Calcutta High CourtCRM(NDPS)/523/2023allowed

Samad Molla @ Chamad And ORS v. The State Of West Bengal

2023-07-12Hon'Ble Justice Arijit Banerjee,Hon'Ble Justice Partha Sarathi Sen3 pages

12.07.2023 Item no.35.

Court No.01.

S. De (Allowed) Circuit Bench of Calcutta High Court at Jalpaiguri CRM (NDPS) No. 523 of 2023 In Re: An Application for Bail under Section 439 of the Code of Criminal Procedure filed on 10.07.2023 in connection with NJP Police Station Case No. 630 of 2022 dated 15.06.2022 under Section 21(c)/22(c)/25/28/29 of the Narcotic Drugs and Psychotropic Substances Act.

And In the matter of : Samad Molla @ Chamad & Ors. ......Petitioners.

Mr. Pratibha Ray, ......for the Petitioners.

Mr. Aditi Shankar Chakraborty, Ld. APP, Mr. Sourav Gangully, ......for the State.

Admittedly, commercial quantity of contraband items was recovered from the possession of the petitioners. However, the petitioners say that the Memo of Arrest is irregular. There is no signature of an independent person against column no.10 of the Memo of Arrest. This is a mandatory requirement as pronounced by the Hon'ble Supreme Court in the case of D.K. Basu Vs. State of West Bengal reported in AIR 1997 Supreme Court 610. Section 41B of Cr.P.C. also mandates that Memo of Arrest shall be witnessed by an independent person. This is a gross illegality which entitles the petitioners to bail.

We have seen the material in the case diary including the Arrest Memo. Indeed, column no.10 is blank.

Accordingly, we are constrained to hold that the petitioners have been able to overcome the restriction under Section 37 of the Narcotic Drugs and Psychotropic Substances Act. We, therefore, allow the petitioners' prayer for bail also considering that chargesheet has been filed after completion of investigation and that the petitioners are in custody since May 2022.

Accordingly, we direct that the petitioners, namely Samad Molla @ Chamad, Jhantu Sarkar and Soyeb Nabi Sekh shall be released on bail upon furnishing a bond of Rs.20,000/- each with two registered sureties of like amount each, to the satisfaction of the learned Special Judge, (under NDPS Act), Jalpaiguri on condition that the present accused petitioners shall appear before the learned Trial Court on each date of substantive hearing and shall not leave the jurisdiction of the learned Trial Court unless such condition has been relaxed by the learned Trial Court.

In the event the petitioners fail to adhere to any of the conditions stipulated above without justifiable cause, the trial court shall be at liberty to cancel the petitioners' bail in accordance with law without further reference to this Court. Observations made in this order are tentative and only for the purpose of disposing of this bail application. The application for bail is, accordingly, allowed.

All parties shall act in terms of server copy of the order downloaded from the official website of this Court. (Partha Sarathi Sen, J.) (Arijit Banerjee, J.)