Santosh Kullu v. The State
IN THE HIGH COURT AT CALCUTTA
[CIRCUIT BENCH AT PORT BLAIR] ...
CRM(NDPS)/2/2024 Santosh Kullu Vs.
The State Mr. D.Ilango ... for the petitioner Mr. A.S.Zinu ... for the State February 8, 2024 [SR] Item No.2 This is an application for bail.
This matter was kept today since one page was missing from the chargesheet in the records produced before the Court yesterday. Learned counsel appearing for the prosecution has produced a typed copy of the chargesheet today along with charge sheet after incorporating the missing page. The allegation against the petitioner is under section 29 of the NDPS Act, 1985 which contemplates punishment for abetment and criminal conspiracy. The facts brought before the Court are stated in brief.
The contraband narcotic substance above commercial quantity was recovered from one Aanchal Halder on 18.10.2023 in front of JNRM College, Port Blair. On 20.10.2023, Aanchal Halder named one S.Mohan and made a specific statement that Aanchal Halder received a packet from S.Mohan on 16.10.2023 at New Lady Surgical Ward, G.B.Pant Hospital. S. Mohan, in turn, named the petitioner who was summoned to P.S.Aberdeen and interrogated on 21.10.2023. The petitioner stated to the police that the petitioner had supplied the packet containing the narcotic substance to
S.Mohan on 15.10.2023 at the Tea Canteen, G.B.Pant Hospital. The petitioner also stated that he found the packet at seashore near his home. The prosecution added section 29 of the NDPS Act, 1985 to the charges on the basis of the statement. The petitioner was arrested on 21.10.2023. The above facts are narrated from the contents of the chargesheet. The chargesheet further reveals that the mobile phone of the petitioner was seized and the petitioner's house was also searched in the presence of the independent witnesses. Nothing was recovered during the search operation. The prosecution's case is based on a CCTV footage taken within the precincts of G.B.Pant Hospital. The chargesheet states that the CCTV footage shows that the petitioner met S.Mohan on 15.10.2023 at 12:33 hours inside the Tea Canteen at G.B.
Pant Hospital and handed over a 'package' to S.Mohan. The other CCTV footage shows that Aanchal Halder met S.Mohan near the corridor of the New Lady Surgical Ward on 16.10.2023 at 1808 hours at G.B.Pant Hospital where S.Mohan kept a packet containing narcotic substance inside the helmet of Aanchal Halder.
Since the CCTV footage constitutes the primary evidence of the prosecution, it is relevant to state that there are two distinct parts with the CCTV footage. The first part was taken on 15.10.2023 at 1233 hours inside the Tea Canteen at G.B.Pant Hospital showing that the petitioner met S.Mohan and handed over a 'package' to S.Mohan. The second part shows that S.Mohan keept a packet containing narcotic substance inside the helmet of Aanchal Halder on 16.10.2023 at 18.08 hours.
Apart from the statement made by S.Mohan and the petitioner to the police, the CCTV footage does not link the two separate and distinct footages for incriminating the petitioner in respect of the offence.
The petitioner is absent in the second footage that is where S.Mohan allegedly handed over the package to Aanchal Halder. The petitioner handed over the package to S.Mohan on the preceding day would not automatically mean that the same package, which was handed over by the petitioner to S.Mohan on the previous day was handed over to Aanchal Halder on the following day.
It is also relevant to say that the petitioner's alleged confessional statement made to the police is a statement under section 161 of the Code of Criminal Procedure and could not be admissible as evidence.
Hence, apart from the CCTV footage, there is no evidence of the petitioner being directly involved in the alleged offence. Admittedly, narcotic substance above commercial quantity was not recovered from the petitioner. Section 29 of the NDPS Act which deals with punishment and criminal conspiracy necessarily implies a common object and a meeting of minds towards that object. The CCTV footage does not substantiate that there was any meeting of minds between the petitioner and Aanchal Halder. To repeat, the recovery of narcotic substance was made from Aanchal Halder.
The judgment of the Supreme Court in Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1 has been placed before us.
The Supreme Court considered the fundamental right of a person against self-incriminatory statements. The above reasons persuade us to grant the prayer for bail.
CRM(NDPS)/2/2024 is accordingly allowed and disposed of.
The petitioner shall be released on bail upon furnishing a bond of Rs. 10,000/- (rupees ten thousand only) with two sureties of like amount each, one of who shall be local and to the satisfaction of the Ld. Special Court under the NDPS Act, South Andaman, Port Blair. The petitioner shall not influence witnesses or tamper with evidence and also make himself available to the Investigating Officer as and when the petitioner is required to do so.
We make it clear that the observations made above are only in relation to the petitioner's prayer for bail. Parties to act on a server copy of this order duly downloaded from the official website of the Hon'ble High Court at Calcutta.
( Moushumi Bhattacharya, J. ) ( Hiranmay Bhattacharyya, J. )