Liberty of a person cannot be curtailed on baseless and unfounded allegations but is restricted by larger social interest: Tripura High Court

HIGH COURT OF TRIPURA AB 421 Shri. Tapash Sarkar @ Rakesh Applicant(s) The State of Tripura Respondent(s) B E F O R E HON’BLE MR. JUSTICE S.G. CHATTOPADHYAY For ApplicantMr.K.Nath Adv. Mr. P.Roy Barman Sr. Adv. For Respondent(s) : Mr. Ratan Datta PP. O R D E R Apprehending arrest in Belonia P.S. case No. 2021 BLN 011 which has been registered under Sections 22(b) 25 27(a) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 the FIR named accused Tapash Sarkar @ Rakesh has approached this court by filing an application under Section 438 of the Code of Criminal Procedure 1973(Cr.P.C hereunder) for granting pre arrest bail to him. On the factual score 11.52 grams of heroin contained in 455 plastic containers was recovered and seized by police from the dwelling house of the accused on 14.02.2021 and his father Dipak Sarkar and younger brother Ranjit Sarkar were arrested at the spot. The case of the prosecution as projected in the FIR is that pursuant to a secret information police conducted raid in the house of the accused in the afternoon at about 4.25 p.m of the said date and recovered the said contraband from the backyard of the house of the accused in presence of his father and younger brother and after recovery and seizure of the said contraband from there both of them were arrested by police. The present accused who is also an inmate of the house managed to escape police arrest by absconding from his house. It was also stated in the FIR that police complied with the statutory provisions laid down under Sections 42 and 50 of the NDPS Act before the said search and seizure were carried out in the dwelling house of the accused and the arrest of his father and younger brother was made. Bikash Debbarma Sub Inspector of Police of Belonia police station who was a member of the police team which conducted the alleged search and seizure lodged a suo moto FIR with the Officer in charge of Belonia police station on 14.02.2021. Based on his FIR the case was registered against the petitioner and also against his father and younger brother. As noted his father Dipak Sarkar and his younger brother Ranjit Sarkar were arrested at the advocate. spot. In this backdrop of circumstances Tapas Sarkar@Rakesh seeks pre arrest bail under Section 438 Cr.P.C. Heard Mr.P.Roy Barman learned Sr. Advocate appearing for the petitioners along with Mr.K.Nath learned Also Heard Mr.Ratan Datta learned PP who is representing the state respondent. Counsel appearing for the accused contends that Section 25 of the NDPS Act under which the case has been registered against the accused has no application because accused does not own the house from where the contraband was allegedly seized by police. Similarly Section 27(a) is not also applicable because there is no allegation of consumption of any narcotic drug or psychotropic substances against the accused. It is also contended by the counsel that no material has been placed before the court even to guess that the seized contraband was recovered from his possession and as a result Section 22(b) cannot also be used against him. Moreover there is no allegation against the accused that he abated the commission of the offence or conspired with his father and brother to commit the offence. Therefore he cannot also be booked under Section 29 of the NDPS Act. Counsel appearing for the petitioner therefore argues that the allegations made out in the FIR do not constitute any of the offences aforesaid under which the case has been registered against the accused. As a result accused is entitled to pre arrest bail. Mr.Roy Barman learned Sr. Advocate submits that the contraband was allegedly seized from the backyard of the house owned by his father which is also inhabited by others. Since there is no material to suggest that he ever possessed the said contraband the charge of illegal possession of contraband against him is unfounded. It is also contended by the counsel of the petitioner that he is a patient of chronic renal failure which has been certified by a nephrologist vide certificates dated 20.04.2021 and 02.07.2021 issued by Dr.Anupam Majumder a consultant nephrologist and renal transport physician. Counsel submits that the accused is on restricted diet and his imprisonment will have a serious impact on his health. Learned counsel therefore urges that court to protect the accused from arrest and detention by granting pre arrest bail to him. Mr.Ratan Datta learned Public Prosecutor has emphatically submitted that in view of the nature the charges and the materials available against him in no circumstances the accused would be entitled to bail at this case. It is submitted by the learned PP that for the restrictions provided under Section 37 of the NDPS Act accused cannot be released on bail unless this court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and he is not likely to commit any offence while on bail. In support of his contention Mr.Datta learned PP besides referring to the statute relies on the decision of the Apex Court in Superintendent of Narcotic Control Bureau Chennai vs. R.Paulsamy reported inwhich have been produced by the prosecution. Considered the submissions of the counsel representing the parties. It is not denied that the house from where the seized contraband was recovered and seized is the dwelling house of the accused where he dwells along with his accused father Dipak Sarkar and brother Ranjit Sarkar. The investigating agency has stated that the present accused managed to escape from the spot before the search and seizure was carried out there by police. In view of the incriminating statements of witnesses and seizure of the contraband form his dwelling house the present accused has been implicated by police and investigation of the case is in progress against him. Whether in these circumstances he should be released on pre arrest bail is the matter to be considered by this court. The Supreme Court laid down parameters to be followed while considering application for bail moved by an accused involved in offence under the NDPS Act. In the case of Union of India vs. Ram Samujh and Anr. reported in9 SCC 429 the Apex Court succinctly held that accused of offence under the NDPS Act should not be released on bail unless the mandatory conditions as provided under Section 37 of the NDPS Act are satisfied. Observation of the Apex Court in paragraphs 7 and 8 of the said judgment are as under: “7.It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case accused commits murder of one or two persons while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable: it causes deleterious effects and deadly impact on the society they are a hazard to the society even if they are released temporarily in all probability they would continue their nefarious activities of trafficking and or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court dealing with punishment under NDPS Act has observed about the adverse effect of such activities in Durand Didien v. Chief Secry . Union Territory of Goa. as underthere are reasonable grounds for believing that accused is not guilty of such offence and ii) that he is not likely to commit any offence while on bail the release of are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs the Court should implement the law in the spirit with which the Parliament after due deliberation has amended” In State of Madhya Pradesh vs. Kajadif any also stands vacated. Return the CD. Saikat Sarma PA 

Summary: Materials available against the accused do not justify the deprivation of his liberty by his detention in prison but individual liberty is always restricted by a larger social interest. A single-judge bench comprising of Justice S.G. Chattopadhyay adjudicating the matter of Tapash Sarkar v. The State of Tripura(AB 42 of 2021) dealt with an issue of whether to grant pre-arrest bail to the accused or not. In the present case, the accused is apprehending arrest u/s s 22(b),25,27(a) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act,1985 and seeking pre-arrest before the court. The police recovered around 11.52 gms of heroin in 455 plastic containers from the dwelling house of the accused and his father Dipak Sarkar and younger brother Ranjit Sarkar were arrested on the spot. In pursuance of secret information, the police raided the house of the accused in the afternoon at about 4:@5 pm and recovered the contraband from the backyard. The accused who was also living in the same house somehow managed to abscond the arrest. The petitioners contended that Section 25 of the NDPS Act under which the case has been registered against the accused has no application because the accused does not own the house from where the contraband was allegedly seized by police. Similarly, Section 27(a) is not also applicable because there is no allegation of consumption of any narcotic drug or psychotropic substances against the accused. It is also contended by the counsel that no material has been placed before the court even to guess that the seized contraband was recovered from his possession and as a result, Section 22(b) cannot also be used against him. Moreover, there is no allegation against the accused that he abated the commission of the offence or conspired with his father and brother to commit the offence. Therefore, he cannot also be booked under Section 29 of the NDPS Act. It was also argued that the allegations made out in the FIR do not constitute any of the offences, aforesaid, under which the case has been registered against the accused. As a result, the accused is entitled to pre-arrest bail. Also, there was no material to suggest that he ever possessed the said contraband, the charge of illegal possession of contraband against him is unfounded. Further, it was submitted that the Petitioner is a patient of chronic renal failure and has a restricted diet and his imprisonment will be detrimental to his health The Respondent submitted that in no circumstances the accused is entitled to bail. It was submitted that the restrictions provided under Section 37 of the NDPS Act, accused cannot be released on bail unless this court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and he is not likely to commit any offence while on bail. Reliance was made on an SC judgement and was stated that recording of findings in terms of Section 37 of the NDPS Act is a sine qua non for granting bail to an accused involved in an offence under the NDPS Act. Further submissions on behalf of the state respondent is that Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused which states that in trial under the NDPS Act, it may be presumed, unless and until the contrary is proved that an accused has committed an offence under it in respect of the articles recovered from his possession which he fails to account satisfactorily. It was also stated by the materials collected against the accused during investigation of the case is more than sufficient to justify his arrest and detention. Also in regards to the chronic renal failure of one of the accused , it was stated that the certificate issued by the doctor is not enough to reach a conclusion about the illness of the accused without any prescription accompanied by his diagnostic reports. And hence bail application should be rejected.