Allowed

Tsering Rakpa Namsa v. the State of Ap

Gauhati HC1 Nov 2022AB/120/2022

Case brief

AI extract

What is this about?

The Gauhati High Court granted bail to the petitioner arrested under the NDPS Act for possession of cannabis. Considering his medical condition and the gravity of the offence, the court directed his release on bail for a limited period of two months to undergo surgery.

What did the court decide?

Petitioner released on bail of Rs. 30,000 with surety for a period of two months pending surgery.

Tsering Rakpa Namsa Vs the State of Ap — Narcotics (NDPS) | Gauhati HC (2022)

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GAHC040012532022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : AB 120/2022

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1:Tsering Rakpa Namsa S/o Shri Nima Gombu,

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A Resident of Village Boha, PO/PS Kalaktang, District West Kameng, Arunachal Pradesh.

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VERSUS

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1:THE STATE OF AP Represented by the Public Prosecutor

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Advocate for the Petitioner : T T Tara

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Advocate for the Respondent : P P of AP

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BEFORE

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HONBLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

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ORDER

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Date : 01-11-2022

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1. Heard learned counsel Mr. P.D. Nayar who has prayed for bail of the petitioner in connection with (Kalaktang) KTG P.S. Case No. 04/2022 registered under Section 20(b)(ii)(C), Section 27(a) and Section 29 of the Narcotic Drugs and Psychotropic Substances (NDPS for short) Act, 1985.

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2. Heard Mr. J. Tsering, learned P.P. for the State of Arunachal Pradesh.

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3. It is submitted that the accused had been languishing in jail in connection with

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Naharlagun P.S. Case No. 82 of 2022 under Sections 20(b)(ii)(C)/27(a)/29 of the NDPS Act for 55 days and thereafter he was released on bail. Although he was granted bail in connection with this case after 55 days, he is at present apprehending arrest in connection with (Kalaktang) KTG P.S. Case No. 4 of 2022 under Sections 20(b)(ii)(C)/27(a)/29 of the NDPS Act. It is submitted that the (Kalaktang) KTG P.S. Case No. 4 of 2022 is an offshoot of the Naharlagun P.S. Case No. 82 of 2022.

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4. The allegation in the FIR of the Naharlagun P.S. Case No. 82 of 2022 is that on a search operation conducted by the Investigating Officer in the house of Tadar Chada and Tadar Kampung on 24.06.2022 at 6 PM, 31 bags of suspected cannabis weighing 525.97 kilograms were recovered from the storage room adjacent to the bathroom.

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5. The Naharlagun P.S. Case No. 82 of 2022 was registered on the basis of this FIR. It is submitted that the present case is an offshoot of the Naharlagun P.S. Case No. 82/2022. The petitioner was arrested in connection with Naharlagun P.S. Case No. 82/2022 and was released on bail.

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6. On 02.07.2022, 246.81 kilograms of cannabis was seized from his godown. Thereafter KTG P.S. Case No. 4 of 2022 was registered. At present the accused is apprehending arrest in the KTG P.S. Case No. 4/2022. The police could not arrest him in connection with the Kalaktang case because, he was not at home as he was in judicial custody at that time. It is submitted that the accused is suffering from kidney stone and he has to undergo immediate operation for enlarged liver and kidney stone.

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7. I have considered the submissions at the Bar. The accused is booked under Sections 20(b)(ii)(C)/27(a)/29 of the NDPS Act. He is booked under a grave offence. The FIR dated 02.07.2022 depicts that 246.81 kilograms of cannabis was recovered from his godown. To consider a petition of pre-arrest bail, the underlying principles are that-

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(i) The antecedent of the accused has to be taken into consideration;

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(ii) Flight risk has to be contemplated;

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(iii) Gravity of the offence has to be considered; and

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(iv) The likelihood of the repetition of such act has to be gauged after assessing

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the behavior pattern of the accused/applicant.

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8. It has been held by the Hon’ble Apex Court in Sushila Aggarwal & Ors. Vs. State (NCT of Delhi) & Anr. , reported in (2020) 5 SCC 1 that – “genesis of this jurisdiction under Section 438 Cr.P.C., lies in Article 21 of the Constitution object of which is to ensure liberty of citizens by protecting them from unwarranted arrests.

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9. It has also been observed in Nathu Singh Vs. State of Uttar Pradesh & Ors. and Ompal Singh Vs. State of Uttar Pradesh & Ors. , reported in 2021 CRI.L.J.2593:AIR Online 2021 SC 260 by the Hon’ble Apex Court that – the discretionary power of the Court under Section 438 Cr.P.C. cannot be exercised in an untrammeled manner. Observation of the Apex Court in paragraph 25 of the judgment is as under:

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“25. However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C. particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one.”

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10. Keeping in mind the law laid down by the Apex Court in the judgments cited above (supra), it would be appropriate to cull out the grounds to figure out if the petitioner is entitled for being admitted to bail.

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11. The FIR dated 02.07.2022 was lodged against him with the police at Kalaktang police station and earlier FIR was lodged against him with the police at Naharlagun police station on 24.06.2022. The Annexure-4 annexed with the petition reveals that the petitioner is a patient of chronic Hepatitis-B and he was undergoing treatment in the male medicine ward of TRIHMS. This annexure is dated 03.09.2022. This implies that the petitioner underwent treatment immediately after the alleged incident. The Anenxure-5 depicts that the petitioner is suffering from kidney stone. The copy of bail order dated 26.08.2022 in connection with the B.A. Case No. 79 of 2022 reveals that the petitioner was released on bail, because his wife required a serious surgical operation on medical ground. It is not clear from the afore-

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mentioned order whether the petitioner’s wife requires kidney transplant. The behavior pattern of the petitioner is writ at large. The antecedent of the petitioner spells out why this Court has to be cautious while admitting the petitioner to bail. He is apprehending arrest in connection with a case wherein allegedly 246.81 kilograms of cannabis was recovered from his godown. This incident under any circumstance does not appear to be an offshoot of the Naharlagun P.S. Case No. 82/2022 at this juncture. The offence allegedly is serious in nature and proper treatment can be provided to the petitioner even at the stage of investigation. Mulling out the nature and gravity of the offence, and its cascading affect on the society, this Court has to be cautious while granting pre-arrest bail. The antecedent of the petitioner is of concern.

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12. Drugs have become a menace to the society. If released on bail, prejudice may be caused to free, fair and full investigation. The medical documents submitted by the petitioner does not substantiate the submission that immediate kidney transplant is advised to the petitioner or to his wife. The petitioner is in a predicament. Considering the precarious condition of his health, a balance has to be struck between the concerns of the investigating agency, the society at large and the concerns of the petitioner. The Annexure-6 as advised by Doctor In-charge of B.K. Memorial Hospital, Tezpur dated 16.10.2022 is that the petitioner has to undergo operation for left renal calculus and liver fibrosis. I would like to rely on the decision of the Hon’ble Supreme Court in Nathu Singh v. State of Uttar Pradesh and Others in Criminal Appeal No. 522/2021 decided on 28.05.2021 wherein it has been observed that:-

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“14. The Constitution Bench in Sushila Aggarwal (supra) has authoritatively held that when a Court grants anticipatory bail under Section 438, Cr.P.C., the same is ordinarily not limited to a fixed period and would subsist till the end of the trial. However, it was clarified by the Court that if the facts and circumstances so warranted, the Court could impose special conditions, including limiting the relief to a certain period.

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It is therefore clear that a Court, be it a Sessions Court or a High Court, in certain special facts and circumstances may decide to grant anticipatory bail for a limited period of time. The Court must indicate its reasons for doing so, which would be assailable before a superior Court. To do so without giving reasons, would be contrary to the pronouncement of

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this Court in Sushila Aggarwal (supra). If the High Court had therefore decided to allow the anticipatory bail application of the respondents-accused herein, albeit for a limited period of 90 days, the task before this Court would have been somewhat easier. We would only have had to assess the reasons assigned by the Court, if any, for the imposition of such special condition in terms of the judgment in Sushila Aggarwal (supra).”

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Reverting back to this case it is held that the special facts and circumstances of this case warrant bail limiting the relief to a certain period. Suffice it to mention that a period of two months can be given to the petitioner within which he can undergo the operation advised to him by the Medical Officer.

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13. It is hereby directed that in the event of his arrest, the arresting authority is directed to enlarge the petitioner, namely, Shri Tsering Rakpa Namsa on bail of Rs. 30,000/- with a suitable surety of like amount for a period of 2 (two) months from today, to the satisfaction of the Arresting Authority, who may impose bail conditions as per Section 438(2) of the Cr.P.C.

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With the above order, the anticipatory bail application stands disposed of.

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JUDGE

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Comparing Assistant

Tsering Rakpa Namsa v. the State of Ap

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Tsering Rakpa Namsa v. the State of Ap

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