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Calcutta High CourtCRM(SB)/2/2023disposed

Shri Suresh Kumar v. The State

2023-04-28Hon'Ble Justice Krishna Rao4 pages

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ...

CRM(SB)/2/2023 Shri Suresh Kumar

Versus

The State Mr. Rakesh Pal Gobind ... for the petitioner Ms. A.S.Zinu ... for the State April 28, 2023 [AKB] Item No. 3 This is an application for grant of bail under Section 439 of the Code of Criminal Procedure, 1973 in connection with the FIR No. 28 of 2023 dated 12.04.2023 under Section 20 (b) (ii) A of the NDPS Act of PS Diglipur pending before the learned Special Judge (NDPS Court) at Mayabunder being GR Case No.2 of 2023. The allegation against the petitioner is that the police has apprehended the accused and recovered 248 gram ganja from the possession of the accused. After the arrest the accused was produced before the learned Special Judge NDPS Court at Mayabunder. At the time of production of the accused the Investigating Officer has also filed the application for Police remand of the petitioner.

The learned Judge in spite of having the knowledge that the quantity which alleged to have been recovered from the possession of the accused is only 248 grams but instead of granting bail to the petitioner the learned Special Judge NDPS Court at Mayabunder had allowed the application filed by the Investigating Officer and remanded the petitioner to police remand for five days. Initially the matter was taken up for hearing on 25.04.2023 and after going through the application and the averments this Court before going into the merit of the case had directed the Investigating Officer to appear before this Court on 27.04.2023 along with the case diary to explain as to why if the small quantity of ganja was seized, the Investigating Officer has prayed for police remand of the accused. The compliance of the order passed by this Court on 25.04.

2023, the Investigating Officer had appeared before this Court on 27.04.

this Court has directed the Investigating Officer to file the same on affidavit. Today the Investigating Officer has filed an affidavit by enclosing the order passed by learned Special Judge NDPS Court dated 07.02.2023 in GR Case No. 230 of 2022 (State vs. Biswajit Sarkar) wherein the learned Additional Sessions Judge, North and Middle Andaman, Mayabunder had passed the following order: "In the instant case, upon the scrutiny of record, it is revealed that the said accused person is presently remaining outside custody purportedly on a 'police bail'.

This aspect came to the notice of this court today and this court is faced with the dilemma, as to whether to remain a mute spectator to the irregularity of a purported 'bail' having been granted by the police, which is a patent irregularity, or to effect any corrective action thereof, It needs to be elucidated that in respect of the offences, as alleged, coming under the provisions of NDPS Act, 1985, the police is not vested with the power to release any accused persons upon executing of any bond. Needless to mention that the phrase 'police bail' is indeed inherently a misnomer, and it does not have any application under the provisions of the Code of Criminal Procedure.

What is desired to be construed as 'police bail' is, in fact, the process of an accused being released from the PS upon his/her executing an appropriate bond, hereby undertaking to appear before the appropriate court on the date so directed. The empowerment vis-à-vis grant of bail vests with the courts only. Furthermore, the power to release an accused upon executing a bond, is also applicable only in respect of those alleged offences, which in the schedule appended to the Code of Criminal Procedure, is referred to as 'bailable'. This explanation is put on record for the sake of convenience of all concerned as well as to aid regularization of the record of the instant case.

In the instant case, when such irregularity came to the notice of this court, it became incumbent upon this court to correct the irregularity so committed, as opposed to being an unwilling perpetrator to the same, and keeping this mind, in the opinion of this court, the accused needs to be remanded to custody. Accordingly, the accused person, Biswajit Sarkar is hereby remanded to J/C.

Fix 09.02.2022 for production of accused.

Let a copy of the instant order be sent to the office of the Superintendent of Police, N & M Andaman, Mayabunder, with a direction to circulate the same to all the police stations under its administrative jurisdiction, with a further direction not to release any person, who becomes an accused under the provisions of NDPS Act, 1985, since in terms of section 37 of the said Act, the offences are cognizable and non-bailable".

In terms of the order passed by the learned Additional Sessions Judge, North and Middle Andaman, Mayabunder, the Superintending of Police, North and

Middle Andaman District, Mayabunder had issued a circular No.

SP(D)/N/N&MA/MB/2023/401 dated 10.02.2023 which reads as follows:

" Sub : Ensuring compliance of Section 37 of NDPS Act, 1985. It is in practice that the accused who were arrested in NDPS Act with less than 01 kilogram of Ganja (Cannabis) is being release on bail from Police Station. While hearing a NDPS case, Hon'ble Court of Additional District & Sessions Judge, Mayabunder has taken the matter seriously. The copy of order sheet is enclosed herewith for reference, wherein Hon'ble Court ordered that the accused shall not be released on bail who becomes an accused under the provision of NDPS Act, 1985, since in terms of section 37 of the said Act, the offences under NDPS Act are cognizable and non bailable. Section 37 of NDPS Act 1985, is reproduce below for reference.

Section 37 Offences to be cognizable and non-bailable -

(1) Not withstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) Every offence punishable under this Act shall be cognizable;

(b) No person accused of an offence punishable for 2 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless (i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations o granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. (3) (4) All SHOs of North and Middle Andaman district is hereby directed that the accused arrested in NDPS Act shall not be released on bail from Police Stations and produce before the Hon'ble Court irrespective of quantity seized. SDPOs to ensure the same".

In the affidavit the Investigating Officer only has taken the ground that he has not granted bail in terms in terms of the order/direction passed by the Additional Sessions Judge at Mayabunder. But he has not filed any affidavit which he has stated before this Court on 27.04.2023 wherein the Investigating Officer has submitted in open Court that he has acted on the advice of the learned Additional Sessions Judge, Mayabunder. From the record it reveal that inspite of the having knowledge that the quantity of ganja is only 248 grams which is bailable in nature but inspite of the same learned Special Judge NDPS Court had allowed the prayer of Investigating Officer and sent the accused on PC remand and on completion of the

PC remand, the learned Additional Sessions Judge had again sent the accused to judicial custody and till date the accused is in judicial custody. In view of the above I am of the opinion the matter is to be brought to the knowledge of the Hon'ble Acting Chief Justice of Calcutta High Court for information and taking appropriate action against the learned Special Judge NDPS Court Mayabunder, North and Middle Andaman. The Registrar is directed to place the record of CRM(SB)/2/2023 (Shri Suresh Kumar vs. The State) before the Hon'ble Acting Chief Justice of Calcutta High Court.

In view of the above this Court find that only the small quantity of ganja alleged to have been seized from the possession of the petitioner, thus the petitioner is entitled to get bail.

Let the accused may find bail of Rs. 2000/- with one surety with the satisfaction of the learned Chief Judicial Magistrate at Mayabunder.

CRM(SB)/2/2023 is disposed of.

The parties are directed to act on website copy of the order. Both the parties may be provided the plain copy of the order to act accordingly.

(Krishna Rao, J.)