NON-COMPLIANCE WITH THE REQUIREMENTS OF SECTION 41B CR.P.C. DILUTES THE STATUTORY RESTRICTION ON GRANT OF BAIL UNDER SECTION 37 OF THE NDPS ACT OF 1985.

JUDGMENT :

(Partha Sarathi Sen, J.) :

1. The instant case as arises out of an application under Section 439 of the Code of Criminal Procedure, 1973, is taken up for passing judgement.

2. In course of hearing, learned advocate for the accused-petitioner at the very outset draws our attention our attention to the memo of arrest in the name of the present accused-petitioner. It is contended by him that from the memo of arrest it would appear that column no.10 is blank and therefore a clear violation occurred with regard to the mandatory provision of Section 41 B of the Code of Criminal Procedure which makes the alleged arrest of the present accused-petitioner in connection with the instant case very doubtful. Learned advocate for the accused-petitioner thus submits that the present accused-petitioner may be enlarged on bail on any condition whatsoever. In support of her contention learned advocate for the accused-petitioner placed reliance upon the following decisions:-

i. D.K Basu vs. State of West Bengal in Writ Petition (CRL) no. 592 of 1987); reported in (1997) 1SCC 416: 1997 SCC(Cri) 92: AIR 1997 SC 610;

ii. The order dated 10.08.2018 as passed in CRM 5708 of 2018 by a co-ordinate bench of this Hon’ble High Court;

3. Learned advocate for the State opposes the prayer for bail. Drawing attention to the seizure list it is contended by him that considering the fact that huge quantity of contraband articles was seized from the possession of the accused-petitioner the present application for bail may be rejected.

4. We have minutely perused the entire material as placed before us. We have gone through the reported/unreported decisions as cited from the Bar. We have given our anxious consideration to the submissions of the Learned Advocates for the contending parties.

5. On perusal of the reported decision of D.K Basu (supra) passed by the Hon’ble Supreme Court it appears to us that in the said decision the Hon’ble Supreme Court issued various directions which are mandatorily to be followed in all cases of arrest or detention till legal provisions are made in that behalf, as preventive measures and out of the said direction the following direction of the Hon’ble Supreme Court is very much pertinent for us while disposing of the instant bail application and the same is reproduced hereinbelow:-

“……………………………………………………………………………. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such arrest memo shall be attested by atleast one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.”

6. At this juncture if we look to the order dated 10.08.2018 passed in CRM 5708 of 2018 by a Co-ordinate Bench of this Court it appears that the said court dealing with the self same matter expressed the following view:-

“…………………………………………………………………………………………... Absence of signature in the arrest memo of a respectable member of the locality particularly when it is alleged that apprehension and recovery from the petitioner was at a public place in presence of independent witnesses gives rise to reasonable grounds that the arrest of the petitioner may not have occurred in the manner as alleged by the prosecution leading credence to the petitioner’s plea of prior arrest and wrongful detention.”

7. On perusal of the entire materials in the case diary it appears to us that sufficient materials have been placed before us to prima facie show that huge quantity of contraband articles were seized from the possession of the present accused-petitioner on 16.01.2021 at the P.O but on perusal of the memo of arrest dated 16.01.2021 in the name of the present accused-petitioner we find that the same has not been signed by either a member of the family of the present accused petitioner or by a respectable member of the locality where the a