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The Legality of Proposed Arrest and Law Proceedings Turmoiled by Section 438 of Cr.P.C. : High Court of Tripura

Section 438 of Cr.P.C. deals with the Anticipatory Bail. This provision allows a person to seek bail in anticipation of an arrest on accusation on non-bail able offence having committed by the person. It is a direction to release a person on bail, issued even before the person is arrested. In the case of Sri Bishnu Kumar Tripura versus The State of Tripura Case no. A.B. No. 58 of 2021, Mr. J. Bhattacharjee represents as the advocate for the petitioner and Mr. R. Datta represents the state of Tripura as the public prosecutor. The judgement was given in the High Court of Judicature at Tripura by Hon’ble Mr. Justice S. G. Chattopadhyay.

But time and again, this section comes across as a barrier for the legal proceeding and restrains the person from getting arrested. Anticipatory Bail cannot be granted as a matter of right. It cannot be considered as an essential ingredient of Article 21 of the Constitution.

The brief facts of the case goes by, the petitioner was accused of offence punishable under Sections 20(b)(ii)(C), 25, 27A, 29 and 32 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act hereunder), hereby he requested Hon’ble High Court of Tripura to grant him pre arrest bail as he has been apprehending arrest in Bishalgarh. A suo moto FIR was lodged by the Inspector of police of Bishalgarh police station, named Sri. Parthanath Bhowmik when he received an information from police source that a truck bearing registration No. TN47-AT 4858 (Ashok Leyland Truck) was coming towards Bishalgarh from Udaipur and the said vehicle was carrying dried ganja. He along with his officers reached the spot and started noticing the vehicles coming from the said direction and they came across the suspected vehicle wherein, Selvaraj K was the driver, he claimed the vehicle carries rubber sheet but when inspected he tried to flee away, later police found 3390 kg of dried ganja. When interrogated, he revealed, Petitioner was found as the owner of the said contraband. Apprehending arrest in the case, accused petitioner has moved this court by means of filing this petition under section 438, Cr.P.C. seeking pre arrest bail.

Counsel appearing for the petitioner contends that there is no material at all to justify the arrest and detention of the accused in connection with the present case. Therefore, it is necessary to protect him from unwarranted arrest to safeguard his liberty guaranteed under the Constitution. The petitioner contended that on the date of occurrence the accused was not at all present in the State. Counsel submits that the certificate issued from the Gauhati Medical College & Hospital would show that accused had undergone COVID-19 screening in Gauhati Medical College & Hospital on 22.07.2021. Therefore, in no circumstances he was present at the alleged place where the contraband was allegedly loaded in the offending vehicle. Later the public prosecutor claimed the certificates to be fake.

Considering the plea of both the parties, the court is of the view that no prima facie case has been made out against the petitioner. And the pre arrest bail was granted to the petitioner.

The court concluded that: “The petitioner shall be released on bail on his furnishing bail bond of Rs.40,000/- with two local sureties of the like amount to the satisfaction of the I.O on the following conditions: (i) He will appear at the police station before the investigating officer twice in a week till the completion of investigation. (ii) He will not leave the jurisdiction of the concerned police station without prior approval of the investigating officer. (iii) He will not try to influence any of the witnesses of this case in any manner whatsoever.”

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