1. In this application under Section 439 of the Code of Criminal Procedure, the three petitioners Swapan Dutta, Mahesh Paswan and Samir Patra have prayed for bail in connection with Galsi Police Station Case No. 14/02 dated 31.01.02 under Sections 20/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S Act, for short) and Section 120B of the Indian Penal Code (Special Case No. 4/02). It appears that the aforesaid Galsi P.S Case No. 14/02 dated 31.01.02 was recorded on a suo motu written complaint lodged at Galsi P.S on 31.01.02 by Sub-Inspector Dhrubajyoti Mukherjee, Officer-in-Charge Galsi P.S against 1. Rafizuddin S/o. Nasib Ali of 3/14 Chinghom Kabui Thomai Tholem P.S Lilong Dist. Thabol Manipur, driver of truck No. ASOIL/6714, 2. Md. Abdulla S/o. Abdulla of do. 3. Md. Islam S/o Md. Sokab Ali of Ropoi, P.S Naogoan(S) Dist. Naogoan, Assam, 4. Swapan Dutta S/o. Sunil Dutta of 4 No. Sankaripukur, Dist. Burdwan, P.S Burdwan, 5. Mahesh Paswan S/o. Jagodish Paswan of Lakhipurmath, 6. Swamir Patra S/o. Anandamoy Patera of Purbapara, Berugram, P.S Khandagosh, Dist. Burdwan, 7. Regd. owner of truck No. ASOIL/6716, Regd. owner of Kawasaki Motor Cycle, W.B 42E 3286 and ors., alleging that on that day at 6.45 hrs. he received a secret information that a Truck No. ASOIL/6716 carrying six persons including driver was coming from Burdwan to Durgapur side loaded with Ganga. He noted the fact in G.D Vide Galsi P.S.G.D.E dated 31.01.02 and informed the S.D.O (N) Sadar over telephone regarding their information with request to depute an Executive Magistrate for search and seizure for the same. S.D.O (N) informed the complainant that Sri Sudatta Chowdhury B.D.O Galsi-II would act as an Executive Magistrate and he was intimated to contact with the complainant. Then the complainant along with S.I.B.K Pathak, S.I.D Sadhukhan S.I.S Marik, A.S.I.M.P Dutta, A.S.I.P Das A.S.I Md. Saikhanuddin, C/695 Shibu Mahapatra, C/854 M. Khan left for Baramunia Barmna and Khanopool to work out the same. They laid ambush to work out the information, particularly to trace the truck No. ASOIL/6716 on G.T Road in between Baramunia to Khano pool. At 10.15 hrs. truck No. ASOIL/6716 was coming from Burdwan side, they gave signal to the truck driver and the truck driver was outplayed. On checking six persons including driver were sitting in the driver's cabin. On being asked, they told their names and address as noted above. On cheeking the truck they found one maroon colour Kawasaki Bajaj Motor Cycle No. WB 42E/3786, which was found in the truck. Thereafter, on interrogation, the above noted accused persons confessed that a huge quantity of Ganja was kept in hidden condition in the back side of driver's cabin. On getting information from them, the complainant called two independent witnesses namely khodabox S/o. Late Khosjan of Vill. Khano, and Sk. Ali Mustaca S/o. Sk. Fohad of do. P.S Galsi, to witness the search. The complainant informed over RT. to the duty officer of Galsi P.S to send one photographer to the spot in between Baramunia and Khano Pool to take some urgent photographs. By this time Shri Sudatta Chowdhury BDO. Galsi-II reached at the spot after getting information from SDO (N) and the complainant told him about the intention and development of the fact. He also examined the above noted persons who confessed before him the facts and showed the hidden cabinet where Ganja remained concealed and in the meantime S. Sarkar, local Photographer of Galsi reached and took some photographs as shown by the accused persons. After observing all formalities under direct supervision, back side of the driver's cabin was opened by unscrewing the bolts. After removing back side of driver's cabin, a huge gap was noticed, which was packed with packets of Ganja. Some photographs were taken at this stage. Then the packets were brought out and total 25 packets (20 Big and 5 Small) were found. On being asked none of the occupants of the truck could produce any document or any paper for possession of Ganja. The packets were wrapped by papers and polythene and measurement of every individual packet was taken and total weight was found 101.9 kgs. keeping one packet containing 500 gms. also seized and offered to the accused persons till the packets seized and labelled in presence of BDO. Galsi-II and also signed by him and also signed by the witnesses and accused persons. The complainant arrested the accused persons during interrogation and the accused persons confessed that they in connivance with the owner of Truck No. ASOIL/8616 and the owner of Motor Cycle No. WB 42E 3786 after criminal conspiracy produced the consignment of Ganja from Manipur to Durgapur via Burdwan for disposal. So, under the above circumstances it was stated that the above noted accused persons in connivance with the owner of Truck No. ASCIL/8616 and Motor Cycle No. WB-42E/3786, after criminal conspiracy were inlawfully possessing 101.9 kg. of Ganja from Manipur and transporting to Durgapur via Burdwan for disposal and as such, they committed an offence punishable u/s. 20./25 of the NDPS Act, 1985 read with Section 120B I.P.C Hence, the complainant started Galsi P.S Case No. 14/02 dated 31.01.02 under Section 20/25 of the NDPS Act, 1985 read with Section 120B I.P.C against Rafizuddin S/o. Nasib Ali of 3/14 Chinghom Kabui Thamai Thabok, P.S Lilong, Dist. Monipur. 2. Md. Abdul S/o. Abdulla of Chinghom Kabui Thomai Thabok, P.S Lilong, Dist. Thabol, Manipur, 3. Md. Islam S/o. Md. Shorab Ali of Reponi, P.S Naogoan, Dist. Naogoan, Assam. 4. Swapan Dutta S/o. Sunil Dutta of 4 Sankaripur, P.S Burdwan, Dist. Burdwan, 5. Mukesh Paswan S/o. Jagadish Paswan of Lakhipurmath, P.S Burdwan, 6. Swamir Patra S/o. Anandamoy Patra of Purba Berugram, P.S Khadaghosh, Dist. Burdwan, 7. Regd. owner of Truck No. ASOIL/6716, 8. Regd. owner Motor Cycle No. WB-42E 3786.
2. The investigation case was thereafter entrusted to S.I.P Ghosh.
3. It is not disputed that the petitioners were arrested from the spot on the same day i.e 31.01.02 and charge-sheet was not submitted within 180 days i.e within July 31, 2002 and no prayer was made on behalf of the Investigating Agency for extension of time for submission of charge-sheet on or before the expiry of the statutory period of 180 days and accordingly the petitioners prayed for bail before the Special Court thereafter but the prayer for bail was rejected by the Learned Special Court although the petitioners were prepared to furnish bail.
4. Mr. Sekhar Basu learned Counsel appearing on behalf of the petitioners submitted that as the charge-sheet was not submitted within a period of 180 days as contemplated under Section 36A of the N.D.P.S Act the petitioners are entitled to be enlarged on bail as a matter of right and he cited the decision reported in (1) AIR 1975 SC 1465, Natarbar Parida v. State of Orissa (Para 5 & 8 in support of his submission).
5. Mr. Basu further submitted that the limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 of the N.D.P.S Act come in only when the question of granting bail arises on merits. By its very nature the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 Cr. P.C and the only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which, till the filing of the complaint are not before the Court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused and accordingly in the aforesaid facts and circumstances the petitioners are entitled to be released on bail and he cited the decision reported in (2) JT 1995 (4) SC 253, Union of India v. Thanishanasi paragraphs 9 & 10 in support of his submission.
6. We have heard the learned Advocate General on behalf of the State if there is any contrary view expressed by any reported decision of the Apex Court regarding the principles of law enhanciated in the aforesaid decisions cited on behalf of the petitioners. However no such reported decision of the Apex Court is placed before this Court on behalf of the State.
7. In the aforesaid facts and circumstances, following the principles of law laid down by the Hon'ble Apex Court in the decision reported in JT 1995 (4) SC 253 (supra), we order and direct that the petitioners shall be released on bait of Rs. 20,000/- (Twenty thousand) each with two sureties of Rs. 10,000/- (Ten thousand) each one of whom must be local to the satisfaction of the learned Judge, 3rd Special Court, Burdwan in connection with Galsi P.S Case No. 14/02 dated 31.01.02 under Sections 20/25 of the N.D.P.S Act, 1985 and Section 120B of the I.P.C (Special Case No. 4/02) on condition that each of the petitioners, on being released on bail shall meet the I/O of the case every alternate day and shall not absent themselve on any date fixed by the learned Special Court in respect of the case and in case of any default of any of the aforesaid condition the learned Judge 3rd Special Court, Burdwan will be at liberty to cancel the bail of the defaulted petitioner/petitioners without further reference to this Court.
8. We make it clear that we have not considered the merit of the case.
9. Let a copy of this order be sent to the Chief Secretary Govt. of West Bengal and the Director General of Police West Bengal for information regarding the serious lapses on the part of the Investigating Agency in such serious and grave nature of the case.
10. S.B
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