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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.

(The post was first published in https://lawumbrella.wordpress.com/ )

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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How HP Govt Contained an Imminent Threat Successfully

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video of Farmers arrested in Shimla

Shimla-Three Punjab farmers were detained by Shimla Police on January 19, 2021, from the Ridge Shimla. The police can be seen shrouding them from media person and rushing the farmers to the Sadar Police station. A couple of media person were allegedly hackled during this process. The farmers were kept at Sadar for hours for questioning and later brought before the Magistrate. However, the scene created a stir among those who witnessed it.

Media persons were left wondering as to what these people might have done or were about to do. The body language, action, and statement of the police suggested that these three persons posed some serious threat.


Himachal Watcher tried to contact the Superintendent of Police, Mohit Chawala, to know about the matter, but couldn’t connect. However, a statement to an English Daily suggested that these three persons posed some sort of immediate and serious threat. They were booked under Section 107 (Abetment of an unlawful activity/thing) and 150 (Hiring, or conniving at hiring, of persons to join unlawful assembly).

“We had inputs about the arrival of some farmers but their credentials could not be verified. They have been detained as a preventive measure,”

the SP told the Daily. The Police is yet to reveal the nature of the intel and intensity of the threat posed by these three suspects.

This statement suggests, these three persons would have been on the radar of the police and their detention would have been of utmost importance to the police as it was gathering intel about them.

We will speak about the recovery of things made from these three suspects who had planned something big in Shimla later. 

Watching police in such aggressive action, media persons were seen running along the policemen who were taking these persons to the Station. According to media persons present on the scene, a couple of them were hackled by police. One of the officials, who was in a civil dress, allegedly threatened a media-person.

The policemen were seen trying hard to not let mics of reporters get near these persons. These suspects were seen trying to get the attention of the media and the people present on the scene. One of the suspects was even heard speaking something about “Right to Speech” in the Indian Constitution and “Democracy”.

When the suspense ended by evening, it turned out these were only three farmers who had come from Singhu border near Delhi to speak about three contentious Farm Laws passed recently by the Government of India. As per the police, a threat of a demonstration was looming large. To accomplish their purpose, they were reportedly carrying ‘banner’ about farmers’ protest. The police successfully recovered them before they could cause any damage to the people. However, the State Police, thus, the State Government successfully contained this imminent threat and saved a lot of people from exposure to the opinion of farmers on the Farm Laws. These farmers, if not stopped, would have spoken about their reasons to oppose these Laws.

The police said the Ridge Maidan, Shimla, falls under the Core area and requires prior permission to hold a demonstration/protest/events etc., which is true. These persons had obtained no such permission, thus, invited detention. Legally, this detention could be justified only if these persons were found violating this norm. The police or say the government might have their reasons to take such action. But our readers had been writing to us to ask about the activity in which these farmers were found to be indulged in at the spot. The farmers said that they were not shouting slogans nor staging a protest.  The SP Shimla, in a statement to media, said that these persons were detained before they could execute their plan.

The execution of detention aptly speaks about the urgency of detention of these farmers. The farmers’ protest is denting the reputation of the ruling party in the Centre. In case, more farmers are convinced and join the protest, it would cause more damage to the Union Government. These Laws have invited massive protest from farmers, especially from Punjab and Haryana. Farmers have been protesting for almost two months now. The farmers have even planned to hold a tractor parade on January 26 – the Republic Day. The pressure on the Government has mounted to such an extent that yesterday it agreed to pause the three Laws for the next one and half year. Before this, the Supreme Court had stayed the Laws and constituted a committee. The farmers are, however, adamant that the Laws should be repealed. The eleventh round of talks between the farmer representatives and the Government today again concluded without any agreement between two parties. So, the state Government’s concern regarding the containment of such threats can be well explained here.

As far as the persons, who were later released on bail, managed to speak to a couple of media persons – major lapse in security. They said that farmers had been going to various states to create awareness about the Farm Laws but did not receive such a treatment anywhere except Himachal Pradesh.

“We were treated like terrorists,”

they complained.

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The Story of Himachal’s ‘Friendly Leopard’ from the Viral Videos

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Viral Himachal Leopard Cub Video

Kullu-Several videos of the ‘leopard incident’ in Tirthan Valley, Kullu district, Himachal Pradesh, are going viral in India and would soon spread to international media. Anyone who is watching these videos is wondering as to how a wild predator who avoids humans, habitats, roads etc. and is a shy feline happened to be playing with people amid a huge gathering of people around him, traffic jam, and a lot of noise. It’s just like a fantasy to see a wild animal having such close, friendly contact with humans despite not being familiar with humans. Not only it was dangerous for the animal itself but also the ignorant people chasing him with mobile cams in their hands. That’s what we could infer from the response given by forest officials after watching the behavior of the people in these video clips. Himachal Watcher has also compiled several video clips of the incident.

A lot of our curious readers had been writing regarding the incident, so we talked to people who actually have knowledge regarding wildlife and animal behaviour in order to find a possible explanation for this rare leopard-man contact. It turned out, opposite to the fun people were having with this animal, it was a sensitive matter for the wildlife officials. 

We talked to the Divisional Forest Officer (DFO), Banjar, Praveen Thakur and HPFS, Sachin Sharma, who is currently posted as DFO, Great Himalayan National Park (GHNP).  Readers had been asking us questions; Where did it come from? How did it become so friendly with humans? What happened to the cub later? So we requested DFO, Banjar, Praveen Thakur, to answer these and some other important questions related to the incident. 

What you already know is that a leopard came out of the wild onto the road near Sarchi – Nagladi bridge in Tirthan valley on January 14. This belt comes under the Great Himalayan National Park. People stopped their vehicles and came out to record videos. The leopard was seen playfully grabbing different people. A traffic jam and a huge gathering of people, mostly locals, were seen in the videos. It was something that people had never seen, at least in this part of the world. 

The DFO, GHNP, also admitted that this is highly uncommon to see such ferocious wild predator getting so friendly within a few hours after contact with humans. But in this case, it was just a cub, aged about seven to eight months. 

“I haven’t seen or heard of such an incident where a wild leopard became so friendly with humans that he started to play with them. These animals are generally shy and smartest in the feline families. They avoid humans and their habitats,” he said.

When asked whether a cub of its age, considering strength and growth of nails and teeth, was capable of inflicting harm or not, he said that on sensing a threat it can. He condemned the behaviour of the people as it was not only dangerous for them but also the animal.

“Amid such a chaotic environment, the behaviour of any wild animal would be unpredictable. If not intentionally, the cub could have inflicted minor injuries to someone while playing. In that case, the reaction of people could have been hostile and things could have gone wrong,” he said.

In his opinion, this rare instance can’t be termed as a result of man-animal conflict. No other instances where these animals attacked or caused harm to humans in this region have been reported, he said.

The DFO, Banjar, Praveen Thakur said he was also surprised but also gave an explanation.

“It was an eight- to-nine-month-old cub, who got separated from its mother. The mother with its cubs lives in a nearby forest in a territory of four to five square kilometers. There was an incident of fire in the area and the cub, most probably, got separated from the mother due to it,” the DFO told Himachal Watcher.

Regarding the friendly behaviour of this cub, he said,

“Several videos are going viral on social media where the cub was looking comfortable and friendly with humans amid a crowd. Adult leopards show behavioural changes before becoming mature animals. They mostly avoid humans. But it was not an adult leopard, but just an 8 to-9-month-old cub,” he said.

“However, the cub did not get friendlier at the starting and was avoiding vehicles. As per my knowledge, for the first few hours, the cub was seen roaming around in a distress and avoiding humans and vehicles. (Watch Video). Initially, a couple of vehicles stopped to see the cub. As it was just a cub unable to hunt and survive at its own, it got friendlier after sensing that humans were not harming and, thus, were no threat. Cubs can get friendly on sensing no threat. Similarly, cubs and young offspring of several other animals can get friendlier.”

If watched video clips carefully, the cub was curious and trying to explore this new environment. But at the same time it was distressed as it had gotten separated from its mother and was in a environment not natural for it.

Citing a previous case, the DFO said,

“Not long time ago, we had rescued a bear cub. He had also become friendly within no time.”

“In the present case, we have identified the family. Mother lives in the forest not far from our Rest House. The area falls under the Great Himalayan National Park and is not far from the road. The family is not entirely unfamiliar with traffic and human movement,” he told HW.

In the current incident, he said that it’s a case of separation of the cub from mother.

A forest fire was reported in the territory of this family, and the mother or the cub got stuck somewhere due to it, resulting in a separation.”

He confirmed hearing calls from its mother. Mother would make a particular sound as a form of a call when trying to find its cubs, he explained.

He said that the department received the information regarding the presence of this cub among humans a little late. On receiving information, a rescue team was dispatched, which reached the spot within half-an-hour.

The team caught the cub with a net without much difficulty, he said. As it was healthy and had no injury or disease, it was released into its natural habitat as guidelines say that in such a case the animal should be released to its natural habitat as soon as possible to reduce distress.

He also said that teams are continuously monitoring the movement of the cub to ensure that it reunites with its mother and do not venture into human habitats or comes near the road again.

The mother and the cub are only a couple of kms distance apart. The cub would also make calls, which would help the mother find it, he said.

He rejected speculations of this cub being raised as a pet.

“His mother would have not been making calls if the cub was raised as a pet. These calls imply that the cub got separated very recently,” he said.

“After consulting wildlife experts, we have decided that in case the cub is seen venturing into human habitats or places having human presence and displaying same friendly behaviour again, then it would have to be captured and sent to the rescue centre in Gopalpur in Kangra district,” he said.

If it would grow up while remaining in friendly contact with humans, it might not get capable of attaining hunting skills to survive at its own in the wild. Moreover, these animals could inflict grieve injuries unintentionally while playing.

However, we are certain that the mother would soon find the cub. We will keep monitoring it until the mother stops making distress calls, he said.

On being asked whether this cub was capable of hurting or injuring a human, the DFO said that cubs of this age lack hunting skills, and it’s mostly after one year of age that the mother starts training them.

The DFO, however, expressed more concern over the behaviour of the people than that of the animal.

Most of these people were locals and they are often made aware about dos and don’t on an encounter with a wild animal.

“As soon as I came across the videos, I contacted a few people who were present on the spot including the Pradhan of the area and told him to ask people to stay away from the cub and to not chase him for photos and videos. I had even spoken to the local police to help manage the situation as people were not even listening to our Rangers,” he told HW.

“It was a complete nuisance that the people were creating by causing a traffic jam, chasing the cub, and trying to get close to it. We are trying to identify some people visible in the video deliberately going near the cub,” he added while informing that there are provisions of three to six months of imprisonment for those creating nuisance for or teasing wild animals, especially those protected. Leopards are protected under Schedule 1 of the Indian Wildlife Protection Act.

He urged the people to avoid wild animals if they happen to encounter them. Stay away from them, do not gather around and obstruct their path. Left alone, on sensing no threat, these animals eventually find their course and go back to their natural habitat, he said. In the current case, the situation would have led to chaos if it was a mature leopard, he said.

Even if you want to watch the animal then, at least, maintain a safe distance or remain in the vehicle, he added.

When asked whether this instance can be related to man-animal conflict and is a matter of concern or not, the DFO said,

“This can’t be termed as a matter related to man-animal conflict and isn’t a matter of concern as long as animals do not enter human habitats and kill livestock or attack humans. Moreover, such judgement can’t be made based on a single instance.”

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Farmers Welcome SC Order to Stay Implementation of Farm Laws But Suspicious About Formation of Committee

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stay on farm laws

New Delhi: The Supreme Court on Tuesday stayed the implementation of three contentious farm laws passed by the Centre Government, which has led to huge protest from hundreds of farmer groups. The stay implies that the Centre Government can’t take any executive actions based on these laws till further order. 

“The implementation of the three farm laws (1) Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) Essential Commodities (Amendment) Act, 2020; and (3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, shall stand stayed until further orders,”

said the order passed by a panel headed by the Chief Justice of India (CJI) Sharad A Bobde on Tuesday.

Further, the MSP system would continue as it was before the enactment of the laws.

“As a consequence, the Minimum Support Price System in existence before the enactment of the Farm Laws shall be maintained until further orders. In addition, the farmers’ land holdings shall be protected, i.e., no farmer shall be dispossessed or deprived of his title as a result of any action taken under the Farm Laws,”

the order said.

With this order, the SC hoped to end the ongoing impasse over the contentious farm laws.

The farmers who have been protesting for over the last 45 days, welcomed the SC’s order.

However, at the same time, the Apex Court ordered the formation of a committee to listen to both sides and make recommendations to the court. The committee, which would comprise of Agriculture economist Ashok Gulati, Bhupinder Singh Mann, Dr Prmod Kumar Joshi, former director of National Academy of Agricultural Research Management), and Anil Ghanwat from Shetkari Sangathan, was asked to submit its report in the court within two months.

The CJI, in its order, speaking about the purpose of this “extraordinary” order, said,

“While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmers’ bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others.”

Though a stay on the implementation of laws was welcomed by protesting farmers, several unions said that they would not accept this committee and the protest will continue. They said the Government is trying to form this committee through the Supreme Court. This committee, they said, included persons who have already been justifying the farm laws. They said the purpose of this committee is nothing more than creating a diversion. The protest would be armed up and only a repeal of laws would be accepted, the unions said. 

At the same time, the SC was undeterred with these statements and said there is nothing that can stop it from forming a committee. The SC asked the farmers to cooperate with the committee.

On the other hand, the Government was more concerned about that other political parties would think of the stay as a “political victory”.

Further, the Government has also expressed apprehension about security breach due to the tractor rally planned by protesting farmers on the Republic Day.

K.K. Venugopal, Attorney General, told the court that there are reports that the farmers’ bodies may take out a tractor rally on January 26, 2021, disrupting the Republic Day Parade and celebrations However, the same was stoutly denied by Dushyant Dave, learned senior counsel appearing for a few of the farmers’ bodies on the ground that at least one member of the family of each of the farmers from Punjab is in the Army and that they would not disrupt the Republic Day celebrations.

The Court, in its order, said that several rounds of talked between farmers and the Government have failed and there was no solution in sight.

“The situation on ground is: (i) that senior citizens, women and children are at site, exposing themselves to serious health hazards posed by cold and covid; (ii) that a few deaths have taken place, though not out of any violence, but either out of illness or by way of suicide,”

the order said.

The court also lauded the farmers for carrying on the agitation peacefully without any unwanted incident.

Further, the Court orders also mentioned separate petitions filed by individuals/residents of the NCR complaining of blockade of roads/highways leading to Delhi and terming it an infringement of the fundamental rights of other citizens to move freely and to carry out trade and business.

Stay on 3 Farm Laws and Formation of Committee: Read Full Order of Supreme Court

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