, with a prayer for extension of period for submission of the charge sheet.
8. On 06.03.2021 Ld. Judge at the time of granting bail to the opposite parties made an observation as follows:
'Order No.53 dated 06.03.2021 Record is put up today.
Bail petition filed or the accused persons namely Md. Ali Ahamed, Baki Billa Gazi@ Billu and Md. Nawaz Khan @ Md. Raju are taken up together for hearing.
Perused all the petitions in the perspective of the allegation labeled against the accused persons.
Perused also the case record and the CD.
Heard Ld. Advocate of both sides at length.
Ld. Advocate appearing on behalf of the accused persons advanced argument that in this case initially I.O submitted charge sheet against the accused persons
The right to default bail under the NDPS Act, 1985, and the restrictions under Section 37 were central to the court's decision.
The absence of a chemical examination report does not render a bail application incomplete under the NDPS Act; the petitioner must satisfy the twin conditions for bail.
The granting of bail under the NDPS Act must strictly adhere to statutory requirements; mere absence of contraband possession does not negate the necessity for robust scrutiny of evidence against the....
The main legal point established in the judgment is the consideration of debatable issues regarding compliance with the NDPS Act, the preparation of documents, and the integrity of the prosecution's ....
The court emphasized the necessity of strict adherence to Section 37 of the NDPS Act when considering bail applications, citing misapplication by the lower court.
Right to liberty is a fundamental right under Article 21 of Constitution of India.
The decision reinforced the requirement under Section 37 of the NDPS Act to establish reasonable grounds for bail in cases involving serious narcotic offenses.
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