State Of West Bengal vs Rakesh Singh @ Rakesh Kumar Singh on 11 July, 2022


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Supreme Court of India

State Of West Bengal vs Rakesh Singh @ Rakesh Kumar Singh on 11 July, 2022

Author: Dinesh Maheshwari

Bench: Dinesh Maheshwari, Aniruddha Bose

                                                                               REPORTABLE

                                       IN THE SUPREME COURT OF INDIA
                                       CRIMINAL APPELLATE JURISDICTION


                                     CRIMINAL APPEAL NO. 923 OF 2022
                                (ARISING OUT OF SLP (CRL.) NO. 9470 OF 2021)


                 STATE OF WEST BENGAL                                ……APPELLANT(S)


                              VERSUS


                 RAKESH SINGH @ RAKESH KUMAR SINGH …… RESPONDENT(S)


                                                         JUDGMENT

DINESH MAHESHWARI, J.

Leave granted.

2. This appeal by the State of West Bengal is directed against the

order dated 24.11.2021, as passed by the Division Bench of Calcutta

High Court in CRM No. 3152 of 2021, whereby the respondent, an

accused of the offences under Sections 21(b)/29/27A of the Narcotic

Drugs and Psychotropic Substances Act, 19851, 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
Signature Not Verified

Digitally signed by
Rajni Mukhi
Date: 2022.07.11
17:28:38 IST
Reason:

for but, looking to the nature of rival submissions made before us as also

1 Hereinafter also referred to as ‘the NDPS Act’.

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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., financing illicit trafficking

in contrabands and harbouring offenders; and with the allegations that he

got the contraband procured and then got it planted in the vehicle

occupied by the aforesaid three persons.

5. It is the accusations concerning the respondent which forms the

core of the subject-matter of this appeal. Thus, we may take note of the

salient features of the prosecution case against the respondent as

follows:

5.1. As per the prosecution, the respondent had hatched a criminal

conspiracy with the other charged co-accused persons for falsely

implicating the said Prabir Kumar De and Pamela Goswami of offences

under the NDPS Act out of personal grudge. It is alleged that in order to

fulfil his designs, the respondent financed the activity of procuring

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cocaine, a contraband drug, to the tune of Rs. 8,50,000/- from the co-

accused Amrita Singh @ Sweety; that upon receiving instructions and

payment from the respondent, the said co-accused Amrita Singh @

Sweety procured the contraband from other co-accused persons, namely,

Daim Akhtar and Farhan Ahmed; and that after procurement, the

contraband was handed over to the respondent by the co-accused Amrita

[email protected] Sweety.

5.2. According to the prosecution, the respondent, thereafter, engaged

the co-accused Amrit Raj Singh, who allured the said Prabir Kumar De

and Pamela Goswami to attend a meeting with a senior political leader at

New Alipore area on 19.02.2021 in relation with the ensuing Legislative

Assembly elections; and the said Amrit Raj Singh went to the house of the

respondent on 18.02.2021 and was also seen using the vehicle of the

respondent.

5.3. It has further been alleged that on 19.02.2021, the said Prabir

Kumar De and Pamela Goswami, accompanied by their security guard

Somnath Chattopadhyay, picked up Amrit Raj Singh in their vehicle and

proceeded for the meeting scheduled at New Alipore area. Upon reaching

the place of occurrence, Amrit Raj Singh, on the pretext of changing his

clothes, stayed in the vehicle while Prabir Kumar De, Pamela Goswami,

and Somnath Chattopadhyay got off. Taking advantage of the

circumstances, Amrit Raj Singh concealed cocaine in different parts of the

vehicle and made a call to the respondent over a phone number, which

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stood in the name of one Jitendra Kumar Singh. Thereafter, Amrit Raj

Singh fled on a scooty, as instructed by the respondent and then, took

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 Department, Lalbazar,

Kolkata and the Joint Commissioner of Police, Crime, Kolkata formed the

Special Investigation Team2 under Memo No. CI/47/9/21.

2 ‘SIT’, for short.

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5.6. It has further been pointed out that a notice under Section 160 of

the Code of Criminal Procedure, 19733 read with Section 67 NDPS Act

was issued to the respondent by the investigating agency requesting his

appearance before the Investigating Officer at Narcotic Cell, 6 th Floor, KIT

Building, Kolkata on 23.02.2021 at 4:00 p.m. This notice was challenged

by the respondent by filing WPA No. 5448 of 2021 but the High Court, by

its order of the even date, dismissed the petition so filed by the

respondent.

5.7. It has yet further been alleged that the respondent failed to appear

in response to the notice aforesaid and, therefore, the police went to

search his residence at 12A Orphangunj Road, PS Watgunge, Kolkata-23

but the police personnel faced obstructions from CISF personnel, who

blocked their entry into the respondent’s residence at the instructions of

the respondent’s sons. It is the case of prosecution that the respondent

could not be located at his residence; and one hard-disk consisting of

CCTV footage was seized from his house but, upon forensic examination,

it was found that the data had been deleted therefrom. It is, however,

pointed out that the respondent was detained and arrested at Galsi PS,

Purba Bardhaman in the State of West Bengal at 11:29 p.m. on

23.02.2021.

5.8. As regards the aforesaid allegations concerning the events of

18.02.2021 and 19.02.2021, the prosecution has referred to the call

record details of the conversation between the respondent and the said
3 ‘CrPC’, for short.

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Amrit Raj Singh as also the CCTV footage recorded on the respondent’s

neighbourhood as also at other place of fleeing of Amrit Raj Singh. The

statement of one Sanjay Singh is also referred in relation to the fact of the

said co-accused Amrit Raj Singh leaving the house of the respondent.

5.9. The prosecution has further referred to the statement of one

witness Md. Nasir Khan recorded on 27.02.2021 under Section 161 CrPC

wherein he had stated that on 10.02.2021, the respondent handed over

one bundle of 2000 rupees notes to the said co-accused Amrita Singh @

Sweety and the said co-accused handed over 7/8 small packets to the

respondent. The prosecution has also referred to the statement of

another 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 Lock-

up, 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 4 and a charge-

sheet has been filed in relation thereto.

4 ‘IPC’, for short.

6

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 investigation. As per the facts projected before us,

prayer of the prosecution for discharge of the said three occupants of

motorcar is pending consideration before the Trial Court.

7. Having been arrested in connection with this case, the respondent

moved an application seeking bail before the Trial Court. The application

so moved by the respondent was considered and rejected by the learned

Judge, Special Court under NDPS Act cum 4th ASJ, Alipore, South 24

Parganas on 12.03.2021. Thereafter, the respondent approached the

High Court in the said CRM No .3152 of 2021 that has been considered

and allowed by the High Court by way of impugned order dated

24.11.2021. In the passing, we may take note of the fact that for the said

bail application having remained pending for long, the respondent

approached this Court by filing SLP(Crl.) No. 7282 of 2021, which was

decided on 24.09.2021. This Court, of course, declined to issue any

direction as such but, took note of the fact that the prayer for bail was

pending since 07.04.2021 and permitted the present respondent to make

a prayer for expeditious consideration before the High Court while

expressing hope and trust that such a prayer would be given due

consideration. As per the record, the High Court, thereafter, heard

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detailed arguments on the bail application on 07.10.2021 and pronounced

the impugned order on 24.11.2021.

8. Having taken note of the background aspects, it would now be

worthwhile to take into comprehension the relevant features of the

impugned order, whereby the High Court granted the prayer for bail, albeit

on a few extra conditions.

8.1. It was contended before the High Court on behalf of the accused-

respondent that 76 grams of cocaine was recovered from the possession

of the said occupants of the motorcar and there was no recovery of

contraband from his possession; that he was sought to be implicated on

the basis of statements made by the aforesaid three persons who are co-

accused and their statements were not admissible in evidence; that

rigours of Section 37 NDPS Act were not applicable in the case because

intermediate quantity of contraband was involved; that the initial

prosecution case and the case in the charge-sheet were diametrically

opposite inasmuch as initially, the said three persons were apprehended

on source information when they pointed out as to where in the car the

contraband 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

8
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-respondent was

the kingpin of a drug racket who would neither come in the fore-front nor

indulge in any overt act but, would be pulling the strings from behind the

curtain; that there was sufficient material to support the charge under

Section 27A NDPS Act and hence, the restrictions of Section 37 NDPS

Act were attracted; that the complicity and involvement of the accused-

respondent as the head of a drug peddling racket was duly established by

the statements of various other witnesses other than the said three car-

occupants, which include the statements of Md. Nasir Khan and Nishat

Alam @ Ruman Khan recorded under Section 164 CrPC; that on

23.02.2021, the respondent had tried to escape to Patna; that the

accused-respondent was a history-sheeter with 53 criminal cases against

him and his bail was earlier cancelled when he threatened the

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Investigating Officer of the case and the prosecution witnesses outside

the court room, as reported in the case of the State of West Bengal v.

Rakesh Kumar Singh: 2015 SCC OnLine Cal 1338; that the accused-

respondent was an influential person and was likely to tamper with

evidence and threaten prosecution witnesses, if released on bail; that

whether or not there was compliance with Section 42 NDPS Act was a

question to be raised in the course of trial and not at the stage of hearing

of a bail application as held by this Court in the case of Union of India

through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan:

2021 SCC OnLine SC 782; and that resistance of the respondent to the

attempt of the investigating agency to collect his voice sample points

towards his guilt. The learned Advocate General also relied upon the

decision of this Court in the case of State of Kerala & Ors. v. Rajesh &

Ors: (2020) 12 SCC 122 as regards operation of the rigours of Section 37

NDPS Act.

8.3. After having considered the rival submissions, the High Court

formed the opinion that the restriction of Section 37 NDPS Act would not

apply to this case and the respondent, who was in custody since

23.02.2021, qualified for grant of bail with stringent conditions.

Accordingly, the High Court ordered release of the accused-respondent

on bail with heightened conditions like: (a) he would furnish a bond in the

sum of rupees one lakh with four sureties of rupees fifty thousand each,

two of whom must be local persons; (b) he shall report to the Officer-in-

10
Charge 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
petitioner was a regular purchaser of contraband items. However,
the fact remains that in the present case only 76 gms of cocaine is
involved. As observed by the Hon’ble Apex Court in the case
of Sami Ullaha (Supra), where intermediate quantity of
narcotics is involved, it may not be justified to apply the rigours of
the provisions of Section 37 of the NDPS Act relating to grant of
bail.

7. Thirdly, the seizure of the Cocaine was from Prabir, Somnath
and Pamela as would appear from the seizure list. The First
Information Report dated February 19, 2021 also names those
three persons as the accused. They have however not been
named in the charge sheet. The prosecution case has changed
completely from what it was at the time of filing of the FIR. The
story in the charge sheet is completely different. While the case of
the prosecution initially was that recovery of the contraband item
was made from Prabir, Somnath and Pamela who were
intercepted in the Motor Car, the story in the charge sheet is that
the petitioner planted the contraband item in the Motor Car in
which those three persons were travelling to put them in trouble to
take revenge for some personal enmity. Prima facie, this raises
considerable doubt in our mind as regards the veracity of the
prosecution case.

11

8. Fourthly, in so far as the offence under Section 27A of the
NDPS Act is concerned, i.e. financing illicit trafficking and
harbouring offenders, prima facie we do not find material evidence
to support that charge. In our view, being involved in one solitary
transaction concerning contraband items will not amount to
financing illicit traffic in narcotics. The word “trafficking” connotes
continuous flow. There has to be some degree of continuity and
regularity in drug dealing before a person can be said to be
trafficking in drugs. Similarly, financing illicit traffic would
necessarily mean doing so on a regular or continuous basis. It is
much more than purchasing or selling contraband items on one
occasion. Such a solitary transaction would, in our prima facie
opinion, not fall within the mischief of Section 27A of the NDPS
Act. In this connection, one may refer to a decision of the Bombay
High Court rendered on October 7, 2020 in Criminal Bail
Application (Stamp) No. 2386 of 2020 (Reha Chakraborty v.
The Union of India State of Maharashtra
).

9. Fifthly, we also notice that none of the 53 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 sample, may or may not have an
adverse effect on his case at the trial, but we are not concerned
with the same at this stage.

13. We are conscious about the salutary object of the NDPS Act
and we have given due regard to the decision of the Hon’ble Apex
Court in the case of State of Kerala v. Rajesh, (Supra).
There cannot be any doubt that persons indulging in illegal
trafficking in contraband drugs and psychotropic substances must
be dealt with, with iron hands. The activities of such persons have
a widespread deleterious effect on the society at large. Countless
members of the society, often of tender age, fall prey to the
heinous and nefarious activities of drug peddlers. However, the
decision in each case must depend on the facts of the case and

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no principle of law can be applied blindly to a given set of facts. In
the facts of the present case, on an assessment of the material on
record, we are of the prima facie view that the petitioner may not
have committed the offence that he is charged with. Further,
considering the past history of the petitioner which we have
adverted to above, there is nothing on record to suggest that he is
likely to commit an offence under the NDPS Act while on bail.

14. For the reasons aforestated we are of the view that the
restriction in Section 37 of the NDPS Act would not apply.
Assessing the nature and gravity of the alleged offence and the
material on record and also in view of the fact that the petitioner
has been in custody since February 23, 2021, we are of the view
that the petitioner qualifies for bail but on stringent conditions.

15. Accordingly, we direct that the petitioner, namely, Rakesh
Singh @ Rakesh Kumar Singh shall be released on bail upon
furnishing a bond of Rs. 1,00,000/-, with four sureties of Rs.
50,000/- each, two of whom must be local, to the satisfaction of
the Learned Judge, Special Court under the NDPS Act, Alipore,
South 24 Parganas, and on further condition that he shall report to
the Officer-in-Charge of the concerned police station once in a
week until further orders. The petitioner shall appear before the
trial Court on every date of hearing until further orders and shall
not intimidate the witnesses and/or tamper with evidence in any
manner whatsoever. He shall not travel outside West Bengal
without the prior leave of the Trial Court and shall surrender his
passport before 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,

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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 conspiracy, financed the activity of procuring

cocaine to the tune of Rs. 8.5 lakhs through the co-accused Amrita Singh

@ Sweety; then, engaged another co-accused Amrit Raj Singh who lured

the said Pamela Goswami and Prabir Kumar De to meet a political leader

and on 19.02.2021, planted the contraband in their vehicle, and after

planting the contraband, informed the respondent about execution of the

work and fled from the spot to take shelter at the respondent’s residence.

According to the learned counsel, it is clearly made out that the

respondent financed the activity of procuring cocaine worth Rs. 8.5 lakhs

through the co-accused Amrita Singh @ Sweety and then, harboured the

offender Amrit Raj Singh; and this prosecution case against the

respondent is duly supported by the statements of the witnesses Md.

Nasir Khan and Nishat Alam @ Ruman Khan recorded under Section 161

CrPC as also under Section 164 CrPC and is further supported by the

CCTV footage before and after the incident as well as the call data

records. Learned counsel would argue that the High Court has seriously

erred in not considering the relevant facts and in holding that the

restrictions under Section 37 NDPS Act would not apply to the

respondent, while losing sight of the fact that this provision operates in

addition to the requirements of CrPC.

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9.2. The learned senior counsel has further contended that the High

Court failed to consider that mere absence of possession of contraband

does not absolve scrutiny under Section 37 NDPS Act, as held by this

Court in the case of Md. Nawaz Khan (supra). According to the learned

counsel, the High Court has proceeded on the considerations that there

was no recovery from the respondent; that the recovery was of

intermediate quantity; and that the initial case of prosecution has changed

but, the High Court has ignored the fact that after the arrest of Pamela

Goswami and Prabir Kumar De with whom cocaine was found, the

investigation revealed that all this was done in furtherance of the

conspiracy to implicate them at the instance of the respondent.

9.3. While reasserting that a clear case under Section 27A NDPS Act

is made out, the learned senior counsel has contended that the High

Court’s reference to the case of Rhea Chakraborty v. Union of India &

Anr.: 2020 SCC OnLine Bom 990 remains misplaced inasmuch as, even

in that decision, it was held by the Bombay 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

15
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 further highlighted the fact that the

respondent has been involved in as many as 53 criminal cases at

different police stations in the State of West Bengal and has the history of

threatening public servants. It has particularly been pointed out that in the

year 2015, the respondent attempted to threaten the Investigating Officer

and to snatch away the Government documents which resulted in Hare

Street PS Case No. 108 dated 19.02.2015, where he was ultimately

convicted. It has further been pointed out, with reference to the order in

the case of State of West Bengal v. Rakesh Kumar Singh: (2015) SCC

OnLine Cal 1338, that even in custody, he had threatened the police

officers. It has yet further been submitted that the respondent refused to

follow the norms of the Central Lock-up, Lalbazar and on being requested

to do so, he threatened the security personnel with dire consequences;

16
he also tried to assault and attempted to abscond; and yet further, on

being produced before the NDPS Court, he 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 and 506

IPC.

10. In this matter, we had heard learned counsel for the parties on

18.05.2022. During the course of submissions, a few queries cropped up,

particularly in regard to the status of the said three occupants of the

motorcar and as to whether any of their statements had been recorded as

also about the particulars of cases pending against the respondent.

Having regard to the circumstances, while closing the matter, we

permitted the learned counsel for the parties to file supplementary written

notes on their submissions as also documents, in addition to the

submission notes and documents already filed by them. Accordingly, on

behalf of the appellant-State, supplementary written submissions have

been filed with additional documents.

10.1. By way of the said supplementary submissions and documents, it

has been asserted that after constitution of Special Investigation Team on

22.02.2021, the statements under Section 161 CrPC of the said three

occupants of the motorcar were recorded, which uncovered the criminal

conspiracy hatched by the respondent to implicate them out of personal

vendetta. The statements of these three persons, said to have been

recorded by the SIT, have been annexed with these supplementary

17
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 not been discharged and in the event of being

discharged, they would be cited as witnesses by the prosecution.

10.3. As regards the criminal antecedents of the respondent, a list of

criminal cases against him has also been placed before us while pointing

out that 51 cases are pending against him and in two cases, he has been

18
convicted wherein the allegations were of criminal intimidation and

wrongful restraint of police personnel.

10.4. It has, therefore, been submitted that looking to the nature of

accusations and the conduct of the respondent, he is not entitled to be

released on bail; and the impugned order deserves to be set aside.

11. The submissions so made on behalf of the appellant State have

been equally countered by the learned counsel for the respondent while

supporting the order impugned and while asserting that the respondent

has been sought to be framed in this case with a concocted story and

with distortions of facts.

11.1. The learned counsel has referred to the five major factors taken

into consideration by the High Court, namely, that only intermediate

quantity of contraband was involved; that Section 27A NDPS Act was not

attracted due to lack of prima facie evidence concerning involvement of

the respondent; that there was no history of the respondent dealing in

narcotics; that there was no recovery of contraband from the physical or

conscious possession of the respondent; and that the FIR case has been

completely changed by the State in the charge-sheet, raising

considerable doubt regarding the veracity of prosecution case. The

learned counsel would submit that the impugned order, thus, proceeds on

valid considerations and yet, the High Court has imposed rather stringent

conditions while granting bail, which are being complied with by the

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respondent. Thus, according to the learned counsel, no case for

interference is made out.

11.2. The learned counsel has again made reference to the

aforementioned factual aspects and has strenuously argued that the

material witnesses in support of the accusations of conspiracy against the

respondent allegedly gave their statements to the police on 27.02.2021

and 28.02.2021 respectively. That being the position, on 22.02.2021,

when the respondent was served with notice, the investigation agency

had no material to connect him with the present case and there was no

reason to summon him. The learned 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

20
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 FIR cannot be said to

be unjustified. It is submitted that there is not even prima facie evidence

to allege that the respondent got planted contraband in the motorcar of

the said three occupants, who remain the main accused persons in this

case.

11.4. Apart from questioning the correctness of the statements said to

have been made by the said witnesses Md. Nasir Khan and Nishat Alam

@ Ruman Khan, the learned counsel has pointed out that both of them

are convicts in a rape case and they came out of jail only 2-3 months

before the incident related with the present matter. This apart, according

to the learned counsel, even taking their statements on face value, the

charge under Section 27A will not get attracted for it being solitary

transaction and the motive being of revenge and not drug peddling. The

learned counsel has elaborated that for attracting the mischief of Section

27A NDPS Act, there ought to be doing something on regular basis and a

solitary transaction is not covered thereunder; and this is coupled with the

fact that nothing was recovered from the respondent or from any place

over which he had exclusive control.

11.5. It has further been submitted that there was no question of the

respondent absconding; rather he had duly replied to the notice and, in

21
fact, had also given his locations. Thus, the police were well aware of his

location and hence, they could arrest him whenever they chose.

11.6. As regards the cases against the respondent, it has been argued

that the respondent is a well-known political team leader and a substantial

number of cases were filed against him by the State police itself but, in

none of such cases, the respondent was involved in the offences

pertaining to the NDPS Act.

11.6.1. It has also been submitted that in Hare Street PS Case No. 108

dated 19.02.2015, the respondent was convicted only under Section 353

IPC and his appeal against conviction is pending and sentence has been

suspended. It has also been pointed out that SLP(Crl.) No. 5053 of 2015,

filed by the respondent against the bail cancellation order is also pending,

wherein this Court has granted interim relief against bail cancellation.

11.6.2. It has further been submitted that the entire case is a concocted

one and no connecting material is available in the record. As regards the

allegations about removing of data from the hard-disk of CCTV footage 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

22
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 addict. Moreover, the observations made

by the High Court in the order dated 06.01.2022, while granting bail to the

co-accused Amrita [email protected] Sweety have also been referred.

11.8. It has been reasserted that the allegations levelled against the

respondent of financing illicit trafficking is not made out nor any case of

harbouring offenders is made out. The decision in the case of Rhea

Chakraborty (supra) has been relied upon.

12. We have given anxious consideration to the rival submissions and

have scanned through the material placed before us.

13. At the first blush, a few factors appear operating against the

respondent and it appears questionable if the respondent was entitled to

be granted bail in this matter, particularly having regard to the facts and

circumstances that: (a) the accusation is essentially of financing the

23
trafficking of contraband and also of harbouring offenders, which relates

to the offence under Section 27A NDPS Act and to which, the rigours of

Section 37 NDPS Act do apply; (b) the accusation is supported by prima

facie evidence, including the statements of witnesses as also CCTV

footage and call data records; (c) on 23.02.2021, even though the

respondent attempted to question the notice summoning him to appear at

04:00 p.m. and the High Court dismissed his writ petition but, he did not

appear and was apprehended later in the night at a distant place; (d) the

prosecution has shown that the respondent 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.

13.1. However, a comprehensive look at the salient and core features of

this case persuades us to endorse the view taken by the High Court as

being a possible view of the matter, particularly in regard to the doubt on

the prosecution case and consequentially a reasonable ground to believe

against the complicity of the respondent.

14. The accusation against the respondent pertaining to offence under

Section 27A NDPS Act is essentially based on the prosecution story that

the respondent, nursing a grudge against the said two occupants of the

motorcar namely, Prabir Kumar De and Pamela Goswami, hatched the

24
conspiracy to have them implicated in an NDPS Act case and in

pursuance thereof, got the contraband procured through the co-accused

Amrita [email protected] 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 travelling to put them in trouble because of personal enmity, was of

considerable doubt. The High Court has, and in our view rightly so, not

elaborated on all the features of evidence so as to leave the relevant

aspects open for trial. However, in view of the contentions advanced

before us, it may be observed that at the present stage, the contention on

the part of the respondent cannot be ignored that if such statements of

25
the said two witnesses were recorded on 27.02.2021 and 28.02.2021,

there was no material with the investigating agency to summon him on

22.02.2021. This is apart from the fact that the statements of the said two

witnesses, prima facie give rise to some reasonable questions, as to why

were they kept as companions while the respondent and the co-accused

Amrita Singh @Sweety purportedly carried out the alleged clandestine

deals with exchange of contraband and the currency?

15. In response to the said part of the contentions of respondent that

there was no material with the prosecution to summon him on

22.02.2021, it has been alleged on behalf of the appellant that the said

three occupants of motorcar made their statements which were recorded

under Section 161 CrPC and those statements gave out the background

of animosity of the respondent as also the methodology employed by the

respondent through the co-accused Amrit Raj Singh by getting the

contraband planted in the vehicle. Serious objections have been raised

on behalf of the respondent as regards the said three statements of the

motorcar occupants with the submissions that the same were not part of

the charge-sheet and were not on the record of the Trial Court. This apart,

on behalf of the respondent, another statement of Pamela Goswami, said

to have been recorded on the date of seizure i.e., 19.02.2021 has been

placed before us while submitting that the same is a part of the record

and therein, she has admitted herself to be a person dealing in narcotic

drugs. Having regard to the circumstances of the case and the subject-

26
matter of this appeal, we do not propose to enter into this controversy as

to whether the alleged statements of the said motorcar occupants do form

a part of the Trial Court record or not nor do we propose to make any

observation as regards evidentiary value thereof but, after examining the

same on their face value and taking note of the other relevant material on

record, we 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
raiding team members on the road in front of a house named as
Parameshwari Sadan at 92/93 Nalini Ranjan Avenue, block-B
(formerly 24N, Block-B), PS-New Alipore, Kol-53 and found two
male and one female persons sited inside of the maroon colored

27
car bearing no. WB06P0233. One male person sited at driver sit
and another male person waws sited next to the driver seat (front)
and one female person sited at rear seat of the said vehicle/car.

We disclosed our identity for the purpose of detention…
*** *** ***
…..After that the undesigned started to search the male detainees
and the said vehicle/car one by one on the spot in presence of all
maintaining all legal formalities and at that time the lady constable
Pema Lamu Sherpa started to search the female detainee
maintaining decency and decorum. During search of the vehicle
bearing no. WB06P0233 on being asked the all detainees of the
vehicle bearing no. WB06P0233 pointed out towards at the rear
zip cover of the left front seat and under driver’s seat of the said
vehicle where the contravened drugs/cocaine were found in
concealed manner in black colored polythene packets. Thereafter
undersigned took out two black colored polythene packets and
opened those one by one. On being opened the packet found in
the left side rear zip cover of driver seat, found 35 pieces
transparent zip pouch each containing white colored power (sic)
said to be cocaine and weighing about 40 gms. On being opened
the packets found under the driver seat, found 31 pieces
transparent zip pouch each containing white coloured power (sic)
said to be cocaine and weighing about 36 gms….”
(emphasis supplied)

16.1. Two major aspects emerge from the extraction foregoing: one,

that before interception, 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 concealed

manner i.e., rear zip cover of the left front seat and beneath the driver’s

seat. Both these assertions, when examined with reference to the alleged

statements of the three motorcar-occupants, as placed before us with

supplementary written submissions, their incompatibility and contradiction

strikingly come to the fore. According to the said statements, a few

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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 of the version of the SI as given in the written

complaint because, it is not the case of the appellant that the version in

the written complaint is not correct. In this view of the matter, the very

edifice of the prosecution case against the respondent crumbles down

and falls flat. Putting it differently, the story of planting of contraband in the

vehicle in question by some third person like Amrit Raj Singh could only

29
be disbelieved, for being squarely contrary to the initial case of the

prosecution, as stated in the written complaint.

16.3. Once the veracity of prosecution case against the respondent is in

serious doubt, further analysis on the other factors about financing the

drug trafficking and harbouring of offender need not be undertaken

because, when the story of planting of contraband is removed out of

consideration, all other factors by which respondent is sought to be

connected with such alleged planting could only be regarded as false and

fanciful, at least at this stage.

16.4. Hence, suffice it to observe for the present purpose that in the

given set of facts and circumstances, the High Court has rightly found that

applicability of Section 27A NDPS Act is seriously questionable in this

case. That being the position; and there being otherwise no recovery from

the respondent and the quantity in question being also intermediate

quantity, the rigours of Section 37 NDPS Act do not apply to the present

case.

17. After the discussion aforesaid, we are constrained to reiterate that

the High Court has dealt with this part of the matter without much

elaboration and rightly so, for only the prayer of bail being under

consideration. However, we have considered it appropriate to delve

farther in the matter in view of the submissions made and material

presented before us. In any case, for what has been discussed

hereinabove, the result precisely remains the same as indicated by the

30
High Court, that diametrically opposite case in the charge-sheet than that

alleged in FIR gives rise to serious doubt on the veracity of the

prosecution case against the respondent. In this view of the matter, the

other part of submissions and reference to the cases of Md. Nawaz Khan

and Rhea Chakraborty (supra) do not require much elaboration. As

aforesaid, when the case against the respondent of getting the

contraband planted in the vehicle in question is prima facie 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

31
Investigating Officer even after dismissal of his writ petition by the High

Court and was arrested at a faraway place. These facts and factors,

prima facie, give rise to the question as to whether the respondent was

entitled to be granted the indulgence of bail. The High Court has taken

the view that, prima facie, the respondent might not have committed the

offence he has been charged with in this case; and, looking to his past

history, there was nothing on record to suggest that he was likely to

commit an offence under the NDPS Act while on bail. The High Court has,

in the totality of circumstances, taken the view that the respondent was

entitled for bail on stringent conditions and has imposed additional

conditions as noticed hereinbefore.

18.1. Although, the past history of the respondent and even his conduct

in relation to the processes concerning the present case give rise to a few

questions but, the strong countervailing factor in the present case is the

prima facie indication that he is being sought to be framed by concoctions

and baseless stories. Another factor noticeable is that the respondent has

not been involved in any NDPS Act case or any akin offence in the past.

Interestingly, it is noticed from the material placed on record that nothing

of any contraband article has been recovered from the respondent or

from any place under his exclusive control. This factor further adds on to

the doubt as to whether the respondent had at all been indulgent in

narcotics or any contraband? That being the position, the view as taken

by the High Court cannot be said to be an altogether unacceptable or

32
impossible view of the matter. Moreover, it cannot be said that the

respondent was consciously seeking to abscond on 23.02.2021 merely

because he was found in the night at Purba Bardhaman and not at

Kolkata. In any case, the aspect relating to tendency to flee has been duly

taken care of with the conditions as imposed by the High Court. The other

submissions with reference to the decision in the case of Prasanta

Kumar Sarkar (supra) hardly make out a case for interference

particularly looking to the nature of evidence sought to be adduced by the

prosecution against the respondent. In this regard, we would hasten to

observe that apart from the stringent conditions already imposed by the

High Court, it is always open for the prosecution to seek imposition of any

further condition or even to seek cancellation of the bail granted to the

respondent, in case of any fault on his part in due adherence to the

conditions already imposed.

19. In view of the above, we find no reason to consider interference in

the order passed by the High Court granting bail to the respondent with

specific conditions.

20. Before concluding on the matter, we deem it appropriate to

observe that none of the comments herein would be of any bearing on the

final view to be taken by the Trial Court after the trial because, the

observations herein are only of prima facie view and that too, so far

relevant for the purpose of the question of grant of bail to the respondent.

33

21. Accordingly, and in view of the above, this appeal fails and is

dismissed subject to the observations foregoing.

……….……………………. J.

(DINESH MAHESHWARI)

……….……………………. J.

(ANIRUDDHA BOSE)

NEW DELHI;

JULY 11, 2022.

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