Hero Sarkar v. Union of India through the Intelligence Officer Narcotics Control Bureau Kolkata Zonal Unit

On August 22, 2023, acting on source information, the Narcotics Control Bureau (NCB) team raided the petitioner’s house and seized huge quantity of contraband items. The petitioner was arrested on August 26,

2023. He prays for bail.

Arguments on behalf of the petitioner:- (A) The head of the raiding team namely Shri Pushkar, himself acted as a Gazetted Officer while conducting the search and seizure. This is in violation 2 of Section 50(1) of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (in short ‘NDPS Act’).It also violates the law laid down by the Hon’ble Supreme Court in State of Rajasthan v. Parmanand& Anr., (2014) 5 SCC 345, paras 15, 19, 20. The petitioner also relies on the decisions of a Coordinate Bench of this Court inRe. Md. Mohaimen Hossain @ Md. Mohaimenul Haque @ Mom etc., reported in 2014 SCC OnLine Cal 20405 and in Re. Sahedul Mahaldar reported in 2014 SCC OnLine Cal 22788. (B) The seizure list does not contain the signature of the petitioner. This supports the plea of the petitioner that he was not present at the time of seizure. It appears from the seizure memo that the seizure took place on August 26,2023 at 06:05 hours and was completed at 08:50 hours but the arrest was undertaken on August 26, 2023 at 08:50 hours at a place which was different from the place of seizure. Further, the InvestigatingAgency could not produce a scrap of paper showing that the petitioner is the owner of the house from which the contraband items were seized. In this connection reliance was placed on the decision of the Hon’ble Supreme Court in the case of Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, reported at (2022)16 SCC 58 paras 13, 18, 31, 32 and on the decision of a Coordinate Bench of this Court in the case of Babu Mondal & Ors. v. The State of West Bengal rendered in CRAN No. 1 of 2019 in CRA 6 of 2019 paras 21, 28-32. (C) The memo of arrest does not contain any ‘Columnx’. As such, no signature of any family member of the petitioner or a respectable person of 3 the locality was obtained. This is in breach of the provisions of Section 41B Cr.P.C. and the mandatory directions of the Hon’ble Supreme Court in the case of D.K. Basu v. The State of West Bengal reported at(1997)1 SCC

When the accused raises doubts on the mode of arrest contending that the arrest was not made in the manner claimed by the prosecution, the requirement of complying with Section 41B Cr.P.C. assumes great importance and non-compliance therewith dilutes the restrictions in Section 37 of the NDPS Act. In this connection reliance was placed on the following decisions:- (i) Joga Ram v. State of West Bengal reported in 2023 SCC OnLine Cal 2161 Paras 16-19. (ii)Chandra Bahadur Tamang v. The State of West Bengal reported in 2023 SCC OnLine Cal 2160 paras 4-7. (iii) In the matter of Abhiram Biwas @ Amar Biswas in CRM (NDPS) 698 of 2023 judgement dated September 13, 2023,rendered in CRM NDPS 698 of 2023. (D) The sole independent seizure witness being PW-3 namely Sujit Das has turned hostile and has negated the factum of seizure in his presence. He has deposed totally contrary to the prosecution case and his deposition raises serious doubts regarding the alleged search, seizure and arrest, totally demolishing the prosecution case. In this connection reliance was placed on the Supreme Court Decision in Sanjeet Kumar Singh, 4 (Supra)and the decision of a Coordinate Bench of this Court in the case of Abhiram Biswas, (Supra). (E) The petitioner has been in custody for about one year and three months. Only 3 out of 10witnesses have been examined. The right to speedy trial is a fundamental aspect of criminal justice system, enshrined in various legal frameworks to prevent undue and oppressive incarceration prior to conviction. On the ground of delay in progress of trial he should be enlarged on bail. In this connection reliance was placed on the decision of the Hon’ble Supreme Court in the case of V. Senthil Balaji v. Deputy Director, Directorate of Enforcement reported in 2024 SCC Online SC 2626 Paras 24 to 29.

Arguments of the respondent:- (A) While considering a bail application under the NDPS Act, stringent conditions of Section 37 of that Act have to be satisfied. Otherwise, bail cannot be granted. (B) Unlike in other cases, in an NDPS case, if contraband item is found in the possession of the accused, the presumption of innocence is not available to him. In this connection, learned Advocate referred to Section 54 of the NDPS Act. Learned Counsel also relied on the decision of the Hon’ble Supreme Court in the case of Union of India and Anr v. Sanjeev V.