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2021 Supreme(Sikk) 3
IN THE HIGH COURT OF SIKKIM AT GANGTOK
BHASKAR RAJ PRADHAN, J.
Sagar Pradhan S/o Kamal Pradhan – Appellant
Versus
State of Sikkim – Respondent
Bail Application No. 07 of 2021
Decided On : 15-05-2021
Advocate Appeared:
For the Appellant : Mr. D.P. Luitel.
For the Respondent: Mr. Hissey Gyaltsen.
Point of Law: Bail Application - Offence of Carrying contraband substances - Reasonable ground for believing, at this stage, that applicant is not guilty of alleged offences. Charge-Sheet does not indicate applicant’s involvement in any previous criminal case. Records reveal that applicant is only 24 years old and has been incarcerated for more than five months. This Court is, thus, of the considered view that applicant is entitled to bail.
Headnote:
Sikkim Anti Drugs Act, 2006 - Section 7 (a)(b)/9/14 - Sikkim Anti Drugs (Amendment) Act, 2017 - Section 9(1)(b) - Indian Penal Code, 1860 - Section 34 - Criminal Procedure code, 1973 - Section 161 - Search and seizure - Alleged that one unknown person along with a bedding case was detained by some locals near Tadong Senior Secondary School and reported that he was suspected to be carrying contraband substances in it - Informant, as per direction of Station House Officer (SHO), visited locality and conducted inquiry - Krishan Gopal Chettri along with bedding case, was found to be guarded by beat police and locals, who reported that they had seen two persons carrying a bedding case in a suspicious manner - When they inquired from them, one of person ran away.
Finding of the Court:
It would connote substantial probable cause for believing that the accused is not guilty of the offences charged and that this reasonable belief contemplated in turn would point to existence of such facts and circumstances as are sufficient to justify recording of satisfaction that the accused is not guilty of the offences charged - The learned APP has also not pointed out any circumstance from records of the case that he is likely to commit any offence while on bail.
Result: Bail Application allowed.
ORDER :
1. This bail application has been filed by the applicant, one of the three co-accused persons facing trial under the Sikkim Anti Drugs Act, 2006 (SADA, 2006). The facts necessary for the decision of this application is being narrated.
2. On 15.05.2020, an FIR was lodged before the Sadar Police Station, Gangtok, stating that on 15.05.2020, at around 1720 hours, beat 25 informed over WT set that one unknown person along with a bedding case was detained by some locals near Tadong Senior Secondary School and reported that he was suspected to be carrying contraband substances in it. The informant, as per the direction of the Station House Officer (SHO), visited the locality and conducted inquiry. Krishan Gopal Chettri along with the bedding case, was found to be guarded by beat police and the locals, who reported that they had seen two persons carrying a bedding case in a suspicious manner. When they inquired from them, one of the person ran away. They managed to detain Krishna Gopal Chettri and informed the beat personnel, who conducted the search and seizure. The following items were seized from inside the bedding case carried by Krishna Gopal Chettri:
“(1) 85 bottles of Relax cof T cough syrup bearing batch no. 07108-SD2, mfg. Oct.2018, Exp: Sept, 2020 marked as exhibit A. Out of 85 bottles one bottle was taken out packed and sealed separately and marked as exhibit S1.
(2) 68 phials of blue colored WINSPASMO capsules bearing batch no. WBS-19012, Mfg. Aug. 2019, Exp. July 2021, each phial containing 08 capsules, totaling 544 capsules marked as exhibit B. Out of 68 phials one phial was taken out packed and sealed separately and marked as exhibit S2.
(3) 08 phials of Nitrosun 10 tablets bearing batch no. AB-04703, Mfg. 12/2019, Exp.11/2022, each phial containing 10 tablets totaling 80 tablets. Out of 8 phials one phial was taken out packed & sealed separately and marked as Exhibit S3.”
3. On completion of the investigation, charge-sheet was filed on 19.07.2020 on finding prima facie case under Section 7 (a)(b)/9/14 of the Sikkim Anti Drugs Act, 2006 read with Section 9(1)(b) of the Sikkim Anti Drugs (Amendment) Act, 2017 and Section 34 of the Indian Penal Code, 1860 (IPC) against the accused Krishna Gopal Chettri, Dipen Chettri and the applicant for intra-state illicit trafficking of contraband substances without any valid medical prescription issued by a registered medical practitioner.
4. On 24.12.2020, the learned Special Judge, (SADA, 2006), East Sikkim at Gangtok, framed four charges against the applicant under Section 9(1)(c) of the SADA, 2006 read with Section 34 IPC; Section 9(1)(a) of the SADA, 2006 read with Section 34 IPC; Section 9(1)(b) of the SADA, 2006 read with Section 34 IPC and Section 9(4) of the SADA, 2006 read with Section 34 IPC.
5. On the same date, the learned Special Judge directed the examination of the prosecution witnesses from 07.06.2021 till 17.06.2021. Therefore, the prosecution witnesses are yet to be examined.
6. The applicant has made two futile attempts for securing his bail from the learned Special Judge. On 02.02.2021, the second bail application was rejected on the grounds that his involvement in the case could not be ruled out and that charges, after having found prima facie case, had been framed.
7. It transpires that on the failure of the prosecution to file the charge-sheet within the stipulated time, Krishna Gopal Chettri was granted default bail under Section 167(2) of the Cr.P.C. on 14.08.2020. Deepen Chettri, the other co-accused, was granted regular bail by this Court on 19.01.2021.
8. The learned counsel for the applicant submits that the applicant has been languishing in the State Jail from 13.11.2020, i.e. the date he was arrested, till now on mere suspicion. The charge-sheet having been filed, the only material pressed against him is the statement of the co-accused Krishna Gopal Chettri recorded under Section 161 of the Cr.P.C. which is a weak piece of evidence. It is submitted that i
