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

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Chief Justice of Tripura High Court Sanjay Karol

Tripura –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;

  1. The accused is not guilty of the offenses with which he is charged and
  2. 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:

“Bail is a rule and jail an exception”.

The Order of the Hon’ble Tripura High Court is very detailed and is a ready reckoner for anyone who wants to understand the law regarding Bails.

Deven Khanna is a Lawyer, practicing at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School. For any queries related to the articles, he can be contacted at 7018469792 or at khannadeven@gmail.com. The personal blog is at https://lawumbrella.wordpress.com/

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Kotkhai Custodial Death Case: Forced to Consume Liquor, Cannabis, then Tortured, Witness Tells Court

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Kotkhai Custodial Death case trail witnesses

Shimla-In the Kotkhai custodial death case, six more witnesses recorded their statements in the special CBI court in Chandigarh on October 9, 2019. One of the witnesses included Ashish Chauhan – an accused in Gudia rape and murder case, who was later discharged by the CBI.

While three accused – former Inspector General of Police, Zahur H Zaidi, former SP, Shimla, DW Negi, and DSP, Theog, Manoj Joshi-were already granted bail by the court, the bail plea of three others was dismissed yesterday. These three accused included former Station House Officer (SHO), Kotkhai Police Station, Rajinder Singh, head constable Rafee Mohammad, and constable Raneeta.

In his statement, prosecution witness Ashish Chauhan told the court that he was picked up from his home on July 9, 2017, by three policemen and was taken to Bankufer rest house, where he was interrogated. On July 9, he was taken to Chhaila police post where he was kept till July 10.

Ashish, in his statement, told the court that Zaidi, Bhajan Dev Negi, Rattan Negi, PSO Sushil, PSO Sunil, and Manoj Joshi started torturing him from July 11 using different techniques. They asked him to confess to the crime, which he had not committed, Ashish said. He alleged that he was tied upside down with a rope and beaten brutally with sticks and given electric shocks. He also alleged that during this torture, he has sustained grieve injury to his spinal cord. 

He also alleged that Zaidi forcefully made him consume neat alcohol. Zaidi smoked cannabis and also forced him to smoke the same, Ashish alleged.

On the intervening night of July 13-14, his signatures were taken and he was told that an FIR was registered. The police was also alleged of keeping him in custody illegally without taking him to the court within 24 hours of arrest. It was only on July 15 that he was taken to the local court in Theog and was officially taken on remand.  

Other than Ashish, statements of other prosecution witnesses including Dr HV Acharya, Assistant Director, Forensic Science Laboratory, Gujarat, who had conducted BEOS and narco test on Ashish Chauhan, Rajinder Singh, Lokjan, Deepak and Subhash Singh, was also recorded. 

As per the conclusion of the report, no the role of five accused was observed in the act of rape and murder of Gudia as the motive of rape and murder were not established. Similarly, narco and BEOS test did not suggest any role of Rajinder in the killing of Suraj inside Kotkhai Police Station lock-up.

Further, prosecution witness Dr Ashwani Soon, who is a radiologist with DDU Zonal Hosptial, Shimla, Pritam Chand, Amar Singh Verma and constable Ajay Kumar also recorded their statement and were cross-examined.

Earlier, in the previous hearing in the case in September 2019, six prosecution witnesses had recorded their statement in the court. As a crucial revelation, the driver of Zaidi had told the court that he was with the accused from July 11 to July 13, 2017. He confirmed that he took Zaidi to the spot where the body of the rape victim was lying on July 11. Later, the driver said, he took Zaidi to Kotkhai Police Station and then to the Guest House of Public Works Department in the afternoon. Five accused were also kept at the HPPWD guest house illegally after their arrest.

Similarly, during a hearing on August 16, 2019, two villagers, Prashant Negi and Ishan, had given statements that they were illegally detained and kept at the said guest house. They had also told the court that they were brutally beaten, kept naked, and given third-degree torture between July 11 and July 13. These two CBI witnesses had identified Zaidi and then SP DW Negi and other police officials who were present during this time.

There are total 60 prosecution witnesses of CBI in the case. Statements of over 26 witnesses have already been recorded.

On August 29, 2017, CBI had arrested eight Police officials including the IG Zaidi in relation to the custodial killing of Suraj – an accused in the Gudia rape and murder case- on July 18, 2017. Later, then SP DW Negi was also arrested. CBI had later discharged all remaining accused alleging that they were innocent and were framed by the said police officials.

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Himachal BJP Leaders Including President Satti Make Mockery of HC Orders and Laws of Entry on Sealed Roads

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Hp BJP President Satpal Satti Breaks Rule

Shimla-Entry of vehicles on the Ridge Maidan is prohibited except for the emergency vehicles and vehicles of the Governor and the Chief Minister. But this is not the only concern; the Ridge Maidan and the tank beneath it have developed cracks. The movement of vehicles could make things worse. However, the Ministers, MLAs, Govt Officials, and even leaders of the ruling BJP do not care about what the law or the state High Court says or they don’t care about the sensitive condition of the Ridge Maidan.

The Chief Minister Jairam Thakur led Bharatiya Janata Party government had made a promise to the people of the state that it will put a check on VIP culture. However, neither the Ministers nor the MLAs of BJP are keeping this promise. They are openly defying laws related to entry and parking on sealed roads, as well as, showing disregard to the orders of the State High Court. The VIP culture is flourishing.

In such an instance, on September 25, 2019, on the occasion of Birth anniversary of Pt. Deendayal Upadhyaya, a drive to clean statues of great leaders of the Nation established in Shimla town was organized. The Chief Minister also took part in the drive and cleaned the statues of Mahatma Gandhi, Lala Lajpat Rai, former Prime Ministers Lal Bahadur Shastri and Indira Gandhi, and first Chief Minister of Himachal Pradesh Dr. Y.S. Parmar and Lt. Gen. Daulat Singh situated at The Ridge Shimla.

BJP State President Satpal Singh Satti also took part in it. But he forgot to show regard to rules and regulations and to the orders of the state High Court. His car was seen parked in front of the state library on the historic Shimla Ridge Maidan. Some other government vehicles including that of the Chief Minister Jairam Thakur was also on the sealed road.

As per the rules, as well as, the High Court orders, except emergency vehicles and vehicles of the Governor and the Chief Minister, no vehicle is allowed to enter the sealed road. However, enjoying the perks of power, the BJP President, displayed how political power allows leaders to over-ride rules and regulations.

This is not the first instance. Earlier, on August 28, 2019, at an event organized by BJP to pay tribute to their senior party leader Arun Jaitley, several ministers, MLA, and other government officials reached the Gaiety Theatre in their vehicles. The police was helpless and instead of enforcing the orders of no entry on the sealed Ridge Maidan, they were seen facilitating them.

Moreover, neither the Dailies nor online news portals highlighted it.

Even the Chief Minister isn’t following the orders of the Supreme Court regarding the ban on usage of the multi-toned horns in official vehicles. As per information obtained through an RTI, the vehicles of the Chief Minister and several other ministers were allegedly still using sirens/multi-tone horns in their official vehicles. A Division Bench comprising acting Chief Justice Dharam Chand Chaudhary and Justice Jyotsna Rewal Dua has sought a reply from the state government in its order passed recently. The order was passed on a petition filed by the HP High Court Bar Association.

Then, daily, several VIP cars with stickers of MLA could be seen parked on the sealed road near Clarks hotel. Pictures of these vehicles could be seen on social media posted by commoners. Several readers have shared these images with Himachal Watcher too. These posts receive a lot of critical comments from the people, but it never bothers these VIPs.

Parking on Sealed Roads Is Prohibited by Court Orders?Though the parking is prohibited on sealed roads of Shimla for…

Himachal Watcher द्वारा इस दिन पोस्ट की गई बुधवार, 7 अगस्त 2019

Then, there are VIP cars breaking traffic queues and parked wrongly, causing traffic jams.

#HPGovt Vehicles Continue Creating Traffic Nuisance With govt stickers on their cars, govt officials continue to…

Himachal Watcher द्वारा इस दिन पोस्ट की गई गुरुवार, 12 सितंबर 2019

What message the ruling party and the government want to send to the people? Do they want to make it a matter of prestige to violate laws and defy court orders

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APMC Bill 2019: Will it End Exploitation of Farmers in Himachal? This is What Minister Markanda and MLA Rakesh Singha Have to Say

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APMC Bill 2019 agriculture minister markanda and mla rakesh singha

Shimla-The Agriculture Produce Marketing Committee Bill 2019 would check exploitation of farmers and apple growers by commission agents and traders, says the Agriculture Minister Ram Lal Markanda. Unless this Bill is passed, the government has no control over existing APMC, thus, despite being the Agriculture Minister, he is helpless to get justice for the farmers, Markanda had told media couple of weeks ago.

However, Rakesh Singh, MLA of Theog Constituency, has a different opinion regarding the Bill. He said he has gone through the Bill thoroughly. Singha rejected Markands’s claim that the government has no control over the APMC. He asks as to how it is possible when the majority of the APMC members are officials of the state government.

Video: MLA Rakesh Singh on Agriculture Minister’s Claim That He Has No Control Over APMC

When asked whether the new APMC Bill would actually benefit farmers and fruit growers of the state, Singha said it was the other way round. With this bill, the government would permit that anyone from anywhere in India could open a market in Himachal. It’s natural that giant firms would use this opportunity, leading to shut down of small local businesses. He asserts that existing laws are equally strong.  

Video: Agriculture Minister Ram Lal Markanda and MLA Rakesh Singha on APMC Bill 2019

It’s pertinent to mention that apple growers, as well as, Kisan Sangharsh Samiti had been protesting over pending payments of hundreds of apple growers, which were not being paid by commission agents. Then there were complaints of unregistered and even blacklisted commission agents infiltrating the market and depriving growers of receiving justified prices for their produce. The growers approached the APMC and the state government several times with pleas to help them in recovering their payments worth lakhs of rupees. None of the two came to their rescue.

Led by the Kisan Sangharsh Samiti, the growers were forced file FIRs against commission agents, following which some of the pending payments were recovered.

The response of the Agriculture Minister to these repeated instances of frauds and exploitations by traders and commission agents despite provisions of rules and regulations regarding the payments and conducting business in the markets was that he has no control over the APMC at all. As per Markanda, the solution lies in the new APMC Bill 2019, which was to be passed in the monsoon session of the HP Legislative Assembly. However, it was deferred till the winters session and was sent to Select Committee after some MLAs pointed out that the Act should be carefully analysed before passing and implementing it.

Markanda says that the APMC Bill 2019 would be passed in the winter session and it would bring relief to the growers. He asserts that the Bill has provisions to prevent farmers and apple growers from frauds.

The Bill would apply on the commission agents based outside the state. After the implementation of this bill, the market fee would only be charged at markets and all other barriers would be lifted. It would open the market of entire India to growers by facilitating online trading, Markanda claimed. 

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