Lajibul Hussain v. The State Of West Bengal

In the High Court at Calcutta Circuit Bench At Jalpaiguri Appellate Side 28.02.2023 sdas allowed CRM (NDPS) No. 232 of 2023 In Re:- An application for bail under Section 439 of the Code of Criminal Procedure in connection with Jiagaon Police Station Case No. 135 of 2022 dated 06.06.2022 under Section 22(c ) of the NDPS Act.

And In Re : Lajibul Hussain ..... petitioner Mr. Biswarup Roy .....for the petitioner Mr. Aditi Shankar Chakraborty, learned APP Mr. Ujjwal Luksom Mr. Aniruddha Biswas ........ for the State Learned Counsel for the petitioner submits that he is in custody from 6th June, 2022. He had applied for statutory bail. On the other hand, prosecution applied for extension of period of detention under the proviso to Section 36A(4) of the NDPS Act. Extension was granted on the sole ground of non-availability of chemical examiner's report. This is contrary to the directions of this Court in Subhas Yadav vs. The State of West Bengal1. Hence, he prays for bail.

Learned Counsel for the State opposes the bail prayer. 1 2023 SCC OnLine Cal 313

We have considered the materials on record. Petitioner is in custody for more than 180 days. Prayer for extension of his detention under the proviso to Section 36A(4) of the NDPS Act was made by the Public Prosecutor. We have perused the application. Sole ground of such extension is non-availability of chemical examiner's report. In Subhas Yadav vs. The State of West Bengal (supra) a Special Bench of this Court, inter alia, held that extension of period of detention under the proviso to Section 36A(4) of the NDPS Act on the sole ground that the chemical examiner's report is not available is unjustified.

Facts of the present case show apart from the nonavailability of chemical examiner's report no other ground justifying further detention is either pleaded in the application or reflected in the order passed by the Special Court. Under such circumstances, we are of the opinion that extension of period of detention of the petitioner under the proviso of Section 36A(4) of the NDPS Act is unjustified and he is entitled to statutory bail. Accordingly, we are inclined to grant bail to the petitioner. Accordingly, we direct that the petitioner shall be released on bail upon furnishing a bond of Rs.10,000/- with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Additional Sessions and Special Judge, 1st Court (under NDPS Act) at Jalpaiguri, subject to the condition that the petitioner shall appear before the trial court on every date

of hearing until further orders and shall not intimidate the witnesses and/or tamper with evidence in any manner whatsoever. In the event the petitioner fails to appear before the trial court without justifiable cause, the trial court shall be at liberty to cancel his bail automatically without further reference to this Court.

The application for bail is, accordingly, allowed. (Subhendu Samanta, J.) (Joymalya Bagchi, J.)