Shri Abdul Mazid v. The State
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
CRM (DB)/14/2023 Shri Abdul Mazid Vs.
The State Mr. Ananda Halder ... for the Petitioner Ms. A. S. Zinu ... for the State September 29, 2023 (Manoj) Item No.1 The petitioner, being one of the accused persons in CCS Police Station Case No. 46/2023 dated 16.7.2023, has preferred the present application for bail under Section 439 of the Code of Criminal Procedure.
The petitioner has been booked in the said police case under Sections 20(b)(ii)(B)/27(A)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Mr. Ananda Halder appearing for the petitioner has submitted that the contemplation against the petitioner is based on the statement of co-accused person, which is not a strong and sufficient piece of material to presuppose any guilt, of the present petitioner under the aforesaid provisions of the law.
He has further pointed out to the fact that the charge-sheet has already been submitted in this case and does not fail to specify that the same has been submitted without being accompanied by any chemical examination report. Furthermore, the long detention period of the petitioner has been mentioned, to substantiate the submission that his further detention pending the trail of the case is only unwarranted.
Ms. Zinu is representing the State in this case and has submitted the Case Diary in Court. Ms. Zinu has substantially relied on the facts emerged during the investigation about phone calls being made between the present petitioner and the principal accused person, from whose custody the contraband has been recovered. Ms. Zinu has also pointed out on the basis of materials available on CD that during investigation a money trail has also been found out, showing transaction of money from the present petitioner to the bank account of the other accused person, in whose possession the contraband was found.
According to Ms. Zinu, investigation has revealed the role of the present petitioner to be the king pin of the entire operation of procuring, transmitting and sell of the contraband, more particularly, as a "finance provider" to facilitate the entire functioning, as above. Ms. Zinu has placed sufficient reliance on the provision of Section 37 of the said Act to submit that as the materials against the present petitioner attracts an offence under Section 27(A), the restriction, under Section 37 of the said Act, would be applicable against him.
During argument the following judgments have been relied on by the respective parties:
Judgment relied on by the petitioner (i) Manoj Kumar Soni vs. The State of Madhya Pradesh reported in Criminal Appeal No. 1030 of 2023. Judgment relied on by the State (i) Union of India vs. Ajay Kumar Singh @ Pappu in (Special (CRL) No. 2351 of 2023)
So far as the judgment of Manoj Kumar Soni is concerned, according to Mr. Ananda Halder, learned advocate for the petitioner, the Hon'ble Supreme Court has deprecated reliance by the High Court of the statement of the co-accused in coming to a decision regarding proof of any fact against the accused person. However, this judgment is distinguished by Ms. Zinu on the facts that in the same the Court was dealing with the final verdict of the trial Court, in the impugned judgment therein.
So far as the judgment of Ajay Kumar Singh @ Pappu is concerned, according to Ms. Zinu the same would support her argument regarding applicability of restriction under Section 37 of the said Act in the present case.
This Court find its proper to have a cursory look as to the facts of the present case which are as follows;
According to the F.I.R., the police intercepted a person namely, D. Prem Kumar on 16th July, 2023, who was travelling to Port Blair from Kolkata and was carrying the contraband article namely, ganja concealed in his luggage. Two packets wrapped in carbon paper were recovered from the luggage carried by him. The contraband article, namely ganja, was found in those two packets after the preliminary test of the material. The material was weighted 3.546 Kgs. of ganja. The material was seized and the concerned person was arrested. The apprehended person namely, D. Prem Kumar revealed name of one lady Dhana Laxmi to have provided him Rs. 32,000/- for carrying ganja from Kolkata to Port Blair. The petitioner has been implicated in the case according to the statement given by the said accused person, Dhana Laxmi. Dhana Laxmi was arrested on 16th July, 2023 and the present petitioner too was arrested on the same date i.e. 16th July,
2023. Since the said date the petitioner has been languished in the custody.
According to the prosecution the parameter as envisaged under Section 37 of the NDPS Act would be applicable in the case of the present petitioner.
Section 37 of the NDPS Act has provided as follows: "37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding 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 [offences under Section 19 or Section 24 or Section 27-A 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 on granting of bail specified in clause (b) of subsection (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".
Therefore, while considering prayer for bail of the accused person, the Court's satisfaction is necessary regarding existence of the reasonable grounds for believing that the accusation are not substantiated against the accused person before the Court and he is not guilty of the offence as alleged or not likely to commit such offence, if he be released on bail.
So far as the petitioner's implication is concerned, the basis of the same is the statement of the other co-accused person. It is profitable to note the judgment of the Hon'ble Supreme Court in the case of Toofan Singh vs State of Tamil Nadu reported in (2021) 4 SCC 1,
wherein the Hon'ble Apex Court has held a statement of the coaccused person under Section 67 of the NDPS Act to be inadmissible. It is an admitted fact in this case that the contraband has not been recovered from the possession of the present petitioner and also that the investigation has not revealed as to whether the money transacted by him with the other co-accused person Dhana Laxmi is for the purpose of pursuing the illegal transaction of the contraband or not.
The prosecution has placed strong reliance as to the various 'call record details' between the petitioner and the other accused person Dhana Laxmi and is eager to rely on the same, to show close proximity and nexus, to have been established. According to the prosecution this must satisfy the test of reasonableness to repose belief as to the involvement of the petitioner in the present case. However, the Court, on this aspect, cannot overlook a judgment of three Judges Bench of the Hon'ble Supreme Court in the case of State (By NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and another reported in (2022) 12 SCC 633. There the Court has categorically held, while dealing in an appeal against the order of rejection of bail of the petitioner there, that the questions raised as to availability of nexus between the two accused persons by dint of the phone call record is the question of fact to be dealt with in the trial only. The Hon'ble Supreme Court has specifically held that the same would not bear any relevance at the time of considering the applicant's bail prayer.
By leaving no stone unturned for her client, Ms. Zinu has stated by referring judgment of Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan reported in (2021) 10 SCC 100 that there are substantial probable causes to reasonably believe the
contemplation against the applicant, which must go to the favour of the State at the stage of consideration of the bail prayer of the applicant. However, the grounds as stated on behalf of the State on which this Court is to constitute the reasonable belief regarding applicant's contemplation and involvement in this case, would not be sufficient, in view of ratio of NCB Bangaluru judgment, as referred to hereinabove.
This Court is also not obliviate of the fact that the amount of contraband recovered from the possession one of the co-accused person in this case, is slightly less than the commercial quantity, which can be termed as an intermediate quantity. Therefore following the ratio of the decision of the Hon'ble Supreme Court as mentioned above, this court is of the opinion that in view of the facts and circumstances of this case, as discussed above, there would be no cogent ground for refusal of the petitioner's prayer for bail.
The petitioner shall be released on bail upon furnishing bail bond of Rs.30,000/- with two registered sureties of the equal amount, one of whom shall be local, to the satisfaction of the learned Special Judge under the NDPS Act at Port Blair, subject to the condition that the petitioner shall comply with the provisions contained under the section 439 (2) of the Cr.P.C and shall appear before the trial Court, on each date fixed, with further condition that the petitioner shall not leave the jurisdiction of the local police station where he is residing without the leave of the learned Special Judge. In default of appearance on a solitary date when the case is fixed without any leave granted by the learned Special Judge, it is open to the Special Court to cancel the bail without reference to this Court.
Hence, CRM(DB)/14/2023 is allowed.
Let the CD be returned to the learned advocate appearing for the State.
Urgent certified photocopy of this order, if applied for, be supplied to the parties expeditiously in compliance of usual legal formalities.
( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )