Bail or Jail; High Court of Tripura Grapples With Drug Menace

The Article first appeared on April 29, 2019

Tripura, a small 10,039 sq km state, is encircled on three sides by Bangladesh and is three hours by train from its capital Dhaka and main port city Chittagong. An increase in drug/substance abuse has been noted in this small state. It is seen that hard drugs are being smuggled into the state from Bangladesh and Burma. Indian made cough syrup is peddled in Bangladesh while the Burmese Ya ba tablets come to Tripura.

Ya ba is an amphetamine, and the tablets are mostly manufactured in Myanmar. Ya ba tablets typically are consumed orally. Users also heat tablets and inhale the vapours (also called ‘chasing the dragon’). These hard drugs are lethal and addictive. Drug mafia/dealers are equipped with hard drugs, other contraband and are connected to their counterparts in the neighboring countries.

Recently the High Court of Tripura in “Haricharan Versus State of Tripura”, while grappling with this serious problem of drug abuse in the State, passed an important order in a case allegedly involving drug mafia, dealing in huge commercial quantities of contraband. The Court took a serious view of the failure of ‘the investigating agencies’ and also of the ‘lower judiciary’ of the State for disregarding the settled law w.r.t bails. The order gives elaborate interpretation and explanation of the sections of the criminal procedure code and of the NDPS Act 1985. The order further explains the concept of default bail and when the default bail principles, can and cannot, be invoked.

Facts

On 29th September 2018, based on a piece of secret information, police conducted search and seizure operations and from the dwelling house of accused recovered commercial quantities i.e 289 Kgs. of dry ganja, concealed in different drums.

Further investigation revealed that arrested persons were carrying on the illegal activity of the commercial sale of the contraband substance in an organized manner and operations had been going on for over a considerable period of time.

Under instructions from the DGP, a statement with regard to the status of the cases under the provision of the NDPS Act and release of the accused persons (of 2018) was called for and furnished to the Hon’ble Court.

The police told the Hon’ble Court in a statement that a total of 433 cases were registered in 2018 and cases were pending beyond 90 days in 278 of them. A total of 65,364 kilograms of cannabis, 3096 grams of heroin and 1, 88, 099 bottles of cough syrup were seized, the police added.

After going through this report, Hon’ble J. Karol speaking for the court, was shocked and expressed his concern:

“A shocking state of affairs with regard to the manner in which investigation is being carried out by the agencies. Also, it reveals that out of 660 persons arrested in connection with the crime relating to psychotropic substance, 435 persons stand enlarged on bail.

“What are the reasons for grant of bail; is it what is commonly termed as a default bail; is it that the Public Prosecutor conceded to the grant of bail; is it that the Public Prosecutors did not oppose the same; is it that the Courts have passed the orders without following the settled principles of law; or is it that innocent stand falsely implicated. If so, then why no action, in accordance with the law, stands taken against the erring persons by the authorities.”

The Court noted that prevalent situation, was extremely alarming, with regard to production, trafficking and use of contraband substance within the State of Tripura. The Court lamented that even after the alarming state of affairs, day in and day out the question of grant of bail under the provisions of the Act was arising for consideration and that too, despite the law being fully settled.

The lower Courts in the state while dealing with the bail applications were passing orders dehors to the settled principles of law. Specifically, Section 37 of the Act, which imposes a restriction on the right of the accused to seek bail was not being correctly interpreted and applied.

The Court also observed that,

“What is shocking is that in none of the orders, be it a grant of ad-interim bail or extension thereof, did the Court ever consider the factors relevant for grant of bail as envisaged under the Act. It does not even refer to the provisions of Section 37 of the Act, much less record its satisfaction with regard thereto. In fact, even the basic ingredients for deciding the application of bail, any which way, were referred to or discussed. In a most cryptic and unseasoned manner, orders rejecting/granting bail stands passed or extended from time to time.”

Can an illness of a mother or a child in a case of this nature, alone, be a ground for grant of bail? Certainly not.

Hon’ble J. Karol went on painstakingly to elaborate on different principles of law that got attracted in the case, for example, the Court stated:

“Liberty is a greatly cherished value in the life of an individual, however, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti-collective act.”

It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.

The Hon’ble Justice further held:

“The amplitude of the power of the Constitutional Court be it under the Constitution or the statute (Cr.P.C) is wide enough to correct any illegality, either on the asking of the State or on its own motion. Even the Court cannot be unmindful of the fact that such power is being exercised in a case where allegedly the accused is involved in dealing with a huge quantity of contraband substance. Under all circumstances, the Court has to strike a balance vis-a-vis the liberty of an individual and the societal rights.”

The Court also gave a difference between default bail and the provisions under Sec. 37. of the Act. In Special cases, covered by section 37 which deals with instances of huge commercial quantities or bringing drugs in the country from foreign jurisdictions, etc, the principle is:

“Negation of bail is rule and its grant an exception”.

It is settled law, as laid down by the Apex court, that when bail has to be granted in cases where the offense have happened under section 37 of the NDPS Act 1985 then the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that;

The accused is not guilty of the offenses with which he is charged and
That he is not likely to commit any offense while on bail.

At the time of considering an application for bail, the Court must take into account certain factors such as

The existence of a prima facie case against the accused,
The gravity of the allegations, position, and status of the accused,
The likelihood of the accused fleeing from justice and repeating the offense.
The possibility of tampering with the witnesses and obstructing the Courts
The criminal antecedents of the accused.

After going through various Apex court decisions with respect to the law regarding Bails, Menace of Drugs, Non-Compliance of Mandatory Provisions of The Act, , Principles of Liberty and also after noting the failures of the investigating agencies and of the Courts below, which had granted bail to the accused on the ground that “his mother was ailing and that he has a young daughter”, the Court ultimately found that the orders of granting ad-interim bail did not fulfil “the twin test” laid down by the Supreme Court (Supra) nor was it in accordance with the law and hence deserved to be quashed.

However, the Court also noted that this does not mean that in every case registered under the NDPS Act, the learned Public Prosecutor must necessarily oppose the bail. The above-mentioned case was a special case of a ‘drug mafia’, dealing in huge commercial quantities of contraband, certainly, they can’t be equated with the small-time offenders. It goes without saying that when Section 37 is not attracted then provisions of criminal Procedure Court will apply, here the principle that prevails is: