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2016 Supreme(Tri) 134
In the High Court of Tripura at Agartala
Deepak Gupta, J.
Sri. Dilip Sutradhar, Son of Sri. Sudhir Sutradhar - Petitioners
Vs.
The State of Tripura - Respondent
B.A. No. 28 of 2016, A.B No. 25 of 2016
Decided On : 06-04-2016
For the Petitioner:Mr. P.K. Biswas, Mr. P. Majumder, Ms. C. Bhowmik, Advocate.
For the Respondents: Mr. R.C. Debnath.
The rigour of Section 35 and 37 of the NDPS Act applies to cases involving commercial quantity of ganja, and statements by co-accused require corroboration.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Offence under Section 20(b)(ii)(c) read with Section 23(c) and Section 25 of NDPS Act, 1985 - Summary of Acts and Sections: Section 20(b)(ii)(c), Section 23(c), Section 25, Section 42, Section 55, Section 35, Section 37 - The court discussed the provisions of Section 42 regarding search and seizure operations, the requirements for seizing contraband substances, and the violation of Section 55. The court also considered the rigour of Section 35 and 37 in relation to bail for cases involving commercial quantity of ganja.
Fact of the Case:
The prosecution registered a case under Section 20(b)(ii)(c) read with Section 23(c) and Section 25 of the NDPS Act, 1985 against the petitioners for carrying contraband substance. The petitioners sought bail on grounds of procedural violations and technical defects in the case.
Finding of the Court:
The court found that there was sufficient material to prima facie proceed against the owner and driver, and the rigour of Section 35 and 37 of the NDPS Act applied, denying bail. However, the court granted anticipatory bail to one petitioner due to lack of certainty of involvement in the offence.
Issues: Violation of procedural provisions under NDPS Act, sufficiency of evidence, and bail eligibility for commercial quantity offences.
Ratio Decidendi: The court held that technical defects and procedural violations did not warrant bail for cases involving commercial quantity of ganja, as per the rigour of Section 35 and 37. The court also emphasized the need for corroborating evidence and the weak evidential value of statements by co-accused.
Final Decision: Anticipatory bail granted to one petitioner, subject to conditions, while the bail application of the others was rejected.
DEEPAK GUPTA, J.
Anticipatory bail application 25 of 2016 and Bail application 28 of 2015 are being disposed of by a common judgment since they both relate to the same offence registered against the petitioners under Section 20(b)(ii)(c) read with Section 23(c) and Section 25 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) Act.
2. The prosecution story briefly stated is that on 14.09.2015 one Assistant Sub-Inspector of the 86 Bn. BSF received information provided by G Branch and the Narcotic Control Bureau, Guwahati that some contraband substance is being carried in a vehicle moving in a suspicious manner near the border. The vehicle was chased by the BSF and the driver of the vehicle and one person who was sitting in the vehicle fled from the vehicle and escaped into the thick forest. This occurrence took place near border post No. 2133/5-S, that a distance of approximately 2 k.m from the international border. The vehicle bearing registration No. TR-03 G 0720 was searched and 60 k.g. of ganja was recovered from the said vehicle. On going through the papers which were found in the vehicle it was found that Dilip Sutradhar, petitioner No. 1 in B.A No. 28 of 2016 was the owner of the said vehicle. The BSF authorities seized the entire ganja packed it properly and produced it before the Sub-Inspector of Excise, Belonia on 15.09.2015 at 10.30 a.m.
3. Thereafter, the Sub-inspector of Excise, Belonia re-seized the entire contraband substance and registered a case under Section 20(b)(ii)(c) read with Section 23(c) and Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
4. The seized ganja along with the vehicle and other documents were produced before the lower court. The case was registered as Special Case No. 01 of 2015 in the Court of the learned Chief Judicial Magistrate, Belonia, South Tripura. A sample was also sent to the Tripura Forensic Science Laboratory, Government of Tripura, Agartala. Notice was served upon Dilip Sutradhar, the owner of the vehicle and also upon Sri. Bikash Debnath, petitioner No. 2 in Bail Application No. 28 of 2016 who stated to be the driver of the vehicle. These two persons appeared before the Sub-Inspector of Excise, Belonia, South Tripura and, thereafter, they were produced before the Chief Judicial Magistrate, Belonia on 29.12.2015 and behind bars since 28.12.2015.
5. Final report under Section 173 has been submitted by the Excise Department. Therefore, in this bail application the petitioners have prayed that they be enlarged on bail and the main grounds are that the search and seizure operations have been carried out in total violation of the provisions of Section 42 of the NDPS Act; that the ganja was not seized by the BSF personnel in the presence of witnesses; that the said ganja was not packed and sealed in accordance with the NDPS Act and Rules and then lastly it is submitted that there is a total violation of Section 55 of the NDPS Act.
6. As far as Anticipatory Bail Application No. 25 of 2016 is concerned, in that case the petitioner is Litan Paul alias Sadhu Paul. The case of the prosecution insofar as he is concerned, is that, during interrogation the accused driver Bikash Debnath had stated that on 28.12.2015 he had carried the ganja at the instance of Sadhu Sarkar and one Muslim gentleman and had taken consent of the owner Dilip Sutradhar to carry the ganja. The Muslim gentleman was not named. Thereafter, the CD of 31.12.2015 shows that the I.O visited the area of Barapathari and got to know from the local people that two more persons namely Md. Taj Islam and Sri. Sadhu Paul, son of Sankar Paul may be involved in the offence.
7. Thereafter, there is a CD of 04.01.2016 that two notices under Section 67 of the NDPS Act, 1985 were served upon Sri. Sadhu Paul son of Sankar Paul and Md. Taj Islam. Md. Taj Islam received the notice but Sadhu Paul denied to receive the notice as the same was served on his nick name. Then again interrogation of Bikash Deb
