Shri Nirod Biswas v. The State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CRR/2/2023 Shri Nirod Biswas Vs.

The State Mr. Gopala Binnu Kumar ... for the petitioner Mr. Salim Mohammed ... for the State February 15, 2023 [SR] Item No.64 Heard Mr. Gopala Binnu Kumar, learned counsel for the petitioner and Mr. Salim Mohammed, learned counsel for the State/Andaman and Nicobar Administration. This is an application under section 482 of Code of Criminal Procedure challenging the order dated 16th December, 2022 passed by the learned Additional Sessions Judge, North and Middle Andaman, Mayabunder.

According to the prosecution allegation, about 2 kg of ganja was seized from the possession of the petitioner. He was taken to custody on 28.08.2022. The petitioner moved an application for interim bail before the said Court. The prayer for interim bail was allowed by order dated 09.12.2022. The tenor of the order dated 09.12.2022 is like an order granting regular bail, than interim bail, though it is observed to the effect that " the petition of the accused person stands allowed but in interim form with the condition that ........". Though such order was passed, no time limit for interim bail was fixed.

The petitioner was released on bail on the basis of the aforesaid order. On 16.12.2022, the present petitioner was present in the Court and filed his hazira. Unnecessarily the petitioner filed a petition before the Court for extension of interim bail though such petition was not necessary in view of the tenor of the order, as discussed supra. Learned Trial Court took up the application for extension of interim bail on the ground stated therein and rejected the application taking aid of section 37 of the NDPS Act. Learned Trial Court has discussed at length the importance of section 37 of the NDPS Act, the meaning of expressions used therein, the events on satisfaction of which, bail can be granted in view of bar under section 37 of the NDPS Act. After a lengthy discussion, learned Trial Court has rejected the application of the petitioner for extension of interim bail.

Aforesaid order of the Trial Court is under challenge in this petition.

It is submitted by learned counsel for the petitioner that as the petitioner was granted bail on 09.12.2022, his bail should not have been cancelled on 16.12.2022. As discussed supra, this is not a case of cancellation of bail. The petitioner was granted interim bail but without fixing any time limit. Such bail with certain conditions without time limit being fixed was as good as regular bail. The petitioner committed mistake in his simplicity by praying for extension of interim bail which was not at all required and/or not at all a necessity.

Learned Trial Court painstakingly by order dated 16.12.2022 has discussed the ambit of section 37 of NDPS Act without being cognizant of the position of law that when a person is charged under section 20(b)(ii)(B) of the NDPS Act, the charge is in respect of quantity of ganja in between "more than small quantity and less than commercial quantity". When many accused persons who are mere carrier being not the member of cartel suffered the agony of imprisonment in view of the rigour of section 37 of NDPS Act, the competent legislature though it appropriate to make a division among the "small quantity", "more than small quantity and less commercial quantity" and "commercial quantity". So far as "small quantity" and "less then commercial quantity" is concerned, rigour of section 37 of the NDPS Act is not applicable to such action. So far as a commercial quantity is concerned, rigour of section 37 of the NDPS Act with full force is applicable.

Taking into consideration all the aspects of the facts, the simplicity of the petitioner and the counsel he engaged, I deem it just and proper to invoke my plenary power under Article 226 of the Constitution of India to save the petitioner from going through the grind of procedural law. Accordingly, I direct the Additional Sessions Judge, North and Middle Andaman, Mayabunder to grant bail to the petitioner in special NDPS G.R. Case No. 4 of 2022 on such terms and conditions as deemed just and proper by him in the facts and circumstances of the case, on proper application being filed under section 439 of the Cr.P.C by the

petitioner before him. The signature of the petitioner on the wakalatanama should be duly endorsed by the jail authority. It is made clear that on the date of filing of application for bail, it should be disposed of on the same day in accordance with the aforesaid observation.

With the aforesaid observation, CRR/2/2023 is dispose of.

( Chitta Ranjan Dash, J.)