# STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH KUMAR SINGH

- **Citation:** [2022] 14 S.C.R. 538
- **Court:** Supreme Court of India
- **Decided:** 2022-07-11
- **Case number:** Criminal Appeal No. 923 of 2022
- **Bench:** Dinesh Maheshwari, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-west-bengal-v-rakesh-singh-rakesh-kumar-singh-35742
- **Pages:** 28

## Headnote

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,
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 -
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
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
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
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
rigours of s.37 do not apply to the present case - The past history
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[2022] 14 S.C.R. 538
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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 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
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
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
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
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 coaccused purportedly carried out the alleged clandestine? deals
with exchange of contraband and the currency? [Para 14.1][559F-H]
2.1. According to the prosecution, the FIR in question for
offences under Sections 21(b) and 29 NDPS Act came to be
regi

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SUPREME COURT REPORTS
[2022] 14 S.C.R.
STATE OF WEST BENGAL
v.
RAKESH SINGH @ RAKESH KUMAR SINGH
(Criminal Appeal No. 923 of 2022)
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,
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 -
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
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
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
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
rigours of s.37 do not apply to the present case - The past history
538
[2022] 14 S.C.R. 538
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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 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
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
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
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
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 coaccused purportedly carried out the alleged clandestine? deals
with exchange of contraband and the currency? [Para 14.1][559F-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.
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]
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH
KUMAR SINGH
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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/
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
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
and doing something on the floor of the car! The story, as sought
to be suggested in these statements, contradicts the fundamental
facts stated in the initial complaint that the search and raiding
team persons had in fact stopped and detained the moving
vehicle; and that the occupants of motorcar pointed towards the
specific places in the vehicle where the contraband items were
concealed. [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
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
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
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contrary to the initial case of the prosecution, as stated in the
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
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;
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
in relation to the processes concerning the present case give
rise to a few questions but, the strong countervailing factor in
the present case is the prima facie indication that he is being
sought to be framed by concoctions and baseless stories. Another
factor noticeable is that the respondent has not been involved in
any NDPS Act case or any akin offence in the past. It is noticed
from the material placed on record that nothing of any contraband
article has been recovered from the respondent or from any place
under his exclusive control. This factor further adds on to the
doubt as to whether the respondent had at all been indulgent in
narcotics or any contraband? That being the position, the view
as taken by the High Court cannot be said to be an altogether
unacceptable or impossible view of the matter. Moreover, it
cannot be said that the respondent was consciously seeking to
abscond on 23.02.2021 merely because he was found in the night
at Purba Bardhaman and not at Kolkata. In any case, the aspect
relating to tendency to flee has been duly taken care of with the
conditions as imposed by the High Court. 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
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH
KUMAR SINGH
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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]
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
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
v. Rakesh Kumar Singh (2015) SCC OnLine Cal 1338
- referred to.
Case Law Reference
[2020] 3 SCR 348
referred to
Para 8.2
[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.
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.
Vivek Narayan Sharma, Ms. Mahima Bhardwaj, Nikhil Jaiswal,
Ajay Singh, Sudhanshu Khandelwal, Shubham Awasthi, Advs. for the
Respondent.
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The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
 Leave granted.
2. This appeal by the State of West Bengal is directed against the
order dated 24.11.2021, as passed by the Division Bench of Calcutta
High Court in CRM No. 3152 of 2021, whereby the respondent, an
accused of the offences under Sections 21(b)/29/27A of the Narcotic
Drugs and Psychotropic Substances Act, 19851, has been ordered to be
enlarged on bail with certain additional conditions, apart from bail bonds
and sureties.
3. Though, the validity of the order granting bail is in question in
this appeal and final determination of all the contentious issues is not
called 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.
4. The matter in issue in this appeal has its genesis in FIR No. 65
of 2021 dated 19.02.2021, registered at New Alipore Police Station,
Kolkata, initially in respect of offences under Sections 21(b)/29 NDPS
Act; after recovery of 76 grams of cocaine from a motorcar bearing
registration No. WB06P/0233 with three occupants, namely, Somnath
Chattopadhyay (security guard), Prabir Kumar De and Pamela Goswami.
However, on 23.02.2021, the respondent Rakesh Singh @ Rakesh Kumar
Singh was arrested in this matter with the accusations essentially
pertaining to the offence under Section 27A of the NDPS Act, i.e.,
financing illicit trafficking in contrabands and harbouring offenders; and
with the allegations that he got the contraband procured and then got it
planted in the vehicle occupied by the aforesaid three persons.
5. It is the accusations concerning the respondent which forms
the core of the subject-matter of this appeal. Thus, we may take note of
the salient features of the prosecution case against the respondent as
follows:
5.1. As per the prosecution, the respondent had hatched a criminal
conspiracy with the other charged co-accused persons for falsely
implicating the said Prabir Kumar De and Pamela Goswami of offences
under the NDPS Act out of personal grudge. It is alleged that in order to
1 Hereinafter also referred to as 'the NDPS Act'.
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KUMAR SINGH
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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
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
political leader at New Alipore area on 19.02.2021 in relation with the
ensuing Legislative Assembly elections; and the said Amrit Raj Singh
went to the house of the respondent on 18.02.2021 and was also seen
using the vehicle of the respondent.
5.3. It has further been alleged that on 19.02.2021, the said Prabir
Kumar De and Pamela Goswami, accompanied by their security guard
Somnath Chattopadhyay, picked up Amrit Raj Singh in their vehicle and
proceeded for the meeting scheduled at New Alipore area. Upon reaching
the place of occurrence, Amrit Raj Singh, on the pretext of changing his
clothes, stayed in the vehicle while Prabir Kumar De, Pamela Goswami,
and Somnath Chattopadhyay got off. Taking advantage of the
circumstances, Amrit Raj Singh concealed cocaine in different parts of
the vehicle and made a call to the respondent over a phone number,
which stood in the name of one Jitendra Kumar Singh. Thereafter, Amrit
Raj Singh fled on a scooty, as instructed by the respondent and then,
took shelter at the respondent's residence.
5.4. As regards recovery and seizure of contraband, it has been
alleged that on 19.02.2021, based on credible source information, a team
of officers was constituted at New Alipore Police Station; and this team
detained the said vehicle bearing Registration No. WB-06 P/0233, seized
76 grams of cocaine from the vehicle, and arrested the said three persons,
who were present in the vehicle. Based on this recovery and seizure, a
written complaint dated 19.02.2021 was submitted to the Officer InCharge of New Alipore Police Station, Kolkata by Somnath Sarkar, SI
and thereupon, the said FIR No. 65 of 2021 for offences under Sections
21(b) and 29 NDPS Act was registered. Some of the contents of this
written complaint leading to the FIR in question shall have their own
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bearing on the contentions urged in this matter. The same shall be
adverted to at the appropriate juncture hereafter later.
5.5. According to the prosecution, on 20.02.2021, the said Amrit
Raj Singh was seen leaving the house of the respondent. Further on
22.02.2021, considering the nature and gravity of crime, the investigation
of the matter was taken over by the Detective Department, Lalbazar,
Kolkata and the Joint Commissioner of Police, Crime, Kolkata formed
the Special Investigation Team2 under Memo No. CI/47/9/21.
5.6. It has further been pointed out that a notice under Section
160 of the Code of Criminal Procedure, 19733 read with Section 67
NDPS Act was issued to the respondent by the investigating agency
requesting his appearance before the Investigating Officer at Narcotic
Cell, 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.
5.7. It has yet further been alleged that the respondent failed to
appear in response to the notice aforesaid and, therefore, the police
went to search his residence at 12A Orphangunj Road, PS Watgunge,
Kolkata-23 but the police personnel faced obstructions from CISF
personnel, who blocked their entry into the respondent's residence at
the instructions of the respondent's sons. It is the case of prosecution
that the respondent could not be located at his residence; and one harddisk consisting of CCTV footage was seized from his house but, upon
forensic examination, it was found that the data had been deleted
therefrom. It is, however, pointed out that the respondent was detained
and arrested at Galsi PS, Purba Bardhaman in the State of West Bengal
at 11:29 p.m. on 23.02.2021.
5.8. As regards the aforesaid allegations concerning the events of
18.02.2021 and 19.02.2021, the prosecution has referred to the call record
details of the conversation between the respondent and the said Amrit
Raj Singh as also the CCTV footage recorded on the respondent's
neighbourhood as also at other place of fleeing of Amrit Raj Singh. The
statement of one Sanjay Singh is also referred in relation to the fact of
the said co-accused Amrit Raj Singh leaving the house of the respondent.
2 'SIT', for short.
3 'CrPC', for short.
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH
KUMAR SINGH [DINESH MAHESHWARI, J.]
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5.9. The prosecution has further referred to the statement of one
witness Md. Nasir Khan recorded on 27.02.2021 under Section 161
CrPC wherein he had stated that on 10.02.2021, the respondent handed
over one bundle of 2000 rupees notes to the said co-accused Amrita
Singh @ Sweety and the said co-accused handed over 7/8 small packets
to the respondent. The prosecution has also referred to the statement of
another witness Nishat Alam @ Ruman Khan recorded under Section
161 CrPC on 28.02.2021 in corroboration of the statement of Md. Nasir
Khan, concerning the financing and procurement of cocaine. Yet further,
the statements of these two witnesses recorded on 30.03.2021 under
Section 164 CrPC have also been referred to. It has also been alleged
that on 27.02.2021, the respondent refused to follow the norms of Central
Lock-up, Lalbazar and on being requested by the security personnel to
follow the norms, he threatened them with dire consequences; and that
on 09.03.2021, the respondent, on being produced before the NDPS
Court, manhandled the OC, Narcotic Cell by abusing and threatening
him which resulted in Hare Street PS Case No. 69 dated 10.03.2021 for
offences under Sections 353/506 of the Indian Penal Code, 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
that the allegations against the aforesaid three occupants of motorcar
were not established in investigation. As per the facts projected before
us, prayer of the prosecution for discharge of the said three occupants
of motorcar is pending consideration before the Trial Court.
7. Having been arrested in connection with this case, the
respondent moved an application seeking bail before the Trial Court.
The application so moved by the respondent was considered and rejected
by the learned Judge, Special Court under NDPS Act cum 4th ASJ,
Alipore, South 24 Parganas on 12.03.2021. Thereafter, the respondent
approached the High Court in the said CRM No .3152 of 2021 that has
been considered and allowed by the High Court by way of impugned
order dated 24.11.2021. In the passing, we may take note of the fact
that for the said bail application having remained pending for long, the
respondent approached this Court by filing SLP(Crl.) No. 7282 of 2021,
which was decided on 24.09.2021. This Court, of course, declined to
4 'IPC', for short.
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issue any direction as such but, took note of the fact that the prayer for
bail was pending since 07.04.2021 and permitted the present respondent
to make a prayer for expeditious consideration before the High Court
while expressing hope and trust that such a prayer would be given due
consideration. As per the record, the High Court, thereafter, heard
detailed arguments on the bail application on 07.10.2021 and pronounced
the impugned order on 24.11.2021.
8. Having taken note of the background aspects, it would now be
worthwhile to take into comprehension the relevant features of the
impugned order, whereby the High Court granted the prayer for bail,
albeit on a few extra conditions.
8.1. It was contended before the High Court on behalf of the
accused-respondent that 76 grams of cocaine was recovered from the
possession of the said occupants of the motorcar and there was no
recovery of contraband from his possession; that he was sought to be
implicated on the basis of statements made by the aforesaid three persons
who are co-accused and their statements were not admissible in evidence;
that rigours of Section 37 NDPS Act were not applicable in the case
because intermediate quantity of contraband was involved; that the initial
prosecution case and the case in the charge-sheet were diametrically
opposite inasmuch as initially, the said three persons were apprehended
on source information when they pointed out as to where in the car the
contraband was concealed but, in the charge-sheet, it was alleged that
the respondent got planted the contraband in the car as an act of revenge;
that there was no material on record even to prima facie support the
charge of financing illicit trafficking and harbouring offenders so as to
bring the case within four-corners of Section 27A NDPS Act; that Section
42 NDPS Act had not been complied with; that even though several
criminal cases were pending against the respondent, but none of them
was under the provisions of the NDPS Act and in only one case was he
convicted and sentenced to one year imprisonment for entering into scuffle
with a police officer in the Court premises but, the sentence was
subsequently suspended by the Appellate Court; and that respondent
had been framed in this politically motivated case after he had renounced
the membership of one political party and joined a rival political party.
8.2. On the other hand, it was contended on behalf of the State by
the learned Advocate General that the provisions of the NDPS Act should
be strictly enforced to curb the menace of drug trafficking, which has a
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH
KUMAR SINGH [DINESH MAHESHWARI, J.]
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highly damaging effect on the society at large; that the accusedrespondent was the kingpin of a drug racket who would neither come in
the fore-front nor indulge in any overt act but, would be pulling the strings
from behind the curtain; that there was sufficient material to support the
charge under Section 27A NDPS Act and hence, the restrictions of
Section 37 NDPS Act were attracted; that the complicity and involvement
of the accused-respondent as the head of a drug peddling racket was
duly established by the statements of various other witnesses other than
the said three car-occupants, which include the statements of Md. Nasir
Khan and Nishat Alam @ Ruman Khan recorded under Section 164
CrPC; that on 23.02.2021, the respondent had tried to escape to Patna;
that the accused-respondent was a history-sheeter with 53 criminal cases
against him and his bail was earlier cancelled when he threatened the
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 accusedrespondent was an influential person and was likely to tamper with
evidence and threaten prosecution witnesses, if released on bail; that
whether or not there was compliance with Section 42 NDPS Act was a
question to be raised in the course of trial and not at the stage of hearing
of a bail application as held by this Court in the case of Union of India
through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan:
2021 SCC OnLine SC 782; and that resistance of the respondent to
the attempt of the investigating agency to collect his voice sample points
towards his guilt. The learned Advocate General also relied upon the
decision of this Court in the case of State of Kerala & Ors. v. Rajesh
& Ors: (2020) 12 SCC 122 as regards operation of the rigours of
Section 37 NDPS Act.
8.3. After having considered the rival submissions, the High Court
formed the opinion that the restriction of Section 37 NDPS Act would
not apply to this case and the respondent, who was in custody since
23.02.2021, qualified for grant of bail with stringent conditions.
Accordingly, the High Court ordered release of the accused-respondent
on bail with heightened conditions like: (a) he would furnish a bond in the
sum of rupees one lakh with four sureties of rupees fifty thousand each,
two of whom must be local persons; (b) he shall report to the Officer-inCharge of the concerned police station once in a week; (c) he would not
travel outside the State of West Bengal without prior leave of the Trial
Court; and (d) he would surrender his passport before the Trial Court
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immediately. Having regard to the submissions made in this case, we
may take note of the relevant part of the discussion and reasoning of the
High Court as under: -
"4. We have considered the rival contentions of the parties. We
have also perused the material in the memo of evidence filed on
behalf of the State.
5. Certain things are clear. Firstly, there was no recovery of
contraband items from the physical possession of the petitioner.
Nothing was recovered from the person of the petitioner or any
place over which the petitioner had exclusive control. We are
conscious that mere non-recovery of contraband from a person's
possession may not per se dilute the rigours of Section 37 of the
NDPS Act.
6. However, even assuming that the petitioner had dominion or
control over the contraband in question, admittedly intermediate
quantity (76 gms) of cocaine was seized. It was urged on behalf
of the State that the statements of witnesses would indicate that
the petitioner was a regular purchaser of contraband items.
However, the fact remains that in the present case only 76 gms of
cocaine is involved. As observed by the Hon'ble Apex Court in
the case of Sami Ullaha (Supra), where intermediate quantity
of narcotics is involved, it may not be justified to apply the rigours
of the provisions of Section 37 of the NDPS Act relating to grant
of bail.
7. Thirdly, the seizure of the Cocaine was from Prabir, Somnath
and Pamela as would appear from the seizure list. The First
Information Report dated February 19, 2021 also names those
three persons as the accused. They have however not been named
in the charge sheet. The prosecution case has changed completely
from what it was at the time of filing of the FIR. The story in the
charge sheet is completely different. While the case of the
prosecution initially was that recovery of the contraband item was
made from Prabir, Somnath and Pamela who were intercepted in
the Motor Car, the story in the charge sheet is that the petitioner
planted the contraband item in the Motor Car in which those three
persons were travelling to put them in trouble to take revenge for
some personal enmity. Prima facie, this raises considerable doubt
in our mind as regards the veracity of the prosecution case.
STATE OF WEST BENGAL v. RAKESH SINGH @ RAKESH
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8. Fourthly, in so far as the offence under Section 27A of the
NDPS Act is concerned, i.e. financing illicit trafficking and
harbouring offenders, prima facie we do not find material evidence
to support that charge. In our view, being involved in one solitary
transaction concerning contraband items will not amount to
financing illicit traffic in narcotics. The word "trafficking" connotes
continuous flow. There has to be some degree of continuity and
regularity in drug dealing before a person can be said to be
trafficking in drugs. Similarly, financing illicit traffic would
necessarily mean doing so on a regular or continuous basis. It is
much more than purchasing or selling contraband items on one
occasion. Such a solitary transaction would, in our prima facie
opinion, not fall within the mischief of Section 27A of the NDPS
Act. In this connection, one may refer to a decision of the Bombay
High Court rendered on October 7, 2020 in Criminal Bail
Application (Stamp) No. 2386 of 2020 (Reha Chakraborty v.
The Union of India State of Maharashtra).
9. Fifthly, we also notice that none of the 53 criminal cases pending
against the petitioner is under the provisions of the NDPS Act.
Though the petitioner has criminal antecedents, there is no history
of the petitioner dealing in narcotics in contravention of the
provisions of the NDPS Act.
10. Prima facie there is nothing to show that the petitioner has
previously violated any of the provisions of the NDPS Act.
11. As regards the State's argument that the petitioner was trying
to abscond on the night when he was arrested, prima facie, the
petitioner may be given the benefit of doubt that he was not going
to Patna for the purpose of absconding. Since there was no
restriction on his movement, merely from the fact that he was
headed towards Patna may not necessarily indicate that he was
trying to flee.
12. As regards the petitioner's reluctance to furnish voice sample,
we do not think that such refusal would be a ground for denying
bail to the petitioner when on an overall assessment of the material
on record and on consideration of the applicable law, we are of
the prima facie view that the petitioner may have a reasonably
arguable case for acquittal at the trial. Refusal of the petitioner to
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furnish voice sample, may or may not have an adverse effect on
his case at the trial, but we are not concerned with the same at
this stage.
13. We are conscious about the salutary object of the NDPS Act
and we have given due regard to the decision of the Hon'ble
Apex Court in the case of State of Kerala v. Rajesh, (Supra).
There cannot be any doubt that persons indulging in illegal
trafficking in contraband drugs and psychotropic substances must
be dealt with, with iron hands. The activities of such persons have
a widespread deleterious effect on the society at large. Countless
members of the society, often of tender age, fall prey to the heinous
and nefarious activities of drug peddlers. However, the decision
in each case must depend on the facts of the case and no principle
of law can be applied blindly to a given set of facts. In the facts of
the present case, on an assessment of the material on record, we
are of the prima facie view that the petitioner may not have
committed the offence that he is charged with. Further, considering
the past history of the petitioner which we have adverted to above,
there is nothing on record to suggest that he is likely to commit an
offence under the NDPS Act while on bail.
14. For the reasons aforestated we are of the view that the
restriction in Section 37 of the NDPS Act would not apply.
Assessing the nature and gravity of the alleged offence and the
material on record and also in view of the fact that the petitioner
has been in custody since February 23, 2021, we are of the view
that the petitioner qualifies for bail but on stringent conditions.
15. Accordingly, we direct that the petitioner, namely, Rakesh
Singh @ Rakesh Kumar Singh shall be released on bail upon
furnishing a bond of Rs. 1,00,000/-, with four sureties of Rs. 50,000/
- each, two of whom must be local, to the satisfaction of the
Learned Judge, Special Court under the NDPS Act, Alipore, South
24 Parganas, and on further condition that he shall report to the
Officer-in-Charge of the concerned police station once in a week
until further orders. The petitioner shall appear before the trial
Court on every date of hearing until further orders and shall not
intimidate the witnesses and/or tamper with evidence in any manner
whatsoever. He shall not travel outside West Bengal without the
prior leave of the Trial Court and shall surrender his passport
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before the learned Trial Court immediately. The petitioner shall
fully cooperate with the Investigating Authority in case of further
investigation, if any.
16. In the event, the petitioner fails to adhere to any of the conditions
stipulated above without justifiable cause, the trial court shall be
at liberty to cancel the petitioner's bail in accordance with law
without further reference to this court."
9. Seeking to challenge the order impugned, a wide variety of
submissions have been made by the learned senior counsel for the
appellant with the assertions that the High Court has erroneously granted
bail to the respondent in utter disregard to the facts and circumstances
of the case and the principles of law applicable thereto.
9.1. The learned senior counsel has referred to the facts and the
background aspects above-noticed and has contended that, for all the
evidence collected in investigation and presented in the charge-sheet,
clearly a case of conspiracy of financing illicit trafficking of contraband
and harbouring offender, punishable in terms of Section 27A NDPS Act
is made out against the respondent. It has been contended that the
respondent, in furtherance of conspiracy, financed the activity of procuring
cocaine to the tune of Rs. 8.5 lakhs through the co-accused Amrita
Singh @ Sweety; then, engaged another co-accused Amrit Raj Singh
who lured the said Pamela Goswami and Prabir Kumar De to meet a
political leader and on 19.02.2021, planted the contraband in their vehicle,
and after planting the contraband, informed the respondent about execution
of the work and fled from the spot to take shelter at the respondent's
residence. According to the learned counsel, it is clearly made out that
the respondent financed the activity of procuring cocaine worth Rs. 8.5
lakhs through the co-accused Amrita Singh @ Sweety and then, harboured
the offender Amrit Raj Singh; and this prosecution case against the
respondent is duly supported by the statements of the witnesses Md.
Nasir Khan and Nishat Alam @ Ruman Khan recorded under Section
161 CrPC as also under Section 164 CrPC and is further supported by
the CCTV footage before and after the incident as well as the call data
records. Learned counsel would argue that the High Court has seriously
erred in not considering the relevant facts and in holding that the
restrictions under Section 37 NDPS Act would not apply to the respondent,
while losing sight of the fact that this provision operates in addition to the
requirements of CrPC.
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9.2. The learned senior counsel has further contended that the
High Court failed to consider that mere absence of possession of
contraband does not absolve scrutiny under Section 37 NDPS Act, as
held by this Court in the case of Md. Nawaz Khan (supra). According
to the learned counsel, the High Court has proceeded on the
considerations that there was no recovery from the respondent; that the
recovery was of intermediate quantity; and that the initial case of
prosecution has changed but, the High Court has ignored the fact that
after the arrest of Pamela Goswami and Prabir Kumar De with whom
cocaine was found, the investigation revealed that all this was done in
furtherance of the conspiracy to implicate them at the instance of the
respondent.
9.3. While reasserting that a clear case under Section 27A NDPS
Act is made out, the learned senior counsel has contended that the High
Court's reference to the case of Rhea Chakraborty v. Union of India
& Anr.: 2020 SCC OnLine Bom 990 remains misplaced inasmuch
as, even in that decision, it was held by the Bombay High Court that
financing is making a particular activity operational or for sustaining it.
9.4. A learned senior counsel has also questioned the conduct of
the respondent that even after dismissal of WPA No. 5448 of 2021 on
23.02.2021, he failed to appear before the Investigating Officer at 04:00
p.m.; remained unavailable at his residence; and was finally apprehended
at Purba Bardhaman at 11:29 p.m. The learned counsel would submit,
while relying on the decision in the case of State of U.P. v. Amarmani
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
Kumar Sarkar v. Ashish Chaterjee & Anr.: (2010) 14 SCC 496, the
learned senior counsel has contended that the respondent enjoys
considerable political clout in the State of West Bengal and there remains
a reasonable apprehension that he may use his power and position to
influence the witnesses and to tamper with the evidence; and these
aspects need to be taken into consideration while considering the bail
plea of such an accused.
9.6. The learned senior counsel has further highlighted the fact
that the respondent has been involved in as many as 53 criminal cases at
different police stations in the State of West Bengal and has the history
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of threatening public servants. It has particularly been pointed out that in
the year 2015, the respondent attempted to threaten the Investigating
Officer and to snatch away the Government documents which resulted
in Hare Street PS Case No. 108 dated 19.02.2015, where he was
ultimately convicted. It has further been pointed out, with reference to
the order in the case of State of West Bengal v. Rakesh Kumar Singh:
(2015) SCC OnLine Cal 1338, that even in custody, he had threatened
the police officers. It has yet further been submitted that the respondent
refused to follow the norms of the Central Lock-up, Lalbazar and on
being requested to do so, he threatened the security personnel with dire
consequences; he also tried to assault and attempted to abscond; and
yet further, on being produced before the NDPS Court, he manhandled
the OC, Narcotic Cell by abusing and threatening him, which resulted in
Hare Street PS Case No. 69 dated 10.03.2021 for offences under
Sections 353 and 506 IPC.
10. In this matter, we had heard learned counsel for the parties on
18.05.2022.