Prabal Sen@Kutti@Probal Sen v. The State Of West Bengal

14.07.2023 Item no.59.

Court No.01.

S. De (Allowed) Circuit Bench of Calcutta High Court at Jalpaiguri CRM (NDPS) No. 533 of 2023 In Re: An Application for Bail under Section 439 of the Code of Criminal Procedure filed on 11.07.2023 in connection with Alipurduar Police Station Case No. 463 of 2022 dated 14.09.2022 under Section 21(c)/22/25 of the Narcotic Drugs and Psychotropic Substances Act.

And In the matter of : Prabal Sen @ Kutti @ Probal Sen. ......Petitioner.

Mr. Sourav Ganguly, Mr. Bibek Tarafder, Mr. Gopal Roy, ......for the Petitioner.

Mr. Aditi Shankar Chakraborty, Ld. APP, Mr. Kallol Nag, ......for the State.

Admittedly, commercial quantity of contraband items was recovered from the possession of the petitioner. However, the petitioner says that the Memo of Arrest is irregular. There is no signature of a member of the family of the accused or a respectable person of the locality 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 such a person. This is a gross illegality which entitles the petitioner 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 petitioner has been able to overcome the restriction under Section 37 of the Narcotic Drugs and Psychotropic Substances Act. We, therefore, allow the petitioner's prayer for bail also considering that chargesheet has been filed after completion of investigation and that the petitioner in custody since September 2022.

Accordingly, we direct that the petitioner, namely Prabal Sen @ Kutti @ Probal Sen shall be released on bail upon furnishing a bond of Rs.20,000/- with two registered sureties of like amount each, to the satisfaction of the learned Judge, Special Court, (under NDPS Act), Jalpaiguri on condition that the present accused petitioner 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 petitioner fails to adhere to any of the conditions stipulated above without justifiable cause, the trial court shall be at liberty to cancel the petitioner's 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.)