The main legal point established in the judgment is the classification of offenses under the Act of 1957 as cognizable and non-bailable, and the applicability of previous judgments and guidelines in determining the relief for compensation.

JUDGMENT :

Jay Sengupta, J.

1. This is an application praying for declaring an arrest illegal, claiming compensation and taking action against the erring personnel.

2. Mr. Ghosh, learned Counsel for the petitioner, submits as follows. The petitioner was posted at Block Youth Office Coochbehar-2 as Block Youth Officer. He was arrested in connection with Mathabhanga Police Station Case no.460/13 dated 15.11.2013 under Sections 3, 4, W.B.G & P/C Act along with others. The petitioner along with other accused were produced before the Learned Additional Chief Judicial Magistrate, Mathabhanga on 16.11.2013. He along with others prayed for bail. The police prayed for their judicial custody. Their application for bail was rejected on 16.11.2013. The petitioner along with others again moved an application for bail. But, on the strong objection raised on behalf of the police authority their application of bail was again rejected on 18.11.2013. After rejection of the bail, the petitioner along with others moved for their bail before the Learned Session Judge, Coochbehar vide Cr. Misc No. 1993 of 2013. The bail application came up for hearing on 25.11.2013 and the Learned Court was pleased to allow the application for bail. The illegal detention of the petitioner by the police authority had caused grave injustice and prejudice to the petitioner and hence, the petitioner through his learned Advocate issued a letter 23.12.2013 and prayed for compensation. Under Gambling and Prize Competition Act, nowhere it was stated that the Section 3 and Section 4 of the said Act were non bailable. Sections 3 and 4 were bailable. But, the petitioner was made to suffer for 10 days of judicial custody without any fault of his own. The police authority never sought for any police custody, rather prayed for judicial custody. The illegal custody caused defamation of the petitioner and his family. The police authorities were under an obligation to compensate for the damage caused to the petitioner. The notice under Section 41A of Code was introduced on 01.11.2010. Hence, police did not have jurisdiction to arrest him where punishment was up to three years even if the same was found to be non-bailable. Inspite of several orders for filing affidavit-in-opposition, for the last 10 years no affidavit in opposition was filed. Hence, doctrine of non-traverse would apply. Hence, compensation, disciplinary action against Police and Magistrate ought to be initiated.

3. Mr. Galib, learned Counsel appearing on behalf of the State, submitted as follows. After completion of the investigation, a charge sheet was submitted against all the accused including the owner of the godown vide Charge Sheet No. 10/14 dated 31st November, 2014 under sections 3 and 4 by the Act of 1957 read with section 120B of Indian Penal Code. The case was pending trial before the Learned jurisdictional Magistrate being Trial No. 604 of 2014. Cross examination of the charge sheeted witnesses Sl. Nos. 1, 2, 3, 4 and 8 had been completed. The next date before the Learned Trial Court was fixed on 19th July, 2023 for cross examination of the charge sheet witnesses Sl. Nos. 6, 7 and 9, respectively. In essence, section 3 of the Act of 1957 prescribed rigorous imprisonment for a maximum term which “may extend” to 3 years with a minimum fixed as not “less than” 6 months. In essence, the section 4 prescribed a maximum term of rigorous imprisonment which “may extend” to 3 years with a minimum pegged at “less than”3 months. The punishments as envisaged under sections 3 and 4 of the Act of 1957 were squarely covered under Part II of the First Schedule to the Code of Criminal Procedure, 1973. From the combined reading of sections 3 and 4 of the Act of 1957 it was amply clear that being the maximum punishment which might “extend to”3 years as contemplated under sections 3 and 4 of the Act of 1957, the offences were “cognizable” and “non-bailable” as was envisaged in the second entry of the Part II, First Schedule to t