JUDGEMENT SUMMARY:
Manik Das @Manik Chandra Das vs The Narcotics Control Bureau
DATE OF JUDGEMENT:
28th January 2022
JUDGES:
B.R. De, J.
D. Basak, J.
PARTIES:
Manik Das @Manik Chandra Das (Petitioner)
The Narcotics Control Bureau (NCB) (Respondent)
SUBJECT
The High Court of Calcutta holds that the “reasonable ground” in Section 37 of NDPS Act means something more than prima facie grounds. Section 37 deals with the condition where bail is granted to an offender under this Act.
AN OVERVIEW
- The NCB officer had information, which was reduced into writing, regarding the trafficking of substantial quantity “Ganja” by Susanta Dey and Manik Das with a car which was alleged to be unloaded in the house of Susanta Dey and then to Asim Mirdha.
- The NCB officers had reached near the vicinity of Susanta Dey’s house before the alleged vehicle approached the said house. Two persons were in the vehicle and were identified as Swapon Biswas and Susanta Dey. Both of them gave voluntary statements under section 67 of the NDPS Act.
- Five nylon sacks were found in the vehicle and the substance present in them was confirmed to be Ganja. In the follow up course, the NCB team had reached the house of Manik Das and Asim Mirdha. They had found Asim Mirdha who had also given a voluntary statement under section 67 of the NDPS Act.
- During the investigation, all the seized articles were examined in the chemical laboratory Kolkata. Asit Karmakar and Manik Das were even arrested whose statements were recorded. The mobile numbers used by accused persons were recovered from their possession and in Call Details Report (CDR) linkage was found among them.
IMPORTANT PROVISIONS
The Code of Criminal Procedure 19731
- Section 439- Empowers High Court or Court of Session with special power regarding bail
Evidence Act 1872
- Section 65-B- Outlines the admissibility of electronics records.
- Narcotics Drugs and Psychotropic Substances Act (NDPS Act) 1985:
- Section 37- Provides for offences to be cognizable and non-bailable and regulates the grants of bail.
- Section 42- Officers have the authority to enter, search, seize, and arrest without a warrant or authorization. It further provides that the information recorded in writings by the officer are required to send to immediate superior officer in copy within seventy-two hours
- Section 43- Empowers offers to seize and arrest in public
- Section 67- Provides officer power to call for information
ISSUES
The issue before High Court of Calcutta was:
- Whether bail was available to offenders under NDPS Act?
- Whether the mobile call recordings can be accepted as evidence in the absence of certificate under section 65-B of the Evidence Act?
- Whether bail could be granted on the ground that the statement of co-accused under section 67 had no value?
ANALYSIS OF THE JUDGEMENT
1. Section 37 of NDPS Act provides that for the offences involving a commercial quantity, bail could be granted on the following grounds:
a. The prosecutor had been given an opportunity to oppose the application for the release.
b. The Court on reasonable grounds had believed that-
i. The person was guilty of the offence and
ii. He was not likely to commit any offence while being on bail.
2. The Supreme Court in Union of India Vs Shiv Shanker Kesari, 2007 had observed that if bail was granted without adhering to the parameters under section 37 of NDPS Act, the bail would be cancelled. The standard for “reasonable grounds” was interpreted as something more than prima facie grounds. In Union of India Vs Prateek Shukla, 2021 it was noted that the following as the grounds for cancellation of bail for offence under the NDPS Act:
a. Non- application of mind to the rival submissions
b. The seriousness of the allegations involving an offence under the NDPS Act
3. The operative part of Section 37 of NDPS, which had proscribed the enlargement on bail of any person accused of commission of an offence under the NDPS Act in a negative form, was subjected to the limitation contained in Section 439 of Cr.P.C and the section itself. The two conditions were to be satisfied for the grant of bail. In case, either of the conditions is not satisfied, the rule is for the rejection of bail.
4. In Lucknow Vs Md. Nawaz Khan, 2021 the Supreme Court had held that though the writing down of information the receipt of it was usually preceded by search and seizure by the officer, whereas in exceptional circumstances which warranted immediate and expedient action, the information could be written down later along with the reason for the delay. It was held that the contention of non-compliance of section 42 of the NDPS Act was a question of fact which would be raised in the course of trial. In this case, the intelligence officer had reduced in writing on receipt of information as per section 42 of the NDPS Act.
5. The CDR analysis of the mobile number used by the petitioner indicated that the petitioner was regularly in touch with other accused who were known to him. Production of certificates under section 65-B (4) of EA was necessary to ensure the authenticity of the record. That could have been done in any stage of the trial and it was rather the duty of the petitioner to establish by cogent and unimpeachable evidence that he was not in conversation or contact with the arrested co- accused through the mobile phones which the NCB had relied upon to claim nexus between the petitioner and other co-accused. Therefore, it was a failure on the part of the petitioner to discharge the onus under Section 37 of the NDPS Act.
6. In the Ramesh Manju Bishnoi case, it was held that active communication between the petitioner and the co-accused was relevant to prove the factum of conspiracy. In the Re Samir Dey case, the Co- ordinate bench had no substantive materials against the petitioner apart from confessional statements and had observed that the call detail records of the telephonic conversation would have merely given rise to suspicion. In Manotosh Ghosh vs. The State of West Bengal had considered these two cases and had observed that the CDR was one of the prima facie grounds on the petitioner’s involvement in the offence under NDPS Act.
7. In Md. Washim case, the Co-ordinate Bench had held that once a prima facie link was established between the petitioner and the co-accused, the onus lies on the petitioner to rebut the presumption under the NDPS Act. Another coordinate bench of the High Court of Calcutta had granted bail to other co-accused relying on the principle that was enunciated in Tofan Singh Vs State of Tamil Nadu, 2021 which had stated that statement of co-accused under section 67 of the NDPS Act is of no value co-accused under section 67 of the NDPS Act is of no value.
CONCLUSION
The High Court of Calcutta observed that even if the statement of the co-accused was ignored, the CDRs would not be ignored. In this case, the statement of the co-accused was substantiated by other cogent evidence. Therefore, the bail was not granted to the petitioner and the CRM was rejected.
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