Shri Ashok Biswas v. The State

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ...

CRM(SB)/3/2022 With CRA(SB)/5/2022 Shri Ashok Biswas ... Petitioner Vs.

The State ... Respondent Mr. D. Ilango ... for the petitioner Ms. A.S.Zinu ... for the respondent November 24, 2022 [SR] Item Nos.1&2 This is an application for bail in connection with an appeal.

Heard Mr. D.Ilango, Learned Counsel, appearing for the petitioner/accused. Heard Ms.A.S.Zinu, Learned Counsel, appearing for the prosecution.

Mr. Ilango submits that there are serious discrepancies in the assessment of evidence by the learned Trial Court. Although the petitioner/accused was apprehended and thereafter convicted under the NDPS Act for possession of contraband, there is no plausible evidence to show that the contraband was actually recovered from the possession of the petitioner and further that the ship from which the petitioner allegedly collected the contraband was docked on that date at the place of seizure, which is Mayabunder Jetty. Describing the arrest as a fabricated exercise conducted by the Police, Learned Counsel for the petitioner submits that the provisions of Section 42 of the NDPS Act requiring the Police/Investigating Officer to reduce any information received

in writing and send the same to his superior officer, it transpires from the evidence that the Investigating Officer of this case failed to comply with such statutory requirement. It is also argued that the seizure list witnesses signed at the Police Station in the late evening whereas the alleged seizure list took place at the Jetty during day light. Per contra, Ms. A.S.Zinu, Learned Counsel appearing for the Prosecution, submits that the quantity seized from the petitioner/accused is substantial. It is submitted that there is direct ocular evidence of the accused being apprehended at the Jetty while coming out with a sack on his head.

It is submitted that there is no distortion in the ocular evidence and several witnesses for the prosecution as well as independent witnesses who signed the Seizure List, identified the accused by name and from the sack which he was carrying on his head, two packets were recovered which was found to be containing contraband. Ocular evidence has also been recorded by prosecution witnesses that the petitioner/accused upon seeing the police at the jetty tried to turn back at which point he was apprehended.

Having heard the parties and considering the materials placed, this Court is of the view that the facts of the present case do not warrant that the petitioner be granted the privilege of bail. This Court is also of the view that the point taken by Learned Counsel for the petitioner connected to infraction of the provisions of the NDPS Act can be taken at the stage of trial.

Accordingly, the prayer for bail stands refused. CRM(SB)/3/2022 stands accordingly dismissed.

All parties to act in terms of a copy of the order downloaded from the official website of the Court. Urgent Xerox certified copy of this order be supplied to the Learned Counsel for the respective parties upon compliance of usual formalities.

( Subrata Talukdar, J. )