The absence of a witness's signature on arrest memos, coupled with the presence of independent witnesses on the seizure list, raises a reasonable doubt about the genuineness of the accused's complicity in the alleged crime, and may lead to the grant of bail despite the restrictions under Section 37 of the NDPS Act.

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 Ms. Dutta, learned advocate for the accused-petitioners has handed up to us photocopies of the memos of arrest in the names of the present two accused persons. Drawing attention to column 10 of the said two memos of arrest, it is argued by Ms. Dutta, learned advocate for the petitioner that in the said column no.10 at the place of signature of the witnesses (either a member of the family or a respectable person of the locality) one lady constable (L/C 76), Rama Nag has put her signature. It is contended on behalf of the petitioner that considering the fact that the alleged arrest of the aforesaid two accused persons has been done at day time and that too in a public place, there cannot be any justification on the part of the prosecution in not obtaining either the signature of a family member or of a respectable person of the locality on such memos of arrest instead of a lady constable while from the seizure list it would transpire that the said seizures had taken place on the self same day and hour and at the self same P.O in the presence of three independent witnesses.

3. In course of her submission Ms. Dutta, learned advocate for the accused-petitioners placed her reliance on 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. Order passed in Crl.M.P no.16086 of 1997; in Crl.M.P no. 4201 of 1997;

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

iv. The order dated 30/09/2021 as passed in CRM 1002 of 2021 as passed by another Co-ordinate Bench of this Hon’ble Court;

v. An order dated 16.12.2021 as passed in CRM 5799 of 2021 as passed by a Co-ordinate Bench of this Hon’ble Court;

vi. An order dated 31.01.2023as passed in CRM (NDPS) 3 of 2023 as passed by The Hon’ble High Court Calcutta, Circuit Bench at Jalpaiguri;

vii. An order dated 31.01.2023 as passed in CRM (NDPS) 12 of 2023 as passed by The Hon’ble High Court Calcutta, Circuit Bench at Jalpaiguri.

4. Placing reliance upon the aforesaid decisions, Ms. Dutta, learned advocate for the accused-petitioner contended that after the judgement of the Hon’ble Supreme Court in the case of D.K Basu (supra) it is the consistent view of the Supreme Court as well as of our High Court that obtaining the signature of at least one witnesses who is either a member of the family of the arrestee or a respectable person of the locality from where the arrest of the accused is made, is a sine-qua-non especially in the case of NDPS Act 1985(hereinafter referred to as the said Act of 1985) and in the event of noncompliance of such mandatory provision, a presumption may be drawn that the arrest of the accused 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. It is further argued on behalf of the petitioner that considering the facts and circumstances involved in the instant case it is amply clear that the prosecution has miserably failed to explain the discrepancies as pointed out by her in the aforementioned two arrest memos and therefore the instant bail application may be allowed notwithstanding the rigour of Section 37 of the said Act of 1985.

5. Per contra, Mr. Sourav Ganguly, learned advocate for the State at the very outset draws attention of this Court to Section 37 of the said Act of 1985. It is contended by Mr. Ganguly that on perusal of section 37 of the said Act of 1985 it would appear that the Legislature in its wisdom has incorporated certain restrictions which the accused is required to overcome prior to obtaining a favourable order of bail especially in a case of NDPS Act of 1985.

6. Mr. Ganguly, in cou