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TMI Blog2022 (7) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... matter in issue in this appeal has its genesis in FIR No. 65 of 2021 dated 19.02.2021, registered at New Alipore Police Station, Kolkata, initially in respect of offences under Sections 21(b)/29 NDPS Act; after recovery of 76 grams of cocaine from a motorcar bearing registration No. WB06P/0233 with three occupants, namely, Somnath Chattopadhyay (security guard), Prabir Kumar De and Pamela Goswami. However, on 23.02.2021, the respondent Rakesh Singh @ Rakesh Kumar Singh was arrested in this matter with the accusations essentially pertaining to the offence under Section 27A of the NDPS Act, i.e., financing illicit trafficking in contrabands and harbouring offenders; and with the allegations that he got the contraband procured and then got it planted in the vehicle occupied by the aforesaid three persons. 5. It is the accusations concerning the respondent which forms the core of the subject-matter of this appeal. Thus, we may take note of the salient features of the prosecution case against the respondent as follows: 5.1. As per the prosecution, the respondent had hatched a criminal conspiracy with the other charged co-accused persons for falsely implicating the said Prabir Kumar D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereupon, the said FIR No. 65 of 2021 for offences under Sections 21(b) and 29 NDPS Act was registered. Some of the contents of this written complaint leading to the FIR in question shall have their own bearing on the contentions urged in this matter. The same shall be adverted to at the appropriate juncture hereafter later. 5.5. According to the prosecution, on 20.02.2021, the said Amrit Raj Singh was seen leaving the house of the respondent. Further on 22.02.2021, considering the nature and gravity of crime, the investigation of the matter was taken over by the Detective Department, Lalbazar, Kolkata and the Joint Commissioner of Police, Crime, Kolkata formed the Special Investigation Team 'SIT', for short under Memo No. CI/47/9/21. 5.6. It has further been pointed out that a notice under Section 160 of the Code of Criminal Procedure, 1973 'CrPC', for short read with Section 67 NDPS Act was issued to the respondent by the investigating agency requesting his appearance before the Investigating Officer at Narcotic Cell, 6th Floor, KIT Building, Kolkata on 23.02.2021 at 4:00 p.m. This notice was challenged by the respondent by filing WPA No. 5448 of 2021 but the High Court, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, manhandled the OC, Narcotic Cell by abusing and threatening him which resulted in Hare Street PS Case No. 69 dated 10.03.2021 for offences under Sections 353/506 of the Indian Penal Code, 1860 'IPC', for short and a chargesheet has been filed in relation thereto. 6. Before proceeding further, it could be usefully noticed that the charge-sheet in the present case was submitted on 03.05.2021, arraying the respondent and several other persons as accused while also stating that the allegations against the aforesaid three occupants of motorcar were not established in investigation. As per the facts projected before us, prayer of the prosecution for discharge of the said three occupants of motorcar is pending consideration before the Trial Court. 7. Having been arrested in connection with this case, the respondent moved an application seeking bail before the Trial Court. The application so moved by the respondent was considered and rejected by the learned Judge, Special Court under NDPS Act cum 4th ASJ, Alipore, South 24 Parganas on 12.03.2021. Thereafter, the respondent approached the High Court in the said CRM No .3152 of 2021 that has been considered and allowed by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a police officer in the Court premises but, the sentence was subsequently suspended by the Appellate Court; and that respondent had been framed in this politically motivated case after he had renounced the membership of one political party and joined a rival political party. 8.2. On the other hand, it was contended on behalf of the State by the learned Advocate General that the provisions of the NDPS Act should be strictly enforced to curb the menace of drug trafficking, which has a highly damaging effect on the society at large; that the accused-respondent was the kingpin of a drug racket who would neither come in the fore-front nor indulge in any overt act but, would be pulling the strings from behind the curtain; that there was sufficient material to support the charge under Section 27A NDPS Act and hence, the restrictions of Section 37 NDPS Act were attracted; that the complicity and involvement of the accusedrespondent as the head of a drug peddling racket was duly established by the statements of various other witnesses other than the said three caroccupants, which include the statements of Md. Nasir Khan and Nishat Alam @ Ruman Khan recorded under Section 164 CrPC; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. Nothing was recovered from the person of the petitioner or any place over which the petitioner had exclusive control. We are conscious that mere non-recovery of contraband from a person's possession may not per se dilute the rigours of Section 37 of the NDPS Act. 6. However, even assuming that the petitioner had dominion or control over the contraband in question, admittedly intermediate quantity (76 gms) of cocaine was seized. It was urged on behalf of the State that the statements of witnesses would indicate that the petitioner was a regular purchaser of contraband items. However, the fact remains that in the present case only 76 gms of cocaine is involved. As observed by the Hon'ble Apex Court in the case of Sami Ullaha (Supra), where intermediate quantity of narcotics is involved, it may not be justified to apply the rigours of the provisions of Section 37 of the NDPS Act relating to grant of bail. 7. Thirdly, the seizure of the Cocaine was from Prabir, Somnath and Pamela as would appear from the seizure list. The First Information Report dated February 19, 2021 also names those three persons as the accused. They have however not been named in the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vement, merely from the fact that he was headed towards Patna may not necessarily indicate that he was trying to flee. 12. As regards the petitioner's reluctance to furnish voice sample, we do not think that such refusal would be a ground for denying bail to the petitioner when on an overall assessment of the material on record and on consideration of the applicable law, we are of the prima facie view that the petitioner may have a reasonably arguable case for acquittal at the trial. Refusal of the petitioner to furnish voice sample, may or may not have an adverse effect on his case at the trial, but we are not concerned with the same at this stage. 13. We are conscious about the salutary object of the NDPS Act and we have given due regard to the decision of the Hon'ble Apex Court in the case of State of Kerala v. Rajesh, (Supra). There cannot be any doubt that persons indulging in illegal trafficking in contraband drugs and psychotropic substances must be dealt with, with iron hands. The activities of such persons have a widespread deleterious effect on the society at large. Countless members of the society, often of tender age, fall prey to the heinous and nefarious activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of the case and the principles of law applicable thereto. 9.1. The learned senior counsel has referred to the facts and the background aspects above-noticed and has contended that, for all the evidence collected in investigation and presented in the charge-sheet, clearly a case of conspiracy of financing illicit trafficking of contraband and harbouring offender, punishable in terms of Section 27A NDPS Act is made out against the respondent. It has been contended that the respondent, in furtherance of conspiracy, financed the activity of procuring cocaine to the tune of Rs. 8.5 lakhs through the co-accused Amrita Singh @ Sweety; then, engaged another co-accused Amrit Raj Singh who lured the said Pamela Goswami and Prabir Kumar De to meet a political leader and on 19.02.2021, planted the contraband in their vehicle, and after planting the contraband, informed the respondent about execution of the work and fled from the spot to take shelter at the respondent's residence. According to the learned counsel, it is clearly made out that the respondent financed the activity of procuring cocaine worth Rs. 8.5 lakhs through the co-accused Amrita Singh @ Sweety and then, harboured the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision in the case of Prasanta Kumar Sarkar v. Ashish Chaterjee & Anr.: (2010) 14 SCC 496, the learned senior counsel has contended that the respondent enjoys considerable political clout in the State of West Bengal and there remains a reasonable apprehension that he may use his power and position to influence the witnesses and to tamper with the evidence; and these aspects need to be taken into consideration while considering the bail plea of such an accused. 9.6. The learned senior counsel has further highlighted the fact that the respondent has been involved in as many as 53 criminal cases at different police stations in the State of West Bengal and has the history of threatening public servants. It has particularly been pointed out that in the year 2015, the respondent attempted to threaten the Investigating Officer and to snatch away the Government documents which resulted in Hare Street PS Case No. 108 dated 19.02.2015, where he was ultimately convicted. It has further been pointed out, with reference to the order in the case of State of West Bengal v. Rakesh Kumar Singh: (2015) SCC OnLine Cal 1338, that even in custody, he had threatened the police officers. It has ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to stop the vehicle at a particular place; asked other occupants to get down and he remained inside the vehicle for some time on the pretext of changing his shirt and putting on a cover coat; and within a few minutes of his getting down, 10/25 police personnel encircled the vehicle and then, found the plastic packets at different places inside the vehicle whereas Amrit Raj Singh managed to escape. 10.2. It has also been submitted on behalf of the appellant that the said three persons have yet not been discharged and in the event of being discharged, they would be cited as witnesses by the prosecution. 10.3. As regards the criminal antecedents of the respondent, a list of criminal cases against him has also been placed before us while pointing out that 51 cases are pending against him and in two cases, he has been convicted wherein the allegations were of criminal intimidation and wrongful restraint of police personnel. 10.4. It has, therefore, been submitted that looking to the nature of accusations and the conduct of the respondent, he is not entitled to be released on bail; and the impugned order deserves to be set aside. 11. The submissions so made on behalf of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the fact that as per the complaint, the said occupants had pointed out the place in the motorcar where cocaine was concealed and this fact itself gives rise to considerable doubt in relation to the prosecution case about anyone concealing cocaine in the motorcar without knowledge of the said occupants. In the given circumstances, according to the learned counsel, observations of the High Court that the prosecution case has changed completely from what it was at the time of filing of FIR cannot be said to be unjustified. It is submitted that there is not even prima facie evidence to allege that the respondent got planted contraband in the motorcar of the said three occupants, who remain the main accused persons in this case. 11.4. Apart from questioning the correctness of the statements said to have been made by the said witnesses Md. Nasir Khan and Nishat Alam @ Ruman Khan, the learned counsel has pointed out that both of them are convicts in a rape case and they came out of jail only 2-3 months before the incident related with the present matter. This apart, according to the learned counsel, even taking their statements on face value, the charge under Section 27A will not get a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the contrary, one statement of Pamela Goswami, recorded on 19.02.2021, has been annexed on behalf of the respondent wherein, she allegedly confessed to be a dealer in drugs and it is submitted that the same is a part of the charge-sheet. It has also been alleged that 10 months prior to the seizure in question, the father of Pamela Goswami had made a written complaint to the Commissioner of Police, Kolkata alleging that Prabir Kumar De had made Pamela Goswami a drug addict. Moreover, the observations made by the High Court in the order dated 06.01.2022, while granting bail to the co-accused Amrita Singh@ Sweety have also been referred. 11.8. It has been reasserted that the allegations levelled against the respondent of financing illicit trafficking is not made out nor any case of harbouring offenders is made out. The decision in the case of Rhea Chakraborty (supra) has been relied upon. 12. We have given anxious consideration to the rival submissions and have scanned through the material placed before us. 13. At the first blush, a few factors appear operating against the respondent and it appears questionable if the respondent was entitled to be granted bail in this matter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements of the witnesses have not as such gone into consideration of the High Court but, a close look at the impugned order makes it clear that in paragraph 7 thereof, the High Court has noticed as to what was contained in the initial FIR and what was suggested in the charge-sheet; and has found, prima facie, that the story in the charge-sheet, about the respondent having got contraband item planted in the motorcar in which the said three persons were travelling to put them in trouble because of personal enmity, was of considerable doubt. The High Court has, and in our view rightly so, not elaborated on all the features of evidence so as to leave the relevant aspects open for trial. However, in view of the contentions advanced before us, it may be observed that at the present stage, the contention on the part of the respondent cannot be ignored that if such statements of the said two witnesses were recorded on 27.02.2021 and 28.02.2021, there was no material with the investigating agency to summon him on 22.02.2021. This is apart from the fact that the statements of the said two witnesses, prima facie give rise to some reasonable questions, as to why were they kept as companions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing as to what exactly transpired in detaining the vehicle and as to how the contraband was recovered, could be usefully noticed as under: - "....At about 11:30 hrs we reached at Nalini Ranjan Avenue, under New Alipore P.S. area. Source led us to the spot and maintained watch. At about 13:00 hrs source pointed out towards one maroon colored Honda BR-V car was coming along from West to East direction. The said vehicle was detained with the help of other raiding team members on the road in front of a house named as Parameshwari Sadan at 92/93 Nalini Ranjan Avenue, block-B (formerly 24N, Block-B), PS-New Alipore, Kol-53 and found two male and one female persons sited inside of the maroon colored car bearing no. WB06P0233. One male person sited at driver sit and another male person waws sited next to the driver seat (front) and one female person sited at rear seat of the said vehicle/car. We disclosed our identity for the purpose of detention... *** *** *** .....After that the undesigned started to search the male detainees and the said vehicle/car one by one on the spot in presence of all maintaining all legal formalities and at that time the lady constable Pema Lamu Sherpa st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. When the assertions of the SI lodging the written complaint after search of the vehicle and seizure of contraband on 19.02.2021 are pitted against the alleged statements of the three occupants of the vehicle, the question does arise as to which of the two contradictory versions is to be accepted at this stage? In our view, at the present stage and on prima facie consideration of the matter, the only logical approach could be to proceed on the basis of the version of the SI as given in the written complaint because, it is not the case of the appellant that the version in the written complaint is not correct. In this view of the matter, the very edifice of the prosecution case against the respondent crumbles down and falls flat. Putting it differently, the story of planting of contraband in the vehicle in question by some third person like Amrit Raj Singh could only be disbelieved, for being squarely contrary to the initial case of the prosecution, as stated in the written complaint. 16.3. Once the veracity of prosecution case against the respondent is in serious doubt, further analysis on the other factors about financing the drug trafficking and harbouring of offender need not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of them; there had been several allegations against him of threatening the Investigating Officers and public servants from time to time; even in the present case too, he had allegedly threatened and misbehaved with the police officers and has been charge-sheeted for offences under Sections 353 and 506 IPC; and on 23.02.2021, he did not appear before the Investigating Officer even after dismissal of his writ petition by the High Court and was arrested at a faraway place. These facts and factors, prima facie, give rise to the question as to whether the respondent was entitled to be granted the indulgence of bail. The High Court has taken the view that, prima facie, the respondent might not have committed the offence he has been charged with in this case; and, looking to his past history, there was nothing on record to suggest that he was likely to commit an offence under the NDPS Act while on bail. The High Court has, in the totality of circumstances, taken the view that the respondent was entitled for bail on stringent conditions and has imposed additional conditions as noticed hereinbefore. 18.1. Although, the past history of the respondent and even his conduct in relation to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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