Judgment & Order

HON'BLE MR. JUSTICE BISWAJIT PALIT

This petition under Section 482 of Cr.P.C. corresponding to Section 528 of BNSS read with Section 37 of NDPS Act is filed by the Union of India being represented by its Officer as petitioner against the respondent-accused person who were granted bail by Learned Special Judge, Court No.1, West Tripura, Agartala on 30.11.2024 passed in case No.03/CL/NDPS/DRI/AGT/2024-25 corresponding to Spl. NDPS.

02. Heard Learned Standing Counsel, Mr. A. Ray appearing on behalf of the petitioner and also heard Learned Counsel, Mr. S. Lodh representing the respondent-accused persons.

03. At the time of hearing, Learned Standing Counsel for the Union of India submitted that the petitioner-Union of India has challenged the order dated 30.11.2024 passed by Learned Special Judge, Court No.1, West Tripura, Agartala in the aforementioned case. The Learned Special Judge at the time of passing of order did not consider the provision of Section 37 of NDPS Act and passed the order because according to Learned Standing Counsel, until and unless the twin conditions as mentioned in Section 37 of NDPS Act are fulfilled, in that case there is very least scope to grant any order of bail in a case of this nature and furthermore, in this case before completion of statutory period of detention of 180 days, Learned Special Judge granted bail to the accused which was totally illegal and beyond the mandate of law. Learned Standing Counsel further submitted that Learned Trial Court on completion of 179 days granted bail to the respondent-accused persons without any cogent reasons which were totally impermissible and contrary to the law because in view of the regors of the provision of Section 37 of NDPS Act, there is no scope to grant bail in a case of this nature. So, the order passed by Learned Special Judge was beyond jurisdiction and the same needs to be interfered with. It was further submitted that in the case at hand there was allegation of possession of contraband items of commercial quantity by the accused persons, so, the order suffers from infirmity and further, Learned Special Judge on the ground of illness of one of the accused, Rahul Ghosh allowed bail is not a justified and legal ground to consider bail to the said accused. It was further submitted that for medical exigency to the extent Learned Trial Court could grant bail for interim period but that was not being done and in respect of another accused nothing has been explained in the order as to why he was given bail. So, Learned Standing Counsel, Mr. Ray urged for setting aside the order passed by Learned Special Judge with direction to the accused persons to surrender before the Learned Trial Court.

04. On the other hand, Learned Counsel, Mr. S. Lodh first of all drawn the attention of the Court referring the contents of the complaint filed before the Court initially, wherein the name of the present respondent-accused persons were there and thereafter, again on 30.11.2024 another complaint was filed by one, Mr. Sumanta Chowdhury, Senior Intelligence Officer involving another accused, Moudad Ahmed Choudhury. But the complaint was filed by Union of India not represented by any Authorized Officer. So, the filing of initial complaint was without jurisdiction and in this regard, Learned Counsel for the respondent-accused persons drawn the attention of the Court referring sub-clause-(d) of Section 36-A of the NDPS Act and further submitted that in view of the judgment of the Hon'ble the Apex Court in Tofan Singh vs State of Tamil Nadu reported in (2021) 4 SCC 1 wherein Hon'ble the Apex Court in para Nos.137 & 140 observed as under:

“137. The language of Section 53(1) of the NDPS Act is crystal clear. It clothes the officers mentioned therein with the powers of "an officer in charge of a police station for the investigation of the offences under this Act". The expression "officer is defined in the CrPC as follows: "2. (o) officer in charge of a police s