TMI Blog2022 (7) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent was involved in as many as 53 criminal cases and he has been convicted in at least two of them; and (e) the prosecution has alleged that even in relation to this particular case, the respondent had been separately charge-sheeted for the offence pertaining to Section 353 IPC and he has attempted to threaten the law enforcing agencies and personnel. According to the prosecution, the FIR in question for offences under Sections 21(b) and 29 NDPS Act came to be registered on the basis of a written complaint dated 19.02.2021, as submitted to the Officer In-Charge of New Alipore Police Station, Kolkata by Somnath Sarkar, SI after the aforesaid proceedings of search of the said motorcar as also seizure of contraband from the motorcar. This complaint dated 19.02.2021 is an admitted document of the appellant and is rather the foundation of the entire matter - the motorcar in question was in motion and was moving from west to east direction, which was detained by police with the help of other raiding team members; and second, that during search, the occupants of motorcar pointed towards two specific places inside the vehicle where the contraband drug/cocaine was placed in a conceale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Narcotic Drugs and Psychotropic Substances Act, 1985 Hereinafter also referred to as the NDPS Act , has been ordered to be enlarged on bail with certain additional conditions, apart from bail bonds and sureties. 3. Though, the validity of the order granting bail is in question in this appeal and final determination of all the contentious issues is not called for but, looking to the nature of rival submissions made before us as also the nature of accusations concerning the respondent, a somewhat lengthy reference to the relevant background aspects is rather inevitable. 4. The 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., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok shelter at the respondent s residence. 5.4. As regards recovery and seizure of contraband, it has been alleged that on 19.02.2021, based on credible source information, a team of officers was constituted at New Alipore Police Station; and this team detained the said vehicle bearing Registration No. WB-06 P/0233, seized 76 grams of cocaine from the vehicle, and arrested the said three persons, who were present in the vehicle. Based on this recovery and seizure, a written complaint dated 19.02.2021 was submitted to the Officer In-Charge of New Alipore Police Station, Kolkata by Somnath Sarkar, SI 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 Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther witness Nishat Alam @ Ruman Khan recorded under Section 161 CrPC on 28.02.2021 in corroboration of the statement of Md. Nasir Khan, concerning the financing and procurement of cocaine. Yet further, the statements of these two witnesses recorded on 30.03.2021 under Section 164 CrPC have also been referred to. It has also been alleged that on 27.02.2021, the respondent refused to follow the norms of Central Lockup, Lalbazar and on being requested by the security personnel to follow the norms, he threatened them with dire consequences; and that on 09.03.2021, the respondent, on being produced before the NDPS Court, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was concealed but, in the charge-sheet, it was alleged that the respondent got planted the contraband in the car as an act of revenge; that there was no material on record even to prima facie support the charge of financing illicit trafficking and harbouring offenders so as to bring the case within four-corners of Section 27A NDPS Act; that Section 42 NDPS Act had not been complied with; that even though several criminal cases were pending against the respondent, but none of them was under the provisions of the NDPS Act and in only one case was he convicted and sentenced to one year imprisonment for entering into scuffle with 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-responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the concerned police station once in a week; (c) he would not travel outside the State of West Bengal without prior leave of the Trial Court; and (d) he would surrender his passport before the Trial Court immediately. Having regard to the submissions made in this case, we may take note of the relevant part of the discussion and reasoning of the High Court as under: - 4.We have considered the rival contentions of the parties. We have also perused the material in the memo of evidence filed on behalf of the State. 5. Certain things are clear. Firstly, there was no recovery of contraband items from the physical possession of 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 petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 criminal cases pending against the petitioner is under the provisions of the NDPS Act. Though the petitioner has criminal antecedents, there is no history of the petitioner dealing in narcotics in contravention of the provisions of the NDPS Act. 10. Prima facie there is nothing to show that the petitioner has previously violated any of the provisions of the NDPS Act. 11. As regards the State s argument that the petitioner was trying to abscond on the night when he was arrested, prima facie, the petitioner may be given the benefit of doubt that he was not going to Patna for the purpose of absconding. Since there was no restriction on his movement, 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Trial Court immediately. The petitioner shall fully cooperate with the Investigating Authority in case of further investigation, if any. 16. In the event, the petitioner fails to adhere to any of the conditions stipulated above without justifiable cause, the trial court shall be at liberty to cancel the petitioner s bail in accordance with law without further reference to this court. 9. Seeking to challenge the order impugned, a wide variety of submissions have been made by the learned senior counsel for the appellant with the assertions that the High Court has erroneously granted bail to the respondent in utter disregard to the facts and circumstances 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 conspi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay High Court that financing is making a particular activity operational or for sustaining it. 9.4. A learned senior counsel has also questioned the conduct of the respondent that even after dismissal of WPA No. 5448 of 2021 on 23.02.2021, he failed to appear before the Investigating Officer at 04:00 p.m.; remained unavailable at his residence; and was finally apprehended at Purba Bardhaman at 11:29 p.m. The learned counsel would submit, while relying on the decision in the case of State of U.P. v. Amarmani Tripathi: (2005) 8 SCC 21, that the respondent has shown the tendency to abscond or flee and hence, does not deserve indulgence of bail. 9.5. Further, with reference to 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions wherein, the said Prabir Kumar De and Pamela Goswami have referred to their own personal relationships as also the attempts of the respondent to forge a relationship with Pamela Goswami and the respondent having been enraged when the matter was reported to the higher authorities of their political party and he was cautioned by the party functionaries. It has been alleged that after such incidents, the respondent threatened to implicate her and Prabir Kumar De in a criminal case. Further, as per those statements, Amrit Raj Singh accompanied them in the motorcar, as indicated in the prosecution story. It has also been narrated as to how Amrit Raj Singh asked the driver 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel has also attempted to argue that one of the members of the SIT formed by the State had earlier tried to forge a false complaint against the respondent. It has been contended that the respondent was summoned without any material and even when the time to join investigation was scheduled at 04:00 p.m., the State police raided the house of the respondent at 01:30 p.m. and carried out illegal search, though no contraband article was recovered from the house/office of the respondent. 11.3. With reference to the genesis of the case arising out of FIR No. 65 of 2021 and recovery of contraband from the motorcar occupied by the said three persons, the learned counsel has particularly referred to 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 F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent s residence, it is submitted that no such hard-disk was recovered from the respondent. 11.7. The supplementary submissions made on behalf of the appellant have also been countered with further supplementary submissions on behalf of the respondent wherein, it has been reiterated that as per the FIR, the said three occupants of the motorcar pointed out as to where the contraband (cocaine) was concealed in the vehicle. As regards the purported statements of the said three occupants under Section 161 CrPC, it has been contended that the three statements annexed with the supplementary written submissions on behalf of the State were neither in the charge-sheet nor in the record of the Trial Court. 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 addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wami, hatched the conspiracy to have them implicated in an NDPS Act case and in pursuance thereof, got the contraband procured through the co-accused Amrita Singh@ Sweety after making payment for the same; got the contraband planted in the said motorcar through the other co-accused Amrit Raj Singh; and extended shelter to Amrit Raj Singh before and after the event of planting. This story is sought to be supported and strengthened with the statements of the said witnesses Md. Nasir Khan and Nishat Alam @ Ruman Khan, as recorded under Section 161 CrPC on 27.02.2021 and 28.02.2021 respectively as also their statements under Section 164 CrPC as recorded on 30.03.2021. 14.1. Though, prima facie, it appears that the aforesaid 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 travelli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are constrained to observe that the alleged statements of motorcar occupants give rise to more questions rather than supplying necessary answers, as noticed infra. 16. According to the prosecution, the FIR in question for offences under Sections 21(b) and 29 NDPS Act came to be registered on the basis of a written complaint dated 19.02.2021, as submitted to the Officer In-Charge of New Alipore Police Station, Kolkata by Somnath Sarkar, SI after the aforesaid proceedings of search of the said motorcar as also seizure of contraband from the motorcar. This complaint dated 19.02.2021 is an admitted document of the appellant and is rather the foundation of the entire matter. A few passages of the said written complaint, disclosing 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 raid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore. According to the said statements, a few minutes before the alleged encircling of motorcar by the raiding team, the said occupants had come out of the vehicle and Amrit Raj Singh remained inside for changing his clothes; and he spent a minimum of 10 to 15 minutes inside the vehicle when these three persons allegedly saw him bending down and doing something on the floor of the car! The story, as sought to be suggested in these statements, contradicts the fundamental facts stated in the initial complaint that the search and raiding team persons had in fact stopped and detained the moving vehicle; and that the occupants of motorcar pointed towards the specific places in the vehicle where the contraband items were concealed. 16.2. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disbelieved because of material available on record, the questions concerning possession of contraband, its quantity or financing are all rendered redundant. In this view of the matter, reference to the other pieces of supporting evidence like the alleged statements of the said Md. Nasir Khan and Nishat Alam @ Ruman Khan as also the alleged CCTV footage and call data records cannot provide sustenance to the prosecution case against the respondent, at least at this stage. 18. The other segment of the relevant aspects of this case pertains to the conduct of the respondent. In this regard, a few noticeable facts and factors against him could be summarised thus: he has been involved in as many as 53 criminal cases and had been convicted in two 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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