In the case of Smt. Rumpa Debnath (Bhowmik) vs. The State of Tripura B.A. No. 71 of 2020, Hon’ble Justice Arindam Lodh decided on whether to grant bail to an accused against whom the rigour of Section 37 of the NDPS Act could not be proved.
Facts of the Case
The accused was arrested on 24th January. The Duty Officer received information that huge quantity drugs (heroin) were illegally stored and immediately informed the higher authorities, conducted a raid and recovered drugs. 2 persons were arrested. One of them was not the possessor of the house but just visited the house for some person. Charges were framed under Sec22(b)/25 of the NDPS Act against both the accused. A bail petition was first filed by the wife of the visitor accused after the framing of charges but it was rejected. After the commencement of trial, the petitioner has approached the court again for bail.
Arguments
Bail petitioners argue that the accused has been charged under Sec22(b) and Sec 25 which do not have the rigour of Sec37 of the NDPS Act and the person has been in jail for over 1 year and 6months, with no progress of the trial to be seen in near future. Therefore the accused is entitled to be released on bail. Further, nothing was seized from the accused who was just a visitor and he had gone to the house of the drug possessor to give tuition to the children in the home which is when the police conducted the raid. The mandatory provision of Sec 42 and 52 of the NDPS Act in case of search and seizure has been violated.
The State-Respondent argued that the bail petition is devoid of any merit. The procedure under the Act was followed throughout the course of the investigation. All necessary authorizations and signatures had been obtained during the process of search and seizure. The public prosecutor also urged that filing of a successive bail application is not permissible unless there is a change in circumstances as per the case of Haricharan Biswas v. State Tripura, reported in (2018) 2 TLR 733.
Court’s observation and decision
The Court deduced two issues to be answered from the arguments of both sides. Firstly, whether bail can be provided for an offence under the NDPS Act when procedural irregularities are alleged. Secondly, whether the accused can be released on bail if the offence does not suffer the rigour of Sec 37 of the NDPS Act.
The court observed that under the Haricharan Biswas case, it was affirmed that under Sec 37 NDPS Act unless there are reasonable grounds to believe that the accused is not guilty on the basis of the material placed before it, bail cannot be granted owing to the serious nature of the charges. The charge framed by Special Judge after considering the materials manifests that the petitioner-accused has not committed any offence under Sec 19, 24, 27A and also for an offence involving commercial quantity and therefore Sec 37 is not applicable. Therefore the bail application must be judged solely on the basis of Chapter 33 of CrPC. Court noted that the accused has been in jail for over 1.5 yr and the earlier bail application was filed after framing of charge and the current application is after the commencement of trial and examination of four witnesses, hence there is a change in circumstances.
Having regard to these findings and also the pandemic situation, judging the application based on Chapter 33 of CrPC, the accused shall be released on bail provided he shall not leave the jurisdiction of the learned Special judge without permission, shall not evade trial or influence evidence and has to appear before it on dates fixed by the trial court.
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