Back
2018 Supreme(Tri) 206
IN THE HIGH COURT OF TRIPURA, AGARTALA
ARINDAM LODH, J.
Sri Ashish Sarkar S/o Sunil Chandra Sarkar – Petitioner
Versus
The State of Tripura Rep. by the Secretary, Department of Home – Respondent
B.A. No. 58 of 2018
Decided On : 23-07-2018
For the Petitioners: Mr. P.K. Biswas, Mr. P. Majumder.
For the Respondents: Mr. A.K. Bhowmik, Mr. B. Choudhury.
Headnote:
BAIL - SECTION 439 CRPC - SECTION 37 NDPS ACT - SUDHIR SARKAR - ACCUSED ARRESTED FOR POSSESSION OF 93.900 KGS OF CANNABIS - NON-COMPLIANCE OF SECTION 42(2) OF NDPS ACT - SUBSTANTIAL COMPLIANCE - SDPO'S PARTICIPATION IN RAID - DELAYED COMPLIANCE WITH EXPLANATION - BALANCE BETWEEN PERSONAL LIBERTY AND COMMUNITY INTEREST - COURT'S DISCRETION - REJECTION OF BAIL - DIRECTIVES TO CHIEF SECRETARY AND DGP TO CURB CANNABIS CULTIVATION AND TRAIN POLICE OFFICIALS.
Fact of the Case:
Accused Sudhir Sarkar was arrested for possessing 93.900 kgs of cannabis. He applied for bail under Section 439 of the Code of Criminal Procedure, 1973 read with section 37 of the NDPS Act, 1985. The accused's counsel argued that the search and seizure were made in utter disregard of the mandatory provision of section 42(2) of the NDPS Act for which the accused is entitled to be released on bail. The Public Prosecutor opposed the bail prayer, contending that the State government is taking strict measures to control drug peddling and that the accused is involved in a large-scale drug trafficking racket.
Finding of the Court:
The court held that the accused was not entitled to bail. The court found that the SDPO, being a gazetted officer, participated in the raid and seizure, which amounted to substantial compliance of section 42(2) of the NDPS Act. The court also held that the accused had not been able to satisfy the twin tests of section 37 of the NDPS Act, which are that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail.
Issues: 1. Whether the search and seizure were made in utter disregard of the mandatory provision of section 42(2) of the NDPS Act? 2. Whether the accused is entitled to be released on bail? 3. Whether the State government is taking strict measures to control drug peddling? 4. Whether the accused is involved in a large-scale drug trafficking racket?
Ratio Decidendi: 1. The court held that the SDPO's participation in the raid and seizure amounted to substantial compliance of section 42(2) of the NDPS Act. 2. The court held that the accused had not been able to satisfy the twin tests of section 37 of the NDPS Act, which are that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. 3. The court held that the State government is taking strict measures to control drug peddling. 4. The court held that the accused is involved in a large-scale drug trafficking racket.
Final Decision: The court rejected the accused's bail application.
ARINDAM LODH, J.
1. This application for grant of bail under Section 439 of the Code of Criminal Procedure, 1973 read with section 37 of the NDPS Act, 1985 has been filed by the accused Sudhir Sarkar in respect of case no. NDPS (Special) 04 of 2018 by the Special Judge, Unakoti Judicial District, Kailasahar arising out of Pecharthal PS case no. 11 of 2018 under Section 20(b)(c) of the NDPS Act, 1985 who was arrested on 19.05.2018 and since then the accused is in jail for 47 days.
2. The factual matrix that led one Saikat Dey, S.I. of police to lodge a written complaint on 18.05.2018 before the Officer-in-Charge of Pecharthal police station stating inter-alia that on the basis of secret information received by him that the accused was possessing huge quantity of dry cannabis (dry ganja leaves) in his house to transport to other place and accordingly the duty officer of Pecharthal police station Ranjan Debnath entered the said information in GD Entry no. 10 dated 18.05.2018 at 12:41 hours and he informed the matter to the O/C of the police station as well as SDPO, Kumarghat and as per instruction of the O/C police station and the SDPO, Kumarghat proceeded towards Karoicherra village along with two independent witnesses and reached the house of the accused at 14:15 hours and searched the house and recovered cannabis Indica leaves contained in 7 nos. of plastic drums and 3 nos. of plastic gunny bags, in total 93.900 kgs. and seized the same by preparing seizure list in presence of witnesses and prepared inventory of the articles and thereafter the accused was arrested for committing offence punishable under Section 20(b)(c) of the NDPS Act and the said complaint has been treated as FIR and registered as Pecharthal PS case no. 11 of 2018.
3. After his arrest, the accused was produced before the Special Judge, Unakoti Judicial District, Kailasahar on 19.05.2018 when his bail application was rejected and accordingly he was sent to judicial custody vide order dated 19.05.2018. The accused was produced on 30.05.2018 and again on 12.06.2018 before the Special Judge, Unakoti Judicial District, Kailasahar, but he was not granted bail. The accused had approached this court vide Bail Application no. 46 of 2018 which was listed for order on 20.06.2018, but it was withdrawn with liberty to file afresh at appropriate time. Thereafter, the accused was produced before the Special Judge, Unakoti Judicial District, kailasahar on 25.06.2018 and again remanded to judicial custody on rejection of the bail prayer.
4. This is the second round of application filed before this court by the accused just within 47 days of his arrest.
5. Mr. PK Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the accused has mainly emphasized that the search and seizure were made in utter disregard of the mandatory provision of section 42(2) of the NDPS Act for which the accused is entitled to be released on bail. Mr. Biswas, learned senior counsel has further submitted that it is settled position of law as on today that non-compliance of the provision of section 42(2) of the NDPS Act vitiates the entire proceeding and the prosecution has failed to make out any case for such violation. In support of his submission, Mr. Biswas, learned senior counsel has placed reliance on a decision of this court in Khalek Miah vs. State of Tripura (Bail Application no. 18 of 2016) wherein this court relying upon the decision of the Apex court in Sarija Banu alias Janarthani alias Janani and Another vs. State through Inspector of Police, (2004) 12 SCC 266 enlarged the accused on bail with some conditions. Mr. Biswas, learned senior counsel has placed his reliance on a decision of the Apex court in State of Rajasthan vs. Raj Singh @ Hansa, AIR 2016 SC 3041 whereby and whereunder the Apex court has acquitted the accused for non-compliance of provision of section 42(2) as well as section 50 of the NDPS Act. Referring to a decision of this court in
