AB/179/2013 of Harisadhan Deb Vs State Of Tripura on 11 December 2013

This is the second approach made on behalf of the petitioner Harisadhan Deb under Section 438 of Cr.P.C. prayingfor a direction to release him on bail, in the event of his arrest, in connection with Bishalgarh P.S. Case No. 90 of2013, registered under Section 21 of the N.D.P.S. Act. Heard learned counsel, Mr. B. Nandi Majumder for thepetitioner and learned Addl. P.P., Mr. R. C. Debnath for the State-respondent. At the outset learned counsel, Mr.Nandi Majumder has submitted that certain salient points were not raised when the earlier bail application wasmoved and he placed a copy of the order passed by this Court on 04.06.2013 in Anticipatory Bail Application No. 51of 2013. 1200 bottles of phensedyl were seized, allegedly from the possession of the accused petitioner i.e. from hishouse and from a vehicle kept in his house. P.S.I. namely Darbajay Reang lodged the FIR. The investigation wasentrusted with another S.I. Prabir Debbarma who in the meantime, submitted charge sheet against the accused-petitioner. The sum and substance of the submission made by learned counsel, Mr. Nandi Majumder is that thehouse from where the alleged phensedyl bottles were seized, belonged to the accused-petitioner and other brothersand relatives and the house is in his father&&&&&s name. There is no evidence that the house is absolutelybelonged to the accused-petitioner so as to draw a preliminary presumption that the accused-petitioner had storedthe phensedyl in the vehicle and in his house. He has also contended that in the FIR itself it is mentioned that thevehicle belonged to one Narayan Saha but neither Narayan Saha has been made accused nor he has been made awitness in the case. In the seizure list the police officer mentioned that the seizure has been made from the house aswell as from the vehicle. But it is not mentioned how much quantity was seized from the house and how much fromthe vehicle. Learned counsel, therefore, submitted that the seizure list itself is vague and a false case has beenmanufactured against the accused-petitioner. It is further contended by learned counsel, Mr. Nandi Majumder that ifthe codeine quantity of each of the bottle is taken into account, it would be around 220 grams of codeine in total andthat it does not come within the purview of commercial quantity and therefore, there may not be any restriction ingranting bail to the accused- petitioner so far the provisions of section 37 of NDPS is concerned. It is the furthersubmission of learned counsel, Mr. Nandi Majumder that the case has ended in charge-sheet but the charge sheet isinherently defective and the statements so far recorded by I.O. appear that those are mechanically recorded and theevidence so far available on record may not result into an ultimate punishment of the accused-petitoner and undersuch circumstances if the accused-petitoner is kept detained in custody at this stage, he will suffer unnecessarily. Tosupport his contention he has also referred the decision of the Apex Court in the case of Bharat Chaudhury & Anr. V.State of Bihar & Anr. Reported in (2003) 8 SCC 77 and submitted that submission of charge sheet itself cannot be aground to reject the prayer of anticipatory bail. Learned Addl. P.P., on the other hand, has submitted that 1200bottles of phensedyl were seized from the house of the accused-petitioner and it is the definite case of theprosecution that the accused-petitioner kept it in the vehicle as well as in his house and the I.O. has seized it withoutseparately mentioning the quantity seized from the house and the vehicle and that does not mean that the articlewas not seized from the house of the accused-petitioner. It is further submitted by learned Addl. P.P. that themanner of investigation cannot be said to be satisfactory but for that reason an offender should not be set free andin that case society as a whole will suffer. The arguments what is now made by learned counsel, Mr. NandiMajumder, as it appears, were also made on the earlier occasion

. Learned Addl. P.P., on the other hand, has submitted that 1200bottles of phensedyl were seized from the house of the accused-petitioner and it is the definite case of theprosecution that the accused-petitioner kept it in the vehicle as well as in his house and the I.O. has seized it withoutseparately mentioning the quantity seized from the house and the vehicle and that does not mean that the articlewas not seized from the house of the accused-petitioner. It is further submitted by learned Addl. P.P. that themanner of investigation cannot be said to be satisfactory but for that reason an offender should not be set free andin that case society as a whole will suffer. The arguments what is now made by learned counsel, Mr. NandiMajumder, as it appears, were also made on the earlier occasion. May be the quantity of the codeine contents inthose bottles of phensedyl were not of commercial quantity but that cannot make out a case for the accused-petitioner to get pre arrest bail. With a definite finding the earlier bail application was rejected. Since charge sheethas already been submitted, the points raised by learned counsel, Mr. Nandi Majumder, no doubt are relevant pointsto be considered for bail if the accused-petitioner surrenders before the Special Court and pray for bail. TheSupreme Court decision what is referred by learned counsel, Mr. Nandi Majumder cannot be applied flatly in all thecases since the case in connection with which the Supreme Court judgment came, was registered under Section504/498(A) and 406 of IPC and in the peculiar facts and circumstances of that case, the Supreme Court has observedthat in given circumstance of a particular case even after taking of cognizance or submission of charge-sheet, pre-arrest bail may be granted. But I find no reason to apply the ratio of that judgment in each and every case whatevermay be the nature and character of the case is concerned. This is a case under the NDPS Act. Prima facie material,as I find, is that certain quantity of Phensedyl bottles were alleged to have seized from the house of the accused andcertain quantity from a vehicle belonged to another person, kept in the courtyard of the accused-petitioner and hisother brothers. Other circumstances are to be considered by the Special Judge if the accused petitioner surrendersbefore the Special Court with a prayer for bail and I find no reason at all to grant anticipatory bail again on thisground. Hence, prayer for pre-arrest bail stands rejected. The accused-petitioner if so desire may surrender beforethe Special Judge and may pray for bail on the grounds what is submitted before this Court or on any other groundas the case may be. In the event, the accused-petitioner surrenders before the learned Special Judge, learnedSpecial Judge shall consider the bail application without being influenced by any observation made by this Court inthis order and in the earlier order passed by this Court. The Bail application accordingly stands disposed of.