STATE OF WEST BENGAL versus RAKESH SINGH @ RAKESH KUMAR SINGH on 11 July 2022

[2022] 14 S.C.R.

STATE OF WEST BENGAL

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v.

RAKESH SINGH @ RAKESH KUMAR SINGH

(Criminal Appeal No. 923 of 2022)

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JULY 11, 2022

[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –ss.27A, 37, and 21(b)/29 – Rigours of provisions of s.37 relating togrant of bail – Inapplicability – Cocaine, a contraband drug,Crecovered from a motorcar with three occupants – Respondentaccused of offences u/ss.21(b)/29/27A – Accusation againstrespondent pertaining to offence u/s. 27A that he along with otherco-accused hatched criminal conspiracy to implicate two occupantsof the motorcar under the NDPS Act out of personal grudge –DProsecution alleged that respondent got the contraband procuredafter making payment for the same and then got it planted in thevehicle occupied by the three persons – Having been arrested, therespondent filed bail application – Trial Court rejected the bailapplication – Respondent approached High Court – High Courtheld that the restriction of s.37 would not apply to this case and theErespondent, who was in custody, qualified for grant of bail withstringent conditions – On appeal, held: The story of planting ofcontraband in the vehicle in question by some third person couldonly be disbelieved, for being squarely contrary to the initial caseof the prosecution, as stated in the written complaint – Once theFveracity of prosecution case against the respondent is in seriousdoubt, further analysis on the other factors about financing thedrug trafficking and harbouring of offender need not be undertakenbecause, when story of planting of contraband is removed out ofconsideration, all other factors by which respondent was sought tobe connected with such alleged planting could only be regarded asGfalse and fanciful, at least at this stage – In the facts andcircumstances, the High Court rightly found that applicability ofs.27A was seriously questionable in this case – That being theposition; and there being otherwise no recovery from the respondentand the quantity in question being also intermediate quantity, theHrigours of s.37 do not apply to the present case – The past history of the respondent and even his conduct in relation to the processesconcerning the present case give rise to a few questions but, thestrong countervailing factor in the present case is the prima facieindication that he was being sought to be framed by concoctionsand baseless stories – Another factor noticeable was that respondentwas not involved in any NDPS Act case or any akin offence in thepast – Further, nothing of any contraband article was recoveredfrom respondent or from any place under his exclusive control –This factor further adds on to the doubt as to whether the respondenthad at all been indulgent in narcotics or any contraband – Thatbeing the position, the view as taken by the High Court cannot besaid to be an altogether unacceptable or impossible view of thematter – Also, apart from the stringent conditions already imposedby the High Court, it is always open for the prosecution to seekimposition of any further condition or even to seek cancellation ofthe bail granted to the respondent, in case of any fault on his partin due adherence to the conditions already imposed – No reasonfor interference in order passed by High Court granting bail to therespondent with specific conditions – Bail.

Dismissing the appeal, the Court

HELD:1. The contention on the part of the respondentcannot be ignored that if statements of two witnesses wererecorded on 27.02.2021 and 28.02.2021, there was no materialwith the investigating agency to summon him on 22.02.2021. Thisis apart from the fact that the statements of the said two witnesses,prima facie give rise to some reasonable questions, as to whywere they kept as companions while the respondent and a co-accused purportedly carried out the alleged clandestine? dealswith exchange of contraband and the currency? [Para 14.1][559-F-H]

2.1. According to the prosecution, the FIR in question foroffences under Sections 21(b) and 29 NDPS Act came to beregistered on the basis of a written complaint dated 19.02.2021.This complaint dated 19.02.2021 is an admitted document of theappellant and is rather the foundation of the entire matter. A fewpassages of the said written complaint, disclose as to what exactlytranspired in detaining the vehicle and as to how the contrabandwas recovered. [Para 16][560-E-G]

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A2.2. Two major aspects emerge therefrom: one, that beforeinterception, the motorcar in question was in motion and wasmoving from west to east direction, which was detained by policewith the help of other raiding team members; and second, thatduring search, the occupants of motorcar pointed towards twospecific places inside the vehicle where the contraband drug/Bcocaine was placed in a concealed manner i.e., rear zip cover ofthe left front seat and beneath the driver’s seat. Both theseassertions, when examined with reference to the allegedstatements of the three motorcar-occupants, with supplementarywritten submissions, their incompatibility and contradictionCstrikingly come to the fore. According to the said statements, afew minutes before the alleged ‘encircling’ of motorcar by theraiding team, the said occupants had come out of the vehicle andAmrit Raj Singh (co accused) remained inside for changing hisclothes; and he spent a minimum of 10 to 15 minutes inside thevehicle when these three persons allegedly saw him bending downDand doing something on the floor of the car! The story, as soughtto be suggested in these statements, contradicts the fundamentalfacts stated in the initial complaint that the search and raidingteam persons had in fact stopped and detained the movingvehicle; and that the occupants of motorcar pointed towards theEspecific places in the vehicle where the contraband items wereconcealed. [Para 16.1][16.1-G-H, A-C]

3. When the assertions of the SI lodging the writtencomplaint after search of the vehicle and seizure of contrabandon 19.02.2021 are pitted against the alleged statements of theFthree occupants of the vehicle, the question does arise as to whichof the two contradictory versions is to be accepted at this stage?In view of this Court, at the present stage and on prima facieconsideration of the matter, the only logical approach could be toproceed on the basis of the version of the SI as given in the written complaint because, it is not the case of the appellant thatGthe version in the written complaint is not correct. In this view ofthe matter, the very edifice of the prosecution case against therespondent crumbles down and falls flat. Putting it differently,the story of planting of contraband in the vehicle in question bysome third person could only be disbelieved, for being squarelyH

contrary to the initial case of the prosecution, as stated in thewritten complaint. [Para 16.2][562-C-F]

4. Once the veracity of prosecution case against therespondent is in serious doubt, further analysis on the other factorsabout financing the drug trafficking and harbouring of offenderneed not be undertaken because, when the story of planting ofcontraband is removed out of consideration, all other factors bywhich respondent is sought to be connected with such allegedplanting could only be regarded as false and fanciful, at least atthis stage. In the given set of facts and circumstances, the HighCourt has rightly found that applicability of Section 27A NDPSAct is seriously questionable in this case. That being the position;and there being otherwise no recovery from the respondent andthe quantity in question being also intermediate quantity, therigours of Section 37 NDPS Act do not apply to the present case.[Paras 16.3 and 16.4][562-F-H; 563-A]

5. The past history of the respondent and even his conductin relation to the processes concerning the present case giverise to a few questions but, the strong countervailing factor inthe present case is the prima facie indication that he is beingsought to be framed by concoctions and baseless stories. Anotherfactor noticeable is that the respondent has not been involved inany NDPS Act case or any akin offence in the past. It is noticedfrom the material placed on record that nothing of any contrabandarticle has been recovered from the respondent or from any placeunder his exclusive control. This factor further adds on to thedoubt as to whether the respondent had at all been indulgent innarcotics or any contraband? That being the position, the viewas taken by the High Court cannot be said to be an altogetherunacceptable or impossible view of the matter. Moreover, itcannot be said that the respondent was consciously seeking toabscond on 23.02.2021 merely because he was found in the nightat Purba Bardhaman and not at Kolkata. In any case, the aspectrelating to tendency to flee has been duly taken care of with theconditions as imposed by the High Court. Apart from the stringentconditions already imposed by the High Court, it is always openfor the prosecution to seek imposition of any further condition or AB

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Aeven to seek cancellation of the bail granted to the respondent,in case of any fault on his part in due adherence to the conditionsalready imposed. In view of the above, there is no reason toconsider interference in the order passed by the High Courtgranting bail to the respondent with specific conditions. [Paras18.1 and 19][564-B-G]B

State of West Bengal v. Rakesh Kumar Singh 2015 SCCOnLine Cal 1338; Union of India through NarcoticsControl Bureau, Lucknow v. Md. Nawaz Khan 2021SCC OnLine SC 782; State of Kerala & Ors. v. Rajesh& Ors. (2020) 12 SCC 122 : [2020] 3 SCR 348; RheaCChakraborty v. Union of India & Anr. 2020 SCCOnLine Bom 990; State of U.P. v. Amarmani Tripathi(2005) 8 SCC 21 : [2005] 3 Suppl. SCR 454; PrasantaKumar Sarkar v. Ashish Chaterjee & Anr. (2010) 14SCC 496 : [2010] 12 SCR 1165; State of West BengalDv. Rakesh Kumar Singh (2015) SCC OnLine Cal 1338– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.923 of 2022.

FFrom the Judgment and Order dated 24.11.2021 of the High Courtat Calcutta in CRM No. 3152 of 2021.

Anand Grover, Sr. Adv, Suhaan Mukerji, Vishal Prasad, AbhishekManchanda, Sayandeep Pahari, Tanmay Sinha, M/s. PLR Chambersand Co. Advs. for the Appellant.G

Vivek Narayan Sharma, Ms. Mahima Bhardwaj, Nikhil Jaiswal,Ajay Singh, Sudhanshu Khandelwal, Shubham Awasthi, Advs. for theRespondent.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

Leave granted.

2. This appeal by the State of West Bengal is directed against theorder dated 24.11.2021, as passed by the Division Bench of CalcuttaHigh Court in CRM No. 3152 of 2021, whereby the respondent, anaccused of the offences under Sections 21(b)/29/27A of the NarcoticDrugs and Psychotropic Substances Act, 1985[1], has been ordered to beenlarged on bail with certain additional conditions, apart from bail bondsand sureties.

3. Though, the validity of the order granting bail is in question inthis appeal and final determination of all the contentious issues is notcalled for but, looking to the nature of rival submissions made before usas also the nature of accusations concerning the respondent, a somewhatlengthy reference to the relevant background aspects is rather inevitable.

4. The matter in issue in this appeal has its genesis in FIR No. 65of 2021 dated 19.02.2021, registered at New Alipore Police Station,Kolkata, initially in respect of offences under Sections 21(b)/29 NDPSAct; after recovery of 76 grams of cocaine from a motorcar bearingregistration No. WB06P/0233 with three occupants, namely, SomnathChattopadhyay (security guard), Prabir Kumar De and Pamela Goswami.However, on 23.02.2021, the respondent Rakesh Singh @ Rakesh KumarSingh was arrested in this matter with the accusations essentiallypertaining to the offence under Section 27A of the NDPS Act, i.e.,financing illicit trafficking in contrabands and harbouring offenders; andwith the allegations that he got the contraband procured and then got itplanted in the vehicle occupied by the aforesaid three persons.

5. It is the accusations concerning the respondent which formsthe core of the subject-matter of this appeal. Thus, we may take note ofthe salient features of the prosecution case against the respondent asfollows:

5.1. As per the prosecution, the respondent had hatched a criminalconspiracy with the other charged co-accused persons for falselyimplicating the said Prabir Kumar De and Pamela Goswami of offencesunder the NDPS Act out of personal grudge. It is alleged that in order to 1 Hereinafter also referred to as ‘the NDPS Act’.

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Afulfil his designs, the respondent financed the activity of procuring cocaine,a contraband drug, to the tune of Rs. 8,50,000/- from the co-accusedAmrita Singh @ Sweety; that upon receiving instructions and paymentfrom the respondent, the said co-accused Amrita Singh @ Sweetyprocured the contraband from other co-accused persons, namely, DaimAkhtar and Farhan Ahmed; and that after procurement, the contrabandBwas handed over to the respondent by the co-accused Amrita Singh@Sweety.

5.2. According to the prosecution, the respondent, thereafter,engaged the co-accused Amrit Raj Singh, who allured the said PrabirKumar De and Pamela Goswami to attend a meeting with a seniorCpolitical leader at New Alipore area on 19.02.2021 in relation with theensuing Legislative Assembly elections; and the said Amrit Raj Singhwent to the house of the respondent on 18.02.2021 and was also seenusing the vehicle of the respondent.

5.3. It has further been alleged that on 19.02.2021, the said PrabirDKumar De and Pamela Goswami, accompanied by their security guardSomnath Chattopadhyay, picked up Amrit Raj Singh in their vehicle andproceeded for the meeting scheduled at New Alipore area. Upon reachingthe place of occurrence, Amrit Raj Singh, on the pretext of changing hisclothes, stayed in the vehicle while Prabir Kumar De, Pamela Goswami,Eand Somnath Chattopadhyay got off. Taking advantage of thecircumstances, Amrit Raj Singh concealed cocaine in different parts ofthe vehicle and made a call to the respondent over a phone number,which stood in the name of one Jitendra Kumar Singh. Thereafter, AmritRaj Singh fled on a scooty, as instructed by the respondent and then,took shelter at the respondent’s residence.F

5.4. As regards recovery and seizure of contraband, it has beenalleged that on 19.02.2021, based on credible source information, a teamof officers was constituted at New Alipore Police Station; and this teamdetained the said vehicle bearing Registration No. WB-06 P/0233, seized76 grams of cocaine from the vehicle, and arrested the said three persons,Gwho were present in the vehicle. Based on this recovery and seizure, awritten complaint dated 19.02.2021 was submitted to the Officer In-Charge of New Alipore Police Station, Kolkata by Somnath Sarkar, SIand thereupon, the said FIR No. 65 of 2021 for offences under Sections21(b) and 29 NDPS Act was registered. Some of the contents of thisHwritten complaint leading to the FIR in question shall have their own bearing on the contentions urged in this matter. The same shall beadverted to at the appropriate juncture hereafter later.

5.5. According to the prosecution, on 20.02.2021, the said AmritRaj Singh was seen leaving the house of the respondent. Further on22.02.2021, considering the nature and gravity of crime, the investigationof the matter was taken over by the Detective Department, Lalbazar,Kolkata and the Joint Commissioner of Police, Crime, Kolkata formedthe Special Investigation Team[2] under Memo No. CI/47/9/21.

5.6. It has further been pointed out that a notice under Section160 of the Code of Criminal Procedure, 1973[3] read with Section 67NDPS Act was issued to the respondent by the investigating agencyrequesting his appearance before the Investigating Officer at NarcoticCell, 6[th] Floor, KIT Building, Kolkata on 23.02.2021 at 4:00 p.m. Thisnotice was challenged by the respondent by filing WPA No. 5448 of2021 but the High Court, by its order of the even date, dismissed thepetition so filed by the respondent.

5.7. It has yet further been alleged that the respondent failed toappear in response to the notice aforesaid and, therefore, the policewent to search his residence at 12A Orphangunj Road, PS Watgunge,Kolkata-23 but the police personnel faced obstructions from CISFpersonnel, who blocked their entry into the respondent’s residence atthe instructions of the respondent’s sons. It is the case of prosecutionthat the respondent could not be located at his residence; and one hard-disk consisting of CCTV footage was seized from his house but, uponforensic examination, it was found that the data had been deletedtherefrom. It is, however, pointed out that the respondent was detainedand arrested at Galsi PS, Purba Bardhaman in the State of West Bengalat 11:29 p.m. on 23.02.2021.

5.8. As regards the aforesaid allegations concerning the events of18.02.2021 and 19.02.2021, the prosecution has referred to the call recorddetails of the conversation between the respondent and the said AmritRaj Singh as also the CCTV footage recorded on the respondent’sneighbourhood as also at other place of fleeing of Amrit Raj Singh. Thestatement of one Sanjay Singh is also referred in relation to the fact ofthe said co-accused Amrit Raj Singh leaving the house of the respondent.

2 ‘SIT’, for short.

3 ‘CrPC’, for short.

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2 ‘SIT’, for short.

3 ‘CrPC’, for short.

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A5.9. The prosecution has further referred to the statement of onewitness Md. Nasir Khan recorded on 27.02.2021 under Section 161CrPC wherein he had stated that on 10.02.2021, the respondent handedover one bundle of 2000 rupees notes to the said co-accused AmritaSingh @ Sweety and the said co-accused handed over 7/8 small packetsto the respondent. The prosecution has also referred to the statement ofBanother witness Nishat Alam @ Ruman Khan recorded under Section161 CrPC on 28.02.2021 in corroboration of the statement of Md. NasirKhan, concerning the financing and procurement of cocaine. Yet further,the statements of these two witnesses recorded on 30.03.2021 underSection 164 CrPC have also been referred to. It has also been allegedCthat on 27.02.2021, the respondent refused to follow the norms of CentralLock-up, Lalbazar and on being requested by the security personnel tofollow the norms, he threatened them with dire consequences; and thaton 09.03.2021, the respondent, on being produced before the NDPSCourt, manhandled the OC, Narcotic Cell by abusing and threateninghim which resulted in Hare Street PS Case No. 69 dated 10.03.2021 forDoffences under Sections 353/506 of the Indian Penal Code, 1860[4] and acharge-sheet has been filed in relation thereto.

6. Before proceeding further, it could be usefully noticed that thecharge-sheet in the present case was submitted on 03.05.2021, arrayingthe respondent and several other persons as accused while also statingEthat the allegations against the aforesaid three occupants of motorcarwere not established in investigation. As per the facts projected beforeus, prayer of the prosecution for discharge of the said three occupantsof motorcar is pending consideration before the Trial Court.

7. Having been arrested in connection with this case, theFrespondent moved an application seeking bail before the Trial Court.The application so moved by the respondent was considered and rejectedby the learned Judge, Special Court under NDPS Act cum 4[th] ASJ,Alipore, South 24 Parganas on 12.03.2021. Thereafter, the respondentapproached the High Court in the said CRM No .3152 of 2021 that hasGbeen considered and allowed by the High Court by way of impugnedorder dated 24.11.2021. In the passing, we may take note of the factthat for the said bail application having remained pending for long, therespondent approached this Court by filing SLP(Crl.) No. 7282 of 2021,which was decided on 24.09.2021. This Court, of course, declined to H4 ‘IPC’, for short.

issue any direction as such but, took note of the fact that the prayer forbail was pending since 07.04.2021 and permitted the present respondentto make a prayer for expeditious consideration before the High Courtwhile expressing hope and trust that such a prayer would be given dueconsideration. As per the record, the High Court, thereafter, hearddetailed arguments on the bail application on 07.10.2021 and pronouncedthe impugned order on 24.11.2021.

8. Having taken note of the background aspects, it would now beworthwhile to take into comprehension the relevant features of theimpugned order, whereby the High Court granted the prayer for bail,albeit on a few extra conditions.

8.1. It was contended before the High Court on behalf of theaccused-respondent that 76 grams of cocaine was recovered from thepossession of the said occupants of the motorcar and there was norecovery of contraband from his possession; that he was sought to beimplicated on the basis of statements made by the aforesaid three personswho are co-accused and their statements were not admissible in evidence;that rigours of Section 37 NDPS Act were not applicable in the casebecause intermediate quantity of contraband was involved; that the initialprosecution case and the case in the charge-sheet were diametricallyopposite inasmuch as initially, the said three persons were apprehendedon source information when they pointed out as to where in the car thecontraband was concealed but, in the charge-sheet, it was alleged thatthe respondent got planted the contraband in the car as an act of revenge;that there was no material on record even to prima facie support thecharge of financing illicit trafficking and harbouring offenders so as tobring the case within four-corners of Section 27A NDPS Act; that Section42 NDPS Act had not been complied with; that even though severalcriminal cases were pending against the respondent, but none of themwas under the provisions of the NDPS Act and in only one case was heconvicted and sentenced to one year imprisonment for entering into scufflewith a police officer in the Court premises but, the sentence wassubsequently suspended by the Appellate Court; and that respondenthad been framed in this politically motivated case after he had renouncedthe membership of one political party and joined a rival political party.

8.2. On the other hand, it was contended on behalf of the State bythe learned Advocate General that the provisions of the NDPS Act shouldbe strictly enforced to curb the menace of drug trafficking, which has a A

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Ahighly damaging effect on the society at large; that the accused-respondent was the kingpin of a drug racket who would neither come inthe fore-front nor indulge in any overt act but, would be pulling the stringsfrom behind the curtain; that there was sufficient material to support thecharge under Section 27A NDPS Act and hence, the restrictions ofSection 37 NDPS Act were attracted; that the complicity and involvementBof the accused-respondent as the head of a drug peddling racket wasduly established by the statements of various other witnesses other thanthe said three car-occupants, which include the statements of Md. NasirKhan and Nishat Alam @ Ruman Khan recorded under Section 164CrPC; that on 23.02.2021, the respondent had tried to escape to Patna;Cthat the accused-respondent was a history-sheeter with 53 criminal casesagainst him and his bail was earlier cancelled when he threatened theInvestigating Officer of the case and the prosecution witnesses outsidethe court room, as reported in the case of the State of West Bengal v.Rakesh Kumar Singh: 2015 SCC OnLine Cal 1338; that the accused-respondent was an influential person and was likely to tamper withDevidence and threaten prosecution witnesses, if released on bail; thatwhether or not there was compliance with Section 42 NDPS Act was aquestion to be raised in the course of trial and not at the stage of hearingof a bail application as held by this Court in the case of Union of Indiathrough Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan:E2021 SCC OnLine SC 782; and that resistance of the respondent tothe attempt of the investigating agency to collect his voice sample pointstowards his guilt. The learned Advocate General also relied upon thedecision of this Court in the case of State of Kerala & Ors. v. Rajesh& Ors: (2020) 12 SCC 122 as regards operation of the rigours ofSection 37 NDPS Act.F

8.3. After having considered the rival submissions, the High Courtformed the opinion that the restriction of Section 37 NDPS Act wouldnot apply to this case and the respondent, who was in custody since23.02.2021, qualified for grant of bail with stringent conditions.Accordingly, the High Court ordered release of the accused-respondentGon bail with heightened conditions like: (a) he would furnish a bond in thesum of rupees one lakh with four sureties of rupees fifty thousand each,two of whom must be local persons; (b) he shall report to the Officer-in-Charge of the concerned police station once in a week; (c) he would nottravel outside the State of West Bengal without prior leave of the TrialHCourt; and (d) he would surrender his passport before the Trial Court immediately. Having regard to the submissions made in this case, wemay take note of the relevant part of the discussion and reasoning of theHigh Court as under: - “4. We have considered the rival contentions of the parties. Wehave also perused the material in the memo of evidence filed onbehalf of the State.

5. Certain things are clear. Firstly, there was no recovery ofcontraband items from the physical possession of the petitioner.Nothing was recovered from the person of the petitioner or anyplace over which the petitioner had exclusive control. We areconscious that mere non-recovery of contraband from a person’spossession may not per se dilute the rigours of Section 37 of theNDPS Act.

6. However, even assuming that the petitioner had dominion orcontrol over the contraband in question, admittedly intermediatequantity (76 gms) of cocaine was seized. It was urged on behalfof the State that the statements of witnesses would indicate thatthe petitioner was a regular purchaser of contraband items.However, the fact remains that in the present case only 76 gms ofcocaine is involved. As observed by the Hon’ble Apex Court inthe case of Sami Ullaha (Supra), where intermediate quantityof narcotics is involved, it may not be justified to apply the rigoursof the provisions of Section 37 of the NDPS Act relating to grantof bail.

7. Thirdly, the seizure of the Cocaine was from Prabir, Somnathand Pamela as would appear from the seizure list. The FirstInformation Report dated February 19, 2021 also names thosethree persons as the accused. They have however not been namedin the charge sheet. The prosecution case has changed completelyfrom what it was at the time of filing of the FIR. The story in thecharge sheet is completely different. While the case of theprosecution initially was that recovery of the contraband item wasmade from Prabir, Somnath and Pamela who were intercepted inthe Motor Car, the story in the charge sheet is that the petitionerplanted the contraband item in the Motor Car in which those threepersons were travelling to put them in trouble to take revenge forsome personal enmity. Prima facie, this raises considerable doubtin our mind as regards the veracity of the prosecution case.

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SUPREME COURT REPORTS

A8. Fourthly, in so far as the offence under Section 27A of theNDPS Act is concerned, i.e. financing illicit trafficking andharbouring offenders, prima facie we do not find material evidenceto support that charge. In our view, being involved in one solitarytransaction concerning contraband items will not amount tofinancing illicit traffic in narcotics. The word “trafficking” connotesBcontinuous flow. There has to be some degree of continuity andregularity in drug dealing before a person can be said to betrafficking in drugs. Similarly, financing illicit traffic wouldnecessarily mean doing so on a regular or continuous basis. It ismuch more than purchasing or selling contraband items on oneCoccasion. Such a solitary transaction would, in our prima facieopinion, not fall within the mischief of Section 27A of the NDPSAct. In this connection, one may refer to a decision of the BombayHigh Court rendered on October 7, 2020 in Criminal BailApplication (Stamp) No. 2386 of 2020 (Reha Chakraborty v.The Union of India State of Maharashtra).

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9. Fifthly, we also notice that none of the 53 criminal cases pendingagainst the petitioner is under the provisions of the NDPS Act.Though the petitioner has criminal antecedents, there is no historyof the petitioner dealing in narcotics in contravention of theprovisions of the NDPS Act.

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10. Prima facie there is nothing to show that the petitioner haspreviously violated any of the provisions of the NDPS Act.

11. As regards the State’s argument that the petitioner was tryingto abscond on the night when he was arrested, prima facie, theFpetitioner may be given the benefit of doubt that he was not goingto Patna for the purpose of absconding. Since there was norestriction on his movement, merely from the fact that he washeaded towards Patna may not necessarily indicate that he wastrying to flee.

12. As regards the petitioner’s reluctance to furnish voice sample,we do not think that such refusal would be a ground for denyingbail to the petitioner when on an overall assessment of the materialon record and on consideration of the applicable law, we are ofthe prima facie view that the petitioner may have a reasonablyarguable case for acquittal at the trial. Refusal of the petitioner to G

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furnish voice sample, may or may not have an adverse effect onhis case at the trial, but we are not concerned with the same atthis stage.

13. We are conscious about the salutary object of the NDPS Actand we have given due regard to the decision of the Hon’bleApex Court in the case of State of Kerala v. Rajesh, (Supra).There cannot be any doubt that persons indulging in illegaltrafficking in contraband drugs and psychotropic substances mustbe dealt with, with iron hands. The activities of such persons havea widespread deleterious effect on the society at large. Countlessmembers of the society, often of tender age, fall prey to the heinousand nefarious activities of drug peddlers. However, the decisionin each case must depend on the facts of the case and no principleof law can be applied blindly to a given set of facts. In the facts ofthe present case, on an assessment of the material on record, weare of the prima facie view that the petitioner may not havecommitted the offence that he is charged with. Further, consideringthe past history of the petitioner which we have adverted to above,there is nothing on record to suggest that he is likely to commit anoffence under the NDPS Act while on bail.

14. For the reasons aforestated we are of the view that therestriction in Section 37 of the NDPS Act would not apply.Assessing the nature and gravity of the alleged offence and thematerial on record and also in view of the fact that the petitionerhas been in custody since February 23, 2021, we are of the viewthat the petitioner qualifies for bail but on stringent conditions.

15. Accordingly, we direct that the petitioner, namely, RakeshSingh @ Rakesh Kumar Singh shall be released on bail uponfurnishing a bond of Rs. 1,00,000/-, with four sureties of Rs. 50,000/- each, two of whom must be local, to the satisfaction of theLearned Judge, Special Court under the NDPS Act, Alipore, South24 Parganas, and on further condition that he shall report to theOfficer-in-Charge of the concerned police station once in a weekuntil further orders. The petitioner shall appear before the trialCourt on every date of hearing until further orders and shall notintimidate the witnesses and/or tamper with evidence in any mannerwhatsoever. He shall not travel outside West Bengal without theprior leave of the Trial Court and shall surrender his passport A

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Abefore the learned Trial Court immediately. The petitioner shallfully cooperate with the Investigating Authority in case of furtherinvestigation, if any.

16. In the event, the petitioner fails to adhere to any of the conditionsstipulated above without justifiable cause, the trial court shall beBat liberty to cancel the petitioner’s bail in accordance with lawwithout further reference to this court.”

9. Seeking to challenge the order impugned, a wide variety ofsubmissions have been made by the learned senior counsel for theappellant with the assertions that the High Court has erroneously grantedCbail to the respondent in utter disregard to the facts and circumstancesof the case and the principles of law applicable thereto.

9.1. The learned senior counsel has referred to the facts and thebackground aspects above-noticed and has contended that, for all theevidence collected in investigation and presented in the charge-sheet,Dclearly a case of conspiracy of financing illicit trafficking of contrabandand harbouring offender, punishable in terms of Section 27A NDPS Actis made out against the respondent. It has been contended that therespondent, in furtherance of conspiracy, financed the activity of procuringcocaine to the tune of Rs. 8.5 lakhs through the co-accused AmritaSingh @ Sweety; then, engaged another co-accused Amrit Raj SinghEwho lured the said Pamela Goswami and Prabir Kumar De to meet apolitical leader and on 19.02.2021, planted the contraband in their vehicle,and after planting the contraband, informed the respondent about executionof the work and fled from the spot to take shelter at the respondent’sresidence. According to the learned counsel, it is clearly made out thatFthe respondent financed the activity of procuring cocaine worth Rs. 8.5lakhs through the co-accused Amrita Singh @ Sweety and then, harbouredthe offender Amrit Raj Singh; and this prosecution case against therespondent is duly supported by the statements of the witnesses Md.Nasir Khan and Nishat Alam @ Ruman Khan recorded under Section161 CrPC as also under Section 164 CrPC and is further supported byGthe CCTV footage before and after the incident as well as the call datarecords. Learned counsel would argue that the High Court has seriouslyerred in not considering the relevant facts and in holding that therestrictions under Section 37 NDPS Act would not apply to the respondent,while losing sight of the fact that this provision operates in addition to theHrequirements of CrPC.

9.2. The learned senior counsel has further contended that theHigh Court failed to consider that mere absence of possession ofcontraband does not absolve scrutiny under Section 37 NDPS Act, asheld by this Court in the case of Md. Nawaz Khan (supra). Accordingto the learned counsel, the High Court has proceeded on theconsiderations that there was no recovery from the respondent; that therecovery was of intermediate quantity; and that the initial case ofprosecution has changed but, the High Court has ignored the fact thatafter the arrest of Pamela Goswami and Prabir Kumar De with whomcocaine was found, the investigation revealed that all this was done infurtherance of the conspiracy to implicate them at the instance of therespondent.

9.3. While reasserting that a clear case under Section 27A NDPSAct is made out, the learned senior counsel has contended that the HighCourt’s reference to the case of Rhea Chakraborty v. Union of India& Anr.: 2020 SCC OnLine Bom 990 remains misplaced inasmuchas, even in that decision, it was held by the Bombay High Court thatfinancing is making a particular activity operational or for sustaining it.

9.4. A learned senior counsel has also questioned the conduct ofthe respondent that even after dismissal of WPA No. 5448 of 2021 on23.02.2021, he failed to appear before the Investigating Officer at 04:00p.m.; remained unavailable at his residence; and was finally apprehendedat Purba Bardhaman at 11:29 p.m. The learned counsel would submit,while relying on the decision in the case of State of U.P. v. AmarmaniTripathi: (2005) 8 SCC 21, that the respondent has shownthe tendencyto abscond or flee and hence, does not deserve indulgence of bail.

9.5. Further, with reference to the decision in the case of PrasantaKumar Sarkar v. Ashish Chaterjee & Anr.: (2010) 14 SCC 496, thelearned senior counsel has contended that the respondent enjoysconsiderable political clout in the State of West Bengal and there remainsa reasonable apprehension that he may use his power and position toinfluence the witnesses and to tamper with the evidence; and theseaspects need to be taken into consideration while considering the bailplea of such an accused.

9.6. The learned senior counsel has further highlighted the factthat the respondent has been involved in as many as 53 criminal cases atdifferent police stations in the State of West Bengal and has the history AB

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Aof threatening public servants. It has particularly been pointed out that inthe year 2015, the respondent attempted to threaten the InvestigatingOfficer and to snatch away the Government documents which resultedin Hare Street PS Case No. 108 dated 19.02.2015, where he wasultimately convicted. It has further been pointed out, with reference tothe order in the case of State of West Bengal v. Rakesh Kumar Singh:B(2015) SCC OnLine Cal 1338, that even in custody, he had threatenedthe police officers. It has yet further been submitted that the respondentrefused to follow the norms of the Central Lock-up, Lalbazar and onbeing requested to do so, he threatened the security personnel with direconsequences; he also tried to assault and attempted to abscond; andCyet further, on being produced before the NDPS Court, he manhandledthe OC, Narcotic Cell by abusing and threatening him, which resulted inHare Street PS Case No. 69 dated 10.03.2021 for offences underSections 353 and 506 IPC.

10. In this matter, we had heard learned counsel for the parties onD18.05.2022. During the course of submissions, a few queries croppedup, particularly in regard to the status of the said three occupants of themotorcar and as to whether any of their statements had been recordedas also about the particulars of cases pending against the respondent.Having regard to the circumstances, while closing the matter, we permittedthe learned counsel for the parties to file supplementary written notes onEtheir submissions as also documents, in addition to the submission notesand documents already filed by them. Accordingly, on behalf of theappellant-State, supplementary written submissions have been filed withadditional documents.

10.1. By way of the said supplementary submissions andFdocuments, it has been asserted that after constitution of SpecialInvestigation Team on 22.02.2021, the statements under Section 161CrPC of the said three occupants of the motorcar were recorded, whichuncovered the criminal conspiracy hatched by the respondent to implicatethem out of personal vendetta. The statements of these three persons,Gsaid to have been recorded by the SIT, have been annexed with thesesupplementary written submissions wherein, the said Prabir Kumar Deand Pamela Goswami have referred to their own personal relationshipsas also the attempts of the respondent to forge a relationship with PamelaGoswami and the respondent having been enraged when the matterwas reported to the higher authorities of their political party and he wasH

cautioned by the party functionaries. It has been alleged that after suchincidents, the respondent threatened to implicate her and Prabir KumarDe in a criminal case. Further, as per those statements, Amrit Raj Singhaccompanied them in the motorcar, as indicated in the prosecution story.It has also been narrated as to how Amrit Raj Singh asked the driver tostop the vehicle at a particular place; asked other occupants to get downand he remained inside the vehicle for some time on the pretext of changinghis shirt and putting on a cover coat; and within a few minutes of hisgetting down, 10/25 police personnel encircled the vehicle and then, foundthe plastic packets at different places inside the vehicle whereas AmritRaj Singh managed to escape.

10.2. It has also been submitted on behalf of the appellant that thesaid three persons have yet not been discharged and in the event ofbeing discharged, they would be cited as witnesses by the prosecution.

10.3. As regards the criminal antecedents of the respondent, a listof criminal cases against him has also been placed before us while pointingout that 51 cases are pending against him and in two cases, he has beenconvicted wherein the allegations were of criminal intimidation andwrongful restraint of police personnel.

10.4. It has, therefore, been submitted that looking to the natureof accusations and the conduct of the respondent, he is not entitled to bereleased on bail; and the impugned order deserves to be set aside.

11. The submissions so made on behalf of the appellant Statehave been equally countered by the learned counsel for the respondentwhile supporting the order impugned and while asserting that therespondent has been sought to be framed in this case with a concoctedstory and with distortions of facts.

11.1. The learned counsel has referred to the five major factorstaken into consideration by the High Court, namely, that only intermediatequantity of contraband was involved; that Section 27A NDPS Act wasnot attracted due to lack of prima facie evidence concerning involvementof the respondent; that there was no history of the respondent dealing innarcotics; that there was no recovery of contraband from the physicalor conscious possession of the respondent; and that the FIR case hasbeen completely changed by the State in the charge-sheet, raisingconsiderable doubt regarding the veracity of prosecution case. Thelearned counsel would submit that the impugned order, thus, proceeds A

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Aon valid considerations and yet, the High Court has imposed ratherstringent conditions while granting bail, which are being complied withby the respondent. Thus, according to the learned counsel, no case forinterference is made out.

11.2. The learned counsel has again made reference to theBaforementioned factual aspects and has strenuously argued that thematerial witnesses in support of the accusations of conspiracy againstthe respondent allegedly gave their statements to the police on 27.02.2021and 28.02.2021 respectively. That being the position, on 22.02.2021, whenthe respondent was served with notice, the investigation agency had nomaterial to connect him with the present case and there was no reasonCto summon him. The learned counsel has also attempted to argue thatone of the members of the SIT formed by the State had earlier tried toforge a false complaint against the respondent. It has been contendedthat the respondent was summoned without any material and even whenthe time to join investigation was scheduled at 04:00 p.m., the StateDpolice raided the house of the respondent at 01:30 p.m. and carried outillegal search, though no contraband article was recovered from the house/office of the respondent.

11.3. With reference to the genesis of the case arising out of FIRNo. 65 of 2021 and recovery of contraband from the motorcar occupiedEby the said three persons, the learned counsel has particularly referredto the fact that as per the complaint, the said occupants had pointed outthe place in the motorcar where cocaine was concealed and this factitself gives rise to considerable doubt in relation to the prosecution caseabout anyone concealing cocaine in the motorcar without knowledge ofthe said occupants. In the given circumstances, according to the learnedFcounsel, observations of the High Court that the prosecution case haschanged completely from what it was at the time of filing of FIR cannotbe said to be unjustified. It is submitted that there is not even primafacie evidence to allege that the respondent got planted contraband inthe motorcar of the said three occupants, who remain the main accusedGpersons in this case.

11.4. Apart from questioning the correctness of the statementssaid to have been made by the said witnesses Md. Nasir Khan andNishat Alam @ Ruman Khan, the learned counsel has pointed out thatboth of them are convicts in a rape case and they came out of jail only 2-H3 months before the incident related with the present matter. This apart, according to the learned counsel, even taking their statements on facevalue, the charge under Section 27A will not get attracted for it beingsolitary transaction and the motive being of revenge and not drug peddling.The learned counsel has elaborated that for attracting the mischief ofSection 27A NDPS Act, there ought to be doing something on regularbasis and a solitary transaction is not covered thereunder; and this iscoupled with the fact that nothing was recovered from the respondentor from any place over which he had exclusive control.

11.5. It has further been submitted that there was no question ofthe respondent absconding; rather he had duly replied to the notice and,in fact, had also given his locations. Thus, the police were well aware ofhis location and hence, they could arrest him whenever they chose.

11.6. As regards the cases against the respondent, it has beenargued that the respondent is a well-known political team leader and asubstantial number of cases were filed against him by the State policeitself but, in none of such cases, the respondent was involved in theoffences pertaining to the NDPS Act.

11.6.1. It has also been submitted that in Hare Street PS CaseNo. 108 dated 19.02.2015, the respondent was convicted only underSection 353 IPC and his appeal against conviction is pending and sentencehas been suspended. It has also been pointed out that SLP(Crl.) No.5053 of 2015, filed by the respondent against the bail cancellation orderis also pending, wherein this Court has granted interim relief against bailcancellation.

11.6.2. It has further been submitted that the entire case is aconcocted one and no connecting material is available in the record. Asregards the allegations about removing of data from the hard-disk ofCCTV footage of the respondent’s residence, it is submitted that nosuch hard-disk was recovered from the respondent.

11.7. The supplementary submissions made on behalf of theappellant have also been countered with further supplementarysubmissions on behalf of the respondent wherein, it has been reiteratedthat as per the FIR, the said three occupants of the motorcar pointed outas to where the contraband (cocaine) was concealed in the vehicle. Asregards the purported statements of the said three occupants underSection 161 CrPC, it has been contended that the three statementsannexed with the supplementary written submissions on behalf of the A

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AState were neither in the charge-sheet nor in the record of the TrialCourt. On the contrary, one statement of Pamela Goswami, recorded on19.02.2021, has been annexed on behalf of the respondent wherein, sheallegedly confessed to be a dealer in drugs and it is submitted that thesame is a part of the charge-sheet. It has also been alleged that 10months prior to the seizure in question, the father of Pamela GoswamiBhad made a written complaint to the Commissioner of Police, Kolkataalleging that Prabir Kumar De had made Pamela Goswami a drug addict.Moreover, the observations made by the High Court in the order dated06.01.2022, while granting bail to the co-accused Amrita Singh@ Sweetyhave also been referred.C11.8. It has been reasserted that the allegations levelled againstthe respondent of financing illicit trafficking is not made out nor anycase of harbouring offenders is made out. The decision in the case ofRhea Chakraborty (supra) has been relied upon.

12. We have given anxious consideration to the rival submissionsDand have scanned through the material placed before us.

13. At the first blush, a few factors appear operating against therespondent and it appears questionable if the respondent was entitled tobe granted bail in this matter, particularly having regard to the facts andcircumstances that: (a) the accusation is essentially of financing theEtrafficking of contraband and also of harbouring offenders, which relatesto the offence under Section 27A NDPS Act and to which, the rigoursof Section 37 NDPS Act do apply; (b) the accusation is supported byprima facie evidence, including the statements of witnesses as alsoCCTV footage and call data records; (c) on 23.02.2021, even thoughFthe respondent attempted to question the notice summoning him to appearat 04:00 p.m. and the High Court dismissed his writ petition but, he didnot appear and was apprehended later in the night at a distant place; (d)the prosecution has shown that the respondent was involved in as manyas 53 criminal cases and he has been convicted in at least two of them;and (e) the prosecution has alleged that even in relation to this particularGcase, the respondent had been separately charge-sheeted for the offencepertaining to Section 353 IPC and he has attempted to threaten the lawenforcing agencies and personnel.

13.1. However, a comprehensive look at the salient and corefeatures of this case persuades us to endorse the view taken by theH

High Court as being a possible view of the matter, particularly in regardto the doubt on the prosecution case and consequentially a reasonableground to believe against the complicity of the respondent.

14. The accusation against the respondent pertaining to offenceunder Section 27A NDPS Act is essentially based on the prosecutionstory that the respondent, nursing a grudge against the said two occupantsof the motorcar namely, Prabir Kumar De and Pamela Goswami, hatchedthe conspiracy to have them implicated in an NDPS Act case and inpursuance thereof, got the contraband procured through the co-accusedAmrita Singh@ Sweety after making payment for the same; got thecontraband planted in the said motorcar through the other co-accusedAmrit Raj Singh; and extended shelter to Amrit Raj Singh before andafter the event of planting. This story is sought to be supported andstrengthened with the statements of the said witnesses Md. Nasir Khanand Nishat Alam @ Ruman Khan, as recorded under Section 161 CrPCon 27.02.2021 and 28.02.2021 respectively as also their statements underSection 164 CrPC as recorded on 30.03.2021.

14.1. Though, prima facie, it appears that the aforesaid statementsof the witnesses have not as such gone into consideration of the HighCourt but, a close look at the impugned order makes it clear that inparagraph 7 thereof, the High Court has noticed as to what was containedin the initial FIR and what was suggested in the charge-sheet; and hasfound, prima facie, that the story in the charge-sheet, about therespondent having got contraband item planted in the motorcar in whichthe said three persons were travelling to put them in trouble because ofpersonal enmity, was of considerable doubt. The High Court has, and inour view rightly so, not elaborated on all the features of evidence so asto leave the relevant aspects open for trial. However, in view of thecontentions advanced before us, it may be observed that at the presentstage, the contention on the part of the respondent cannot be ignoredthat if such statements of the said two witnesses were recorded on27.02.2021 and 28.02.2021, there was no material with the investigatingagency to summon him on 22.02.2021. This is apart from the fact thatthe statements of the said two witnesses, prima facie give rise to somereasonable questions, as to why were they kept as companions whilethe respondent and the co-accused Amrita Singh @Sweety purportedlycarried out the alleged clandestine deals with exchange of contrabandand the currency?

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A15. In response to the said part of the contentions of respondentthat there was no material with the prosecution to summon him on22.02.2021, it has been alleged on behalf of the appellant that the saidthree occupants of motorcar made their statements which were recordedunder Section 161 CrPC and those statements gave out the backgroundof animosity of the respondent as also the methodology employed by theBrespondent through the co-accused Amrit Raj Singh by getting thecontraband planted in the vehicle. Serious objections have been raisedon behalf of the respondent as regards the said three statements of themotorcar occupants with the submissions that the same were not part ofthe charge-sheet and were not on the record of the Trial Court. ThisCapart, on behalf of the respondent, another statement of Pamela Goswami,said to have been recorded on the date of seizure i.e., 19.02.2021 hasbeen placed before us while submitting that the same is a part of therecord and therein, she has admitted herself to be a person dealing innarcotic drugs. Having regard to the circumstances of the case and thesubject-matter of this appeal, we do not propose to enter into thisDcontroversy as to whether the alleged statements of the said motorcaroccupants do form a part of the Trial Court record or not nor do wepropose to make any observation as regards evidentiary value thereofbut, after examining the same on their face value and taking note of theother relevant material on record, we are constrained to observe thatEthe alleged statements of motorcar occupants give rise to more questionsrather than supplying necessary answers, as noticed infra.

16. According to the prosecution, the FIR in question for offencesunder Sections 21(b) and 29 NDPS Act came to be registered on thebasis of a written complaint dated 19.02.2021, as submitted to the OfficerFIn-Charge of New Alipore Police Station, Kolkata by Somnath Sarkar,SI after the aforesaid proceedings of search of the said motorcar as alsoseizure of contraband from the motorcar. This complaint dated 19.02.2021is an admitted document of the appellant and is rather the foundation ofthe entire matter. A few passages of the said written complaint, disclosingas to what exactly transpired in detaining the vehicle and as to how theGcontraband was recovered, could be usefully noticed as under: - “….At about 11:30 hrs we reached at Nalini Ranjan Avenue, underNew Alipore P.S. area. Source led us to the spot and maintainedwatch. At about 13:00 hrs source pointed out towards one marooncolored Honda BR-V car was coming along from West to East H

direction. The said vehicle was detained with the help of otherraiding team members on the roadin front of a house named asParameshwari Sadan at 92/93 Nalini Ranjan Avenue, block-B(formerly 24N, Block-B), PS-New Alipore, Kol-53 and found twomale and one female persons sited inside of the maroon coloredcar bearing no. WB06P0233. One male person sited at driver sitand another male person waws sited next to the driver seat (front)and one female person sited at rear seat of the said vehicle/car.We disclosed our identity for the purpose of detention…

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…..After that the undesigned started to search the male detaineesand the said vehicle/car one by one on the spot in presence of allmaintaining all legal formalities and at that time the lady constablePema Lamu Sherpa started to search the female detaineemaintaining decency and decorum. During search of the vehiclebearing no. WB06P0233 on being asked the all detainees of thevehicle bearing no. WB06P0233 pointed out towards at the rearzip cover of the left front seat and under driver’s seat of the saidvehicle where the contravened drugs/cocaine were found inconcealed manner in black colored polythene packets. Thereafterundersigned took out two black colored polythene packets andopened those one by one. On being opened the packet found inthe left side rear zip cover of driver seat, found 35 pieces transparentzip pouch each containing white colored power (sic) said to becocaine and weighing about 40 gms. On being opened the packetsfound under the driver seat, found 31 pieces transparent zip poucheach containing white coloured power (sic) said to be cocaineand weighing about 36 gms….”

(emphasis supplied)

16.1. Two major aspects emerge from the extraction foregoing:one, that before interception, the motorcar in question was in motionand was moving from west to east direction, which was detained bypolice with the help of other raiding team members; and second, thatduring search, the occupants of motorcar pointed towards two specificplaces inside the vehicle where the contraband drug/cocaine was placedin a concealed manner i.e., rear zip cover of the left front seat andbeneath the driver’s seat. Both these assertions, when examined withreference to the alleged statements of the three motorcar-occupants, A

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Aas placed before us with supplementary written submissions, theirincompatibility and contradiction strikingly come to the fore. Accordingto the said statements, a few minutes before the alleged ‘encircling’ ofmotorcar by the raiding team, the said occupants had come out of thevehicle and Amrit Raj Singh remained inside for changing his clothes;and he spent a minimum of 10 to 15 minutes inside the vehicle whenBthese three persons allegedly saw him bending down and doingsomething on the floor of the car! The story, as sought to be suggestedin these statements, contradicts the fundamental facts stated in theinitial complaint that the search and raiding team persons had in factstopped and detained the moving vehicle; and that the occupants ofCmotorcar pointed towards the specific places in the vehicle where thecontraband items were concealed.

16.2. When the assertions of the SI lodging the written complaintafter search of the vehicle and seizure of contraband on 19.02.2021 arepitted against the alleged statements of the three occupants of the vehicle,Dthe question does arise as to which of the two contradictory versions isto be accepted at this stage? In our view, at the present stage and onprima facie consideration of the matter, the only logical approach couldbe to proceed on the basis of the version of the SI as given in the writtencomplaint because, it is not the case of the appellant that the version inthe written complaint is not correct. In this view of the matter, the veryEedifice of the prosecution case against the respondent crumbles downand falls flat. Putting it differently, the story of planting of contraband inthe vehicle in question by some third person like Amrit Raj Singh couldonly be disbelieved, for being squarely contrary to the initial case of theprosecution, as stated in the written complaint.F

16.3. Once the veracity of prosecution case against the respondentis in serious doubt, further analysis on the other factors about financingthe drug trafficking and harbouring of offender need not be undertakenbecause, when the story of planting of contraband is removed out ofconsideration, all other factors by which respondent is sought to beGconnected with such alleged planting could only be regarded as falseand fanciful, at least at this stage.

16.4. Hence, suffice it to observe for the present purpose that inthe given set of facts and circumstances, the High Court has rightlyfound that applicability of Section 27A NDPS Act is seriously questionableHin this case. That being the position; and there being otherwise no recovery from the respondent and the quantity in question being also intermediatequantity, the rigours of Section 37 NDPS Act do not apply to the presentcase.

17. After the discussion aforesaid, we are constrained to reiteratethat the High Court has dealt with this part of the matter without muchelaboration and rightly so, for only the prayer of bail being underconsideration. However, we have considered it appropriate to delvefarther in the matter in view of the submissions made and materialpresented before us. In any case, for what has been discussedhereinabove, the result precisely remains the same as indicated by theHigh Court, that diametrically opposite case in the charge-sheet thanthat alleged in FIR gives rise to serious doubt on the veracity of theprosecution case against the respondent. In this view of the matter, theother part of submissions and reference to the cases of Md. NawazKhan and Rhea Chakraborty (supra) do not require much elaboration.As aforesaid, when the case against the respondent of getting thecontraband planted in the vehicle in question is prima facie disbelievedbecause of material available on record, the questions concerningpossession of contraband, its quantity or financing are all renderedredundant. In this view of the matter, reference to the other pieces ofsupporting evidence like the alleged statements of the said Md. NasirKhan and Nishat Alam @ Ruman Khan as also the alleged CCTV footageand call data records cannot provide sustenance to the prosecution caseagainst the respondent, at least at this stage.

18. The other segment of the relevant aspects of this case pertainsto the conduct of the respondent. In this regard, a few noticeable factsand factors against him could be summarised thus: he has been involvedin as many as 53 criminal cases and had been convicted in two of them;there had been several allegations against him of threatening theInvestigating Officers and public servants from time to time; even in thepresent case too, he had allegedly threatened and misbehaved with thepolice officers and has been charge-sheeted for offences under Sections353 and 506 IPC; and on 23.02.2021, he did not appear before theInvestigating Officer even after dismissal of his writ petition by the HighCourt and was arrested at a faraway place. These facts and factors,prima facie, give rise to the question as to whether the respondent wasentitled to be granted the indulgence of bail. The High Court has takenthe view that, prima facie, the respondent might not have committed ABCDEF

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Athe offence he has been charged with in this case; and, looking to hispast history, there was nothing on record to suggest that he was likely tocommit an offence under the NDPS Act while on bail. The High Courthas, in the totality of circumstances, taken the view that the respondentwas entitled for bail on stringent conditions and has imposed additionalconditions as noticed hereinbefore.B

18.1. Although, the past history of the respondent and even hisconduct in relation to the processes concerning the present case giverise to a few questions but, the strong countervailing factor in the presentcase is the prima facie indication that he is being sought to be framedby concoctions and baseless stories. Another factor noticeable is thatCthe respondent has not been involved in any NDPS Act case or any akinoffence in the past. Interestingly, it is noticed from the material placedon record that nothing of any contraband article has been recoveredfrom the respondent or from any place under his exclusive control. Thisfactor further adds on to the doubt as to whether the respondent had atDall been indulgent in narcotics or any contraband? That being the position,the view as taken by the High Court cannot be said to be an altogetherunacceptable or impossible view of the matter. Moreover, it cannot besaid that the respondent was consciously seeking to abscond on 23.02.2021merely because he was found in the night at Purba Bardhaman and notat Kolkata. In any case, the aspect relating to tendency to flee has beenEduly taken care of with the conditions as imposed by the High Court.The other submissions with reference to the decision in the case ofPrasanta Kumar Sarkar (supra) hardly make out a case for interferenceparticularly looking to the nature of evidence sought to be adduced bythe prosecution against the respondent. In this regard, we would hastenFto observe that apart from the stringent conditions already imposed bythe High Court, it is always open for the prosecution to seek impositionof any further condition or even to seek cancellation of the bail grantedto the respondent, in case of any fault on his part in due adherence to theconditions already imposed.

G19. In view of the above, we find no reason to consider interferencein the order passed by the High Court granting bail to the respondentwith specific conditions.

20. Before concluding on the matter, we deem it appropriate toobserve that none of the comments herein would be of any bearing onHthe final view to be taken by the Trial Court after the trial because, the observations herein are only of prima facie view and that too, so farrelevant for the purpose of the question of grant of bail to therespondent.

21. Accordingly, and in view of the above, this appeal fails and isdismissed subject to the observations foregoing.

Bibhuti Bhushan Bose

Appeal dismissed.

(Assisted by : Preetam Bharti, LCRA)

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