2020 (9) TMI 349 - HC - Indian Laws

Bail Application - Smuggling - contraband drugs(heroin) - Whether a person accused of committing an offence under the penal provisions of the NDPS Act is entitled to the benefits of bail due to procedural defects or irregularities? - Whether the accused person can be released on bail if the offence which he/she allegedly commits as is found in the charge-sheet does not suffer the rigour of Section 37 of NDPS Act? HELD THAT - The procedural defects or irregularities in course of investigation shall not be considered as fatal entitling the benefit of bail to the person accused of committing offence under the penal provisions of NDPS Act. In the instant case, the learned counsels appearing for the parties have tried to persuade this Court that charge- sheet has been filed, charges have been framed and four witnesses have already been examined wherefrom it transpires that there is total non-compliance of the mandatory provisions of Section 42 of the NDPS Act. I am not unmindful to the submission of learned counsel appearing for the State- respondent that vital witnesses, like SDPO of NCC P.S., the Duty Officer HWC(UB) Bipin Debbarma of NCC P.S., I.O. and the reporting officer were yet to be examined. Whether a person who has not been charged for committing offence punishable under Section 19 or Section 24 or Section 27A and also for offence involving commercial quantity, should suffer a rigour of Section 37 of NDPS Act and be considered for bail after submission of charge-sheet and particularly, when charge has been framed against him? - HELD THAT - In the case in hand, the accused person has been charged under Sections 22(b)/25 of the NDPS Act - The charge framed by the learned Special Judge after considering the materials as revealed from the charge-sheet clearly manifests that the present accused-person has not committed any offence punishable for offence under Section 19 or Section 24 or Section 27A and also for offence involving commercial quantity. A plain reading of Section 37 of the NDPS Act and the language employed therein clearly manifest that the Legislature while introducing the provision of Section 37 of the NDPS Act had taken into notice the extent and gravity of the offences punishable under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity. It was not the fact that the makers of law were unaware of other penal provisions prescribed in the statute but had intended not to bring those penal provisions under the umbrella of Section 37 of the NDPS Act and restricted themselves within the provisions and circumstances as specifically mentioned therein. In my opinion, the language used in a statute and literal meaning thereof, is the determinative factor of legislative intention. The intention of the Legislature is found in the words used by the Legislature itself. The question is not what may be supposed to have been intended, but, what has been stated expressly. The accused has been in custody for one year and six months and also a private tutor. The earlier bail application was filed by the accused-person after framing of charge, and the bail application in hand has been filed after the trial is commenced when four witnesses have been examined. As such, there is change in circumstance. Further, at this stage, there is no chance of tempering the evidence - the accused-person, namely Shri Jitendra Bhowmik shall be released on bail by furnishing a bail bond of ₹ 2,00,000/-(Rupees two lakhs) with two sureties of the like amount to the satisfaction of the learned Special Judge, West Tripura, Agartala. Bail application allowed.

Issues Involved:
1. Applicability of Section 37 of the NDPS Act in granting bail.
2. Procedural defects or irregularities in investigation.
3. Non-seizure of contraband from the accused.
4. Change in circumstances due to the COVID-19 pandemic.

Detailed Analysis:

1. Applicability of Section 37 of the NDPS Act in Granting Bail:
The petitioner was charged under Sections 22(b) and 25 of the NDPS Act, which do not attract the rigour of Section 37. The court noted, "The charge framed by the learned Special Judge after considering the materials as revealed from the charge-sheet clearly manifests that the present accused-person has not committed any offence punishable for offence under Section 19 or Section 24 or Section 27A and also for offence involving commercial quantity." Therefore, the bail application should be decided within the provisions of Chapter XXXIII of CrPC, which deals with bail and bonds, and not under the stringent conditions of Section 37 of the NDPS Act.

2. Procedural Defects or Irregularities in Investigation:
The petitioner argued that mandatory provisions under Sections 42 and 52 of the NDPS Act were violated. The court held, "Procedural defects or irregularities in course of investigation shall not be considered as fatal entitling the benefit of bail to the person accused of committing offence under the penal provisions of NDPS Act." The legality and validity of compliance or non-compliance of procedural aspects should be decided by the trial judge, not at the stage of bail consideration.

3. Non-seizure of Contraband from the Accused:
The petitioner contended that nothing was seized from his possession, and he was present at the location to give tuition. The court noted, "Nothing was seized from the possession of the present accused person and/or no article of the present accused-person was seized by the police." The contraband articles were seized from the possession of Tutan Dey, and there was no evidence to establish the involvement of the present accused-person.

4. Change in Circumstances Due to the COVID-19 Pandemic:
The court acknowledged the impact of the pandemic on the trial process, stating, "Due to present pandemic situation on account of COVID-19 virus, I cannot foresee the resumption of trial shortly." The accused has been in custody for one year and six months, and there is no chance of tampering with the evidence at this stage. The court emphasized that the accused shall not evade the trial and will attend all dates fixed by the trial judge.

Conclusion:
The court concluded that the bail application should not face the rigour of Section 37 of the NDPS Act and can be considered within the provisions of Chapter XXXIII of the CrPC. The accused was granted bail on furnishing a bail bond of ?2,00,000 with two sureties of the like amount, subject to conditions including not leaving the jurisdiction without permission, not evading the trial, and appearing on all trial dates.

Conditions of Bail:
1. The accused shall not leave the jurisdiction of the court without prior permission.
2. The accused shall not evade the trial or influence the evidence.
3. The accused will appear before the trial court on all dates fixed for the trial.

The court allowed the bail application in the above terms and clarified that the observations made should not construe the case on merits for the trial's logical conclusion.

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