HIGH COURT OF TRIPURA AGARTALA B.A.No.22 of 2025 Purushottam Kumar Mahto, son of Late Saryuig Mahto of Chitrasenpur, P.S. & P.O. Sonpur, District-Saran, Bihar, India ---- Petitioner on behalf of the accused in Custody Sri Suraj Kumar, Son of Bacchu Mahto Of Nandni, Ward No.08, Sivai Singhpur, Samastipur, P.S. & P.O. Mahiuddin Nagar, Pin-848502, District-Samastipur, Bihar, India ---- Accused person in Custody Versus The State of Tripura ----Respondent(s) [--- ______________________________________________________ For Applicant(s) : Mr. Subrata Sarkar, Sr. Adv. Mr. K.D. Singha, Adv. Ms. P. Chakraborty, Adv. For Respondent(s) : Mr. Raju Datta, P.P. _________________________________________________________ HON’BLE MR. JUSTICE BISWAJIT PALIT Order 25/04/2025 Learned Senior counsel, Mr. S. Sarkar assisted by Mr. K.D. Singha and Ms. P. Chakraborty appearing on behalf of the accused in custody. Learned P.P., Mr. R. Datta is present on behalf of the State-respondent. We have received the record from the Learned Court below. Learned P.P. also has produced the case diary. [2] Taking part in the hearing, Mr. S. Sarkar, Learned senior counsel appearing on behalf of the accused in custody drawn the attention of the Court that in this case rigor of Section 37 would not apply as because the seized alamats were of intermediate quantity i.e. more than small quantity but less than commercial quantity and as such, the accused deserves to be released on bail in any condition. He further submitted that in this case charge-sheet is (2) submitted within time and the accused in languishing in jail since last 21.01.2025 and further submitted that there is no other previous record of committing any offence of similar nature by the accused in custody. So, he urged for releasing the accused on bail in any condition and referred two citations in support of his contention of Hon’ble High Court of Kerela and also the Hon’ble High Court of Bombay. Referring the said citations he further submitted that in the both the aforesaid citations it was the observation of the Hon’ble High Court that ‘bail is the rule and the jail is the exception’ ensuring fair trial rights under Article 21. [3] On the other hand, Learned P.P., Mr. R. Datta appearing on behalf of the State-respondent submitted that admittedly in this case the contraband items is of intermediate quantity but in this case, charge-sheet was submitted within time and as such, the accused is not entitled to get the benefit of default bail. Furthermore, since the accused is the inhabitant of Bihar, so, at this stage, if he is released on bail than the entire trial would be vitiated as he may abscond rather Learned P.P. submitted before the Court to give a direction to the Learned Special Judge to complete the process of trial within a short span of time for the sake of justice. Considered. [4] In this case, the prosecution was set into motion on the basis of an FIR laid by one SI(GD)N.C. Karmakar for and on behalf of 108 Bn. BSF to O/c R.K.Pur PS, Maharanichera, Udaipur alleging inter alia that the accused is in custody on and from 21.01.2025. On 20.01.2025 an Anti-Human Trafficking Unit (AHTU) of 108 Bn BSF consisting of the informant and some other staff were detailed for monitoring/curbing illegal movement of migrants, Rohingyas and Bangladeshi Nationals at Railway Station Udaipur w.e.f. 0730 hrs. vide 108 Bn. BSF GD reference No.290 dated 20.01.2025. At about 1900 hrs. on arrival of Kanchanganja Express (Train No.13173) from Agartala, Const(GD) Abhay Singh observed the suspicious movement of a person carrying a black coloured Skybags. After de-boarding he was moving on platform No.1 towards Agartala (3) side inspite of exit gate and seems to be trying to escape. Thereafter, the informant and Constable Abhay Singh stopped and enquired from that person about his belongings. He replied without hesitating that he is carrying ‘Hemp’(Ganja) in his bag. Being asked he further stated that it is approximately 8 kg in weight. On further inquiry he told that he travelled from Patna to kishanganj in local passenger train and onwards to Udaipur in Kanchanganja Express. Meanwhile, he had taken over the consignment of ‘Hemp’ (Ganja) from Agartala Railway Station from a person named Bishnu and for that, his father make part payment of Rs.20,000/- through phone pay to the concerned person. He detained the suspected person. Finally, 8 kg. Ganja in four packets of 2 kg each, one Bag(Black colour) were seized and accordingly, the informant laid the FIR. On receipt of FIR R.K.Pur P.S. Case No.12/2025 under Section 20 under Section 20(b)(ii)(B) and Section 29 of NDPS Act was registered. He was produced before the Court under arrest on 21.01.2025 and since then he is lodging in custody. By this time, Learned Special Judge vide order dated 03.04.2025 has framed charge against the accused punishable under Section 20(b)(ii)(B) of NDPS Act and the case is posted for examination of PWS w.e.f.22.04.2025 to 25.04.2025. [5] I have heard both the sides at length and perused the record of the Learned Court below including the Case Diary. I have also perused the citations referred by Learned Senior counsel. In Prabhas Mandal versus State of Kerela the Hon’ble High Court of Kerela in 2025 Supreme(Online)(KER)4380 in para Nos.6 to 10 observed as under : “6. This Court considered the contention of the petitioner and the Public Prosecutor. Admittedly, the contraband seized from the petitioner is intermediate quantity. The offence alleged is under Section 20(b)(ii)B of NDPS Act. In such circumstances, the rigor under Section 37 of the NDPS Act is not applicable. No criminal antecedents are alleged against the petitioner. Petitioner is in custody from 15.11.2024 onwards. Considering the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions. But I make it clear that, if the petitioner is involved in similar (4) offence in future, the Investigating Officer is free to file appropriate application before the Jurisdictional Court for cancellation of bail, and if such an application is filed, the Jurisdictional Court is free to pass appropriate orders in accordance with law, even though this order is passed by this Court. 7. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement [2019 (16) SCALE 870], after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 8. Moreover, in Jalaluddin Khan v. Union of India [2024 KHC 6431], the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) 9. In Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426], also the Hon'ble Supreme Court observed that: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well – settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of (5) bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".” 10. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall cooperate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 5. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions.” Further, the Hon’ble High Court of Bombay in a bail application No.4125 of 2023 namely Dinesh Bhausaheb Patole versus State of Maharashtra in para No.3(operative portion) further observed as under : “(a) The application is allowed. (b) The applicant-Dinesh Bhausaheb Patole in connection with C.R. No.493 of 2023 registered with Ambad police station shall be released on bail on his furnishing P.R. Bond of Rs.50,000/- with one or more sureties in the like amount. (c) The applicant shall attend the investigating officer of Ambad police station once in a month on (6) first Monday of every month between 11.00 a.m. and 1.00 p.m. (d) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence. (e) On being released on bail, the applicant shall furnish his contact number and residential address to the investigating officer and shall keep him updated, in case there is any change. (f) The applicant shall attend the trial regularly. The applicant shall co-operate with the trial Court and shall not seek unnecessary adjournments. (g) The applicant shall surrender his passport to the investigating officer. If the applicant does not have passport, he shall file the affidavit to that effect. (h) The applicant shall not leave the country without permission of the trial Court.” From the aforesaid citations it appears that in both the cases bail was granted to the accused in course of investigation. But here in the case at hand the IO on completion of investigation laid charge-sheet before the jurisdictional Special Judge within time and accordingly cognizance of offence was taken. Before the Learned Special Judge successive bail applications were filed by the accused but Learned Special Judge rejected the bail applications on the ground of contraband items are of intermediate quantity. [6] Admittedly, in this case, rigor of provision of Section 37 would not attract. There is no record from the side of the prosecution that the present accused was/is involved in similar nature of any other offence in any other Court or in any other P.S. [7] So, considering the period of detention in custody and relying upon the principles of law laid down by the Hon’ble High Court of Kerela and the High Court of Maharashtra I am inclined to consider the bail application of the accused Suraj Kumar of his execution of bond of Rs.1,00,000/-(one lakh) with one surety of like amount who must be a public servant with condition (7) that he shall attend the Court of Special Judge once in a week till conclusion of trial and he shall not leave the jurisdiction of the Learned Special Judge without prior permission of the Court id to remain in JC as before. However, it is made clear that if it is found that the present accused in custody is involved in similar other offence, the IO shall be at liberty to file appropriate application before the jurisdictional Court for cancellation of his bail inspite of granting bail by this Court today. Send down the LCR along with a copy of this order. Return back the CD to IO through Learned P.P. along with a copy of this order. Also a copy of this order be supplied to Learned senior counsel, Mr. S. Sarkar for the accused in custody. With this observation, the bail application stands disposed of. JUDGE Sabyasachi B SABYASACHI BHATTACHAR JEE Digitally signed by SABYASACHI BHATTACHARJEE Date: 2025.04.26 07:46:58 +05'30'