The Calcutta High Court recently has held that failure on part of the Investigating Officer in retrieving the call details should not be taken as a ground for granting bail to the accused.
A Division Bench of Justice Harish Tandon and Justice Bibek Chaudhuri held this observation while rejecting bail applications moved by four applicants of three distinct cases, similar questions of law being involved in both the cases and hence, taken up together by the Court.
In Case of Asim Mridha, C.R.M 3754 of 2021:
The petitioner was arrested by the officers attached to the Narcotics Control Bureau (NCB) in connection with case no N53/2021 on the basis of a complaint to the effect that on 7th April, 2021, NCB, Kolkata Zonal Unit received an information that one Susanta Dey @ Ravi and one Manik Das were carrying ganja above commercial quality by a vehicle bearing no. WB 25J- 4944. The said contraband articles would be stored in the house of Susanta in order finally to deliver the same to the petitioner.
The NCB personnel under the Leadership of the Superintendent, NCB, KZU conducted raid in order to work out the said information and apprehended two persons, namely, Susanta Das @ Ravi and Swapan Biswas (driver) who were engaged in unloading sacks full of contraband and storing them in the house of Swapan. They conducted search and seizure in respect of the contraband articles in presence of independent witnesses and arrested the abovenamed two accused persons. Subsequently, the house of Manik Das was raided but no contraband article was recovered.
A notice under Section 67 of the NDPS Act was served upon the petitioner. His house was searched but no incriminating article was found from his house. However, he was arrested only on the basis of the statement of the co-accused which is inadmissible in evidence.
Calls between petitioner and accused not retrieved by IO: Calcutta HC
“It is true that the calls between the petitioner and the principal accused were not retrieved by the Investigating Officer. Therefore, the nature of conversation between them cannot be ascertained,” noted the Calcutta High Court.
The Court placed reliance upon Union of India through Narcotics Control Bureau, Lucknow vs Md Nawaz Khan (Criminal Appeal No.1043 of 2021 arising out of SLP (Crl) No.1771 of 2021) to support their judgement, whereby the apex court had held that CDR analysis of the said mobile number used by the respondent indicated that the respondent was in regular touch with the other accused persons who were known to him. In this case also, it is prima facie established from the call details report (CDR) that the petitioner was in constant touch with the principal accused person.
Call details record one of prima facie ground to establish offence under NDPS Act: Calcutta HC
The court stated it is prima facie established from the call details report (CDR) that the petitioner was in constant touch with the principal accused person and even if the statement recorded under Section 67 of the NDPS Act is not admissible in evidence, call details report is one of the prima facie grounds on petitioner’s involvement in the offence under Section 20(B)(2)(C)/29 of the NDPS Act.
In Case of Manotosh Ghosh, C.R.M 1761 of 2021:
Accused Monotosh Ghosh was arrested on 24th May, 2020 while possessing codeine mixture above commercial quantity by the Police attached to Habra P.S. The contraband articles were seized by S.I Pratik Basu observing all formalities. Subsequently, investigation culminated in filing charge-sheet under Section 21(b)(ii)(c) of the Narcotics Drugs and Psychotropic Substance Act, 1985 (NDPS Act for short).
It was alleged by the petitioner that she he was falsely implicated in this case. The case record reveals that the arresting officer didnot follow mandatory provisions of search and seizure of narcotics substance as per the provisions of the NDPS Act (Section 42).
Order:
The Court held that the contention that Section 42 of the NDPS Act was not complied with his prima facie misplaced in view of the considered decision of the Supreme Court in case of Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan, “the accused was arrested with codeine mixture above commercial quantity on May 25, 2020 on that date itself the sample was taken in presence of the Chief Judicial Magistrate, Barasat for scientific examination. Moreover, the accused was arrested from Jaygachi Bus Stand and compliance of Section 42 of the NDPS Act is not at all necessary,” the court said.
In Case of Soham Kumar Yadav, C.R.M 3207 of 2021:
The petitioners were apprehended by Police at village Akchhar within Gangarampur Police Station, while they were trying to flee away riding on a motorcycle. The on-duty Police Officer conducted search and found 650 Yuba tablets from their possession.
Since no Executive Magistrate was available at the time of search and seizure, IC Gangarampur PS was requested to be present at the time of search and seizure of contraband articles. According to the petitioner, nothing was seized from them. They are cloth merchants. The charge sheet has been submitted against them. The investigating authority did not comply with the mandatory requirement of search and seizure contained in Section 42 of the NDPS Act.
Decision
“On the same reason, we do not find any merit in CRM 3207 of 2021. (C.R.M 1761 of 2021),” said the Calcutta High Court.
Read the order here:
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