Supreme Court of India
STATE OF WEST BENGALversusRAKESH SINGH @ RAKESH KUMAR SINGH
- Citation
- 2022 INSC 691
- Decided
- 11 July 2022
- Disposal
- Dismissed
- Bench
- DINESH MAHESHWARI
Holding
The Supreme Court upheld the High Court’s grant of bail, finding the prosecution case doubtful, Section 27A not applicable, and the rigours of Section 37 NDPS Act not applicable.
Summary
The State of West Bengal appealed against the Calcutta High Court’s order granting bail to Rakesh Singh, who was accused under Sections 21(b), 29 and 27A of the NDPS Act for allegedly financing the procurement of cocaine and planting it in a motorcar to frame two occupants. The Supreme Court examined the credibility of the prosecution’s narrative, noting that the written complaint and the police’s account contradicted the statements of the vehicle occupants and that no contraband was recovered from the accused’s possession. It held that the prosecution case against the respondent was in serious doubt, rendering the charge under Section 27A untenable and the rigours of Section 37 inapplicable given the intermediate quantity involved. The Court also considered the respondent’s lack of prior NDPS offences and the stringent conditions imposed by the High Court. Consequently, the appeal was dismissed and the bail order upheld.
Issues considered
- The applicability of the rigours of Section 37 of the NDPS Act to the bail application.
- Whether the prosecution has established a prima facie case under Section 27A of the NDPS Act (financing illicit trafficking and harbouring offenders).
- The credibility of the allegation that the respondent planted the contraband in the vehicle.
- The relevance of the respondent’s past criminal history and alleged tendency to abscond in deciding bail.
- Whether the High Court’s grant of bail with conditions should be interfered with.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 164
- Indian Penal Code, 1860s. 353, s. 506
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 21(b), s. 27A, s. 29, s. 37, s. 42
Subjects
NDPS ActBailSection 37Section 27ADrug traffickingPlanting of contrabandIntermediate quantityCriminal conspiracy
Judgment
538 [2022]REPORTS
SUPREME COURT 14 S.C.R. 538 [2022] 14 S.C.R.
A STATE OF WEST BENGAL
v.
RAKESH SINGH @ RAKESH KUMAR SINGH
(Criminal Appeal No. 923 of 2022)
B JULY 11, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
ss.27A, 37, and 21(b)/29 – Rigours of provisions of s.37 relating to
grant of bail – Inapplicability – Cocaine, a contraband drug,
C
recovered from a motorcar with three occupants – Respondent
accused of offences u/ss.21(b)/29/27A – Accusation against
respondent pertaining to offence u/s. 27A that he along with other
co-accused hatched criminal conspiracy to implicate two occupants
of the motorcar under the NDPS Act out of personal grudge –
D Prosecution alleged that respondent got the contraband procured
after making payment for the same and then got it planted in the
vehicle occupied by the three persons – Having been arrested, the
respondent filed bail application – Trial Court rejected the bail
application – Respondent approached High Court – High Court
held that the restriction of s.37 would not apply to this case and the
E
respondent, who was in custody, qualified for grant of bail with
stringent conditions – On appeal, held: The story of planting of
contraband in the vehicle in question by some third person could
only be disbelieved, for being squarely contrary to the initial case
of the prosecution, as stated in the written complaint – Once the
F 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 story of planting of contraband is removed out of
consideration, all other factors by which respondent was sought to
be connected with such alleged planting could only be regarded as
G
false and fanciful, at least at this stage – In the facts and
circumstances, the High Court rightly found that applicability of
s.27A was 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
H rigours of s.37 do not apply to the present case – The past history
538
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 539
KUMAR SINGH
of the respondent and even his conduct in relation to the processes A
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 was being sought to be framed by concoctions
and baseless stories – Another factor noticeable was that respondent
was not involved in any NDPS Act case or any akin offence in the
B
past – Further, nothing of any contraband article was recovered
from 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 impossible view of the C
matter – Also, 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 – No reason
D
for interference in order passed by High Court granting bail to the
respondent with specific conditions – Bail.
Dismissing the appeal, the Court
HELD:1. The contention on the part of the respondent
cannot be ignored that if statements of two witnesses were E
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 a co-
accused purportedly carried out the alleged clandestine? deals F
with exchange of contraband and the currency? [Para 14.1][559-
F-H]
2.1. 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. G
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, disclose as to what exactly
transpired in detaining the vehicle and as to how the contraband
was recovered. [Para 16][560-E-G] H
540 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 2.2. Two major aspects emerge therefrom: 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/
B
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, with supplementary
written submissions, their incompatibility and contradiction
C strikingly come to the fore. According to the said statements, a
few minutes before the alleged ‘encircling’ of motorcar by the
raiding team, the said occupants had come out of the vehicle and
Amrit Raj Singh (co accused) 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
D
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
E specific places in the vehicle where the contraband items were
concealed. [Para 16.1][16.1-G-H, A-C]
3. 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
F 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 view of this Court, 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
G 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 could only be disbelieved, for being squarely
H
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 541
KUMAR SINGH
contrary to the initial case of the prosecution, as stated in the A
written complaint. [Para 16.2][562-C-F]
4. 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 B
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. 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; C
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.
[Paras 16.3 and 16.4][562-F-H; 563-A]
5. The past history of the respondent and even his conduct D
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 E
any NDPS Act case or any akin offence in the past. 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 F
as taken by the High Court cannot be said to be an altogether
unacceptable or 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 G
relating to tendency to flee has been duly taken care of with the
conditions as imposed by the High Court. 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
H
542 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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. In view of the above, there is no reason to
consider interference in the order passed by the High Court
granting bail to the respondent with specific conditions. [Paras
18.1 and 19][564-B-G]
B
State of West Bengal v. Rakesh Kumar Singh 2015 SCC
OnLine Cal 1338; Union of India through Narcotics
Control Bureau, Lucknow v. Md. Nawaz Khan 2021
SCC OnLine SC 782; State of Kerala & Ors. v. Rajesh
& Ors. (2020) 12 SCC 122 : [2020] 3 SCR 348; Rhea
C
Chakraborty v. Union of India & Anr. 2020 SCC
OnLine Bom 990; State of U.P. v. Amarmani Tripathi
(2005) 8 SCC 21 : [2005] 3 Suppl. SCR 454; Prasanta
Kumar Sarkar v. Ashish Chaterjee & Anr. (2010) 14
SCC 496 : [2010] 12 SCR 1165; State of West Bengal
D v. Rakesh Kumar Singh (2015) SCC OnLine Cal 1338
– referred to.
Case Law Reference
[2020] 3 SCR 348 referred to Para 8.2
E [2005] 3 Suppl. SCR 454 referred to Para 9.4
[2010] 12 SCR 1165 referred to Para 9.5
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
923 of 2022.
F From the Judgment and Order dated 24.11.2021 of the High Court
at Calcutta in CRM No. 3152 of 2021.
Anand Grover, Sr. Adv, Suhaan Mukerji, Vishal Prasad, Abhishek
Manchanda, Sayandeep Pahari, Tanmay Sinha, M/s. PLR Chambers
and Co. Advs. for the Appellant.
G
Vivek Narayan Sharma, Ms. Mahima Bhardwaj, Nikhil Jaiswal,
Ajay Singh, Sudhanshu Khandelwal, Shubham Awasthi, Advs. for the
Respondent.
H
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 543
KUMAR SINGH
The Judgment of the Court was delivered by A
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 B
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, 1985 1, has been ordered to be
enlarged on bail with certain additional conditions, apart from bail bonds
and sureties.
C
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 for but, looking to the nature of rival submissions made before us
as also the nature of accusations concerning the respondent, a somewhat
lengthy reference to the relevant background aspects is rather inevitable.
D
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. E
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 F
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:
G
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
1
Hereinafter also referred to as ‘the NDPS Act’. H
544 SUPREME COURT REPORTS [2022] 14 S.C.R.
A fulfil his designs, the respondent financed the activity of procuring 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
B
was handed over to the respondent by the co-accused Amrita Singh@
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
C 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
D 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,
E 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 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.
F
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,
G 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
H written complaint leading to the FIR in question shall have their own
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 545
KUMAR SINGH [DINESH MAHESHWARI, J.]
bearing on the contentions urged in this matter. The same shall be A
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, B
Kolkata and the Joint Commissioner of Police, Crime, Kolkata formed
the Special Investigation Team2 under Memo No. CI/47/9/21.
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 C
requesting his appearance before the Investigating Officer at Narcotic
Cell, 6th 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.
D
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 E
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 F
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 Amrit
Raj Singh as also the CCTV footage recorded on the respondent’s G
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.
2
‘SIT’, for short.
3
‘CrPC’, for short. H
546 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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
B
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
C 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
D
offences under Sections 353/506 of the Indian Penal Code, 18604 and a
charge-sheet has been filed in relation thereto.
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
E 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
F 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 4 th 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
G 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
4
H ‘IPC’, for short.
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 547
KUMAR SINGH [DINESH MAHESHWARI, J.]
issue any direction as such but, took note of the fact that the prayer for A
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
detailed arguments on the bail application on 07.10.2021 and pronounced
B
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.
C
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; D
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 E
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 F
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 G
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 H
548 SUPREME COURT REPORTS [2022] 14 S.C.R.
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
B
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;
C that the accused-respondent was a history-sheeter with 53 criminal cases
against him and his bail was earlier cancelled when he threatened the
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
D
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:
E 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.
F
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
G 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-
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
H Court; and (d) he would surrender his passport before the Trial Court
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 549
KUMAR SINGH [DINESH MAHESHWARI, J.]
immediately. Having regard to the submissions made in this case, we A
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. B
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 C
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 D
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 E
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 F
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 G
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. H
550 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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
B
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
C 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).
D
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.
E
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
F 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.
G 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
H
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 551
KUMAR SINGH [DINESH MAHESHWARI, J.]
furnish voice sample, may or may not have an adverse effect on A
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). B
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 C
in each case must depend on the facts of the case and 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 D
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. E
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 F
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 G
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 H
552 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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
B 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
C 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,
D 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
E 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
F 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
G 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
H requirements of CrPC.
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 553
KUMAR SINGH [DINESH MAHESHWARI, J.]
9.2. The learned senior counsel has further contended that the A
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
B
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. C
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 D
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 E
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
Tripathi: (2005) 8 SCC 21, that the respondent has shownthe 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 F
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
G
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
H
554 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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:
B
(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; he also tried to assault and attempted to abscond; and
C 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
D 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
E 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
F 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,
G said to have been recorded by the SIT, have been annexed with these
supplementary 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
H
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 555
KUMAR SINGH [DINESH MAHESHWARI, J.]
cautioned by the party functionaries. It has been alleged that after such A
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
B
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 C
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 D
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. E
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. F
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 G
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
H
556 SUPREME COURT REPORTS [2022] 14 S.C.R.
A on valid considerations and yet, the High Court has imposed rather
stringent conditions while granting bail, which are being complied with
by the 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
B 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
C 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
D 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
E 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 anyone concealing cocaine in the motorcar without knowledge of
the said occupants. In the given circumstances, according to the learned
F 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
G 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-
H 3 months before the incident related with the present matter. This apart,
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 557
KUMAR SINGH [DINESH MAHESHWARI, J.]
according to the learned counsel, even taking their statements on face A
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
B
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 fact, had also given his locations. Thus, the police were well aware of
his location and hence, they could arrest him whenever they chose. C
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. D
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 E
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 F
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 G
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 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
H
558 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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
B
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 Singh@ Sweety
have also been referred.
C
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
D
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
E
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
F 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
G
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
H
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 559
KUMAR SINGH [DINESH MAHESHWARI, J.]
High Court as being a possible view of the matter, particularly in regard A
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 B
of the motorcar namely, Prabir Kumar De and Pamela Goswami, hatched
the conspiracy to have them implicated in an NDPS Act case and in
pursuance thereof, got the contraband procured through the co-accused
Amrita Singh@ Sweety after making payment for the same; got the
contraband planted in the said motorcar through the other co-accused
C
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. D
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 E
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 F
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 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 G
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?
H
560 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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
B
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
C 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-matter of this appeal, we do not propose to enter into this
D
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
E 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
F 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
G 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
H
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 561
KUMAR SINGH [DINESH MAHESHWARI, J.]
direction. The said vehicle was detained with the help of other A
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
car bearing no. WB06P0233. One male person sited at driver sit
B
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 C
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 D
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 E
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….” F
(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
G
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, H
562 SUPREME COURT REPORTS [2022] 14 S.C.R.
A as placed before us with supplementary written submissions, their
incompatibility and contradiction strikingly come to the fore. According
to the said statements, a few 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
B
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
C 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,
D 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
E 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 be disbelieved, for being squarely contrary to the initial case of the
prosecution, as stated in the written complaint.
F 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
G 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
H in this case. That being the position; and there being otherwise no recovery
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 563
KUMAR SINGH [DINESH MAHESHWARI, J.]
from the respondent and the quantity in question being also intermediate A
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 B
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
High Court, that diametrically opposite case in the charge-sheet than
C
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 D
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
E
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
F
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 G
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
H
564 SUPREME COURT REPORTS [2022] 14 S.C.R.
A 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.
B
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
C 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
D 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 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
E 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
F 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.
G 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
H the final view to be taken by the Trial Court after the trial because, the
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH 565
KUMAR SINGH [DINESH MAHESHWARI, J.]
observations herein are only of prima facie view and that too, so far A
relevant for the purpose of the question of grant of bail to the
respondent.
21. Accordingly, and in view of the above, this appeal fails and is
dismissed subject to the observations foregoing.
B
Bibhuti Bhushan Bose Appeal dismissed.
(Assisted by : Preetam Bharti, LCRA)
C
D
E
F
G
H
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