TMI Blog2020 (9) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above noted case as encrypted in the bail application. The Duty Officer, NCC Police Station received an information from credible source that huge quantity of contraband drugs(heroin) was stored illegally in the house of one Tutan Dey, a resident within the jurisdiction of NCC police station. It was further disclosed by the source that the said Tutan Dey and his other partners were also present at that time, and if raid was not conducted instantly, in that case, they would dispose of or conceal the said contraband substances. The said Duty Officer after receipt of the information had shared the same with the Addl. S.P.(Urban), West, SDPO, NCC P.S. as well as SP, West. Necessary G.D. entry was made vide NCC P.S. G.D. No.37 dated 24.01.2019. [4] Thereafter, the police personnel including SDPO, NCC P.S. raided the house of Tutan Dey, where they also found Jitendra Bhowmik, the petitioner herein and Dipankar Das. During search operation, police personnel recovered contraband articles, weighing approximately 18.06 gms of heroin with 30 number of vials containing 0.04 gms, 7 numbers of mobile sets and cash amount of ₹ 33,140/- and the same were seized. Tutan Dey including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He went to the house of Tutan Dey to give tuition to the children of Tutan Dey when police raided and arrested him; (iv) Mandatory provisions as contained under Sections 42 and 52 of the NDPS Act for search and seizure were violated; (v) Section 41 of NDPS Act has no applicability in the instant case. The petitioner has enclosed the copy of the FIR along with complain, copy of the charge-sheet, deposition sheets of Sri Dipankar Chowdhury as PW-1, S.I. Shyamal Kanti Majumder as PW-2 and Ezekiel Tripura as PW-3 and Smti. Anju Urang as PW-4 for perusal of the same by this Court under Annexure-F of the petition; (vi) There is no chance to complete the trial in the near future, the accused-person may be released on bail; (vii) Finally, the instant bail application has been filed in the changed circumstances. [10] Mr. Lodh, learned counsel has pressed into service the following citations: (i) Union of India Vs. Mohanlal Anr., reported in (2016) 3 SCC 379 : 2016 STPL 232 SC [Criminal Appeal No.652 of 2012] (ii) Crl.A(J) No.21/2018 titled as Shri Tapash Saha Vs. The State of Tripura. (iii) Shri Goutam Dutta vs. The State of Tripura reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, according to him, an empowered gazetted officer has also all the powers of Section 42 including power of seizure. [14] Section 42 provides the procedure and power of entry, search, seizure and arrest without warrant or authorization. Learned State-counsel contended that under sub- section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a gazetted officer. But, on an officer empowered under sub- section(1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub- section(2) of Section 42. It is clear from the language of sub- section(2) of Section 42 that it applies to officer contemplated by sub-section(1) thereof and not to a gazetted officer contemplated by sub-section(2) of Section 41, when such gazetted officer himself makes an arrest or conducts search and seizure. He has further submitted that the Apex Court held that the High Court was right in concluding that Section 42(2) is not applicable when search, seizure is conducted by a gazetted officer under Section 41(2) and (3) and being observed thus, the conviction of the accused-appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para- military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns on 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. [20] The controversy in regard to the point No.1 as raised above is already settled by a catena of decisions of this Court, as also of the Apex Court. The learned Single Judge in the case of Haricharan Biswas and another v. The State of Tripura, reported in (2018) 2 TLR 733 had observed thus[TLR, P-752 Para-25]: NECESSARY COMPLIANCE OF SECTION 37 OF THE NDPS ACT : 25. This Court in Case No.BA No.147/2018 titled as Rinku Das on behalf of Gobinda Das v. State of Tripura has already reiterated the settled principles of law and the need to comply with the same in the following terms: 3. The principle for grant of bail under the Act stands fully settled. Starting from Narcotics Control Bureau Vs. Kishan Lal and Ors., (1991) 1 SCC 705; Union of India vs. Ram Samujh and another, (1999) 9 SCC 429; Collector of Customs, New Delhi vs. Ahmadalieva Nodira reported in (2004) 3 SCC 549; Sami Ullaha vs. Narcotic Central Bureau, (2008) 16 SCC 471; Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation 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. [emphasis supplied] [22] 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. [23] I find force in the submission of learned P.P. appearing for the respondent-State for the reason that any finding in this regard of this Court will definitely hamper the trial and this will definitely result into the matter being prejudged at the stage of consideration for bail despite the fact that four witnesses in the case in hand have already been examined and cross-examined, and in my conscious view, it is the learned tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature 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. [Ref.- Henrietta Muir Edwards v. A.G. of Kanada, AIR 1930 PC 120, p.126; WazirChand Mahajan v. Union of India, AIR 1967 SC 990, p.992 : 1967(1) SCR 303; Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg, (1975) 1 All ER 810, p.814(HL)(Lord REID)]. In my further considered view, it is not the duty of judges t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge after due consideration of the submissions of the learned counsel appearing for the parties and the materials on record, had framed the charges against the present accused- person under Section 22(b) and Section 25 of the NDPS Act by way of passing a specific order. The State did not think it necessary to challenge the charge as framed against the accused-person by the learned trial Judge and accepting the same had allowed the learned Judge to proceed with the trial and four witnesses were examined at the instance of the prosecution. There was no prayer on behalf of the State to add Section 27-A of the NDPS Act, against the accused-person. As such, the submission of the learned P.P. appearing for the State-respondent that this Court may alter and add Section 27- A, deserves no merit for consideration. This Court accepts the submission of the learned counsel appearing for the accused- person that the present bail application filed on behalf of the accused-person may be decided considering the limitations contained in Chapter-XXXIII of CrPC which deals with the provisions as to bail and bonds. (underlined for emphasis) [30] The accused has been in custody for one year and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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