Manipur High Court

Mr. Mungtung Leithil Charanga vs The Officer-In-Charge on 2 November, 2022

SHAMURAILATPAM SUSHIL                Digitally signed by SHAMURAILATPAM
                                     SUSHIL SHARMA
SHARMA                               Date: 2022.11.04 16:50:47 +05'30'
                                                                                   Page |1



                             IN THE HIGH COURT OF MANIPUR
                                       AT IMPHAL

                                    Bail Appln. No. 19 of 2022

                    Mr. Mungtung Leithil Charanga, aged about 33 years,
                    S/o Muntung Modou Charanga, resident of Khambang
                    Khunou, Chandel District (Now Tengnoupal), Manipur-
                    795135.
                                                                          ... Petitioner

                                             -Versus -

                    The Officer-in-Charge, City Police Station, Imphal
                    West, Manipur- 795001.
                                                                     ...Respondent

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner :: Mr. Osbert Khaling, Advocate

For the Respondent :: Mr. H. Samarjit, Addl.PP Date of Hearing and

reserving Judgment & Order :: 28.09.2022

Date of Judgment & Order :: 02.11.2022

JUDGMENT AND ORDER (CAV)

This petition has been filed by the petitioner, who

is younger brother of accused no.2, under Section 439 Cr.P.C.

read with Section 37 of the Narcotic Drugs & Psychotropic

Bail Appln. No. 19 of 2022 Page |2

Substances Act, 1985 [for short, "the ND & PS Act"] seeking bail

to accused no.2, namely Ch. Konai Maring, who is in jail, in

connection with FIR No.61(6)2022 under Section 21(c)/29 ND

& PS Act on the file of City Police Station.

2. Heard Mr. Osbert Khaling, learned counsel for the

petitioner/accused no.2 and Mr. H. Samarjit, the learned

Additional Public Prosecutor for the respondents.

3. The case of the prosecution is that on 4.6.2022 at

about 1.00 pm, the CDO team along with women police

personal were conducting normal frisking and checking

patrolling around Paona Bazar BT road and at that time, one

man and one woman were found standing along with one apple

cartoon box and two thermo flasks in a very suspicious manner

in front of eastern gate of Johnstone Hr. Secondary School

along NH-2. Immediately, they were detained for spot

verification and the woman identified herself as Lhingboi Kipgen

and man identified himself as Ch. Konai Maring. On their body

check, mobile phone with sim cards, aadhar card, some cash

were found from their possession. On being asked about the

contents of the apple cartoon box and two thermo flasks, they

replied that it contained apples. But on opening it, the team

Bail Appln. No. 19 of 2022 Page |3

found to contain 30 numbers of soap cases containing

suspected heroin no.4 and opening the thermo flasks, 20

numbers of soap cases containing suspected to be heroin were

found, weighing 658 grams without the soap cases. Thereafter,

by observing all formalities, both were arrested and upon

bringing them to the police station, an FIR No.61(6)2022 under

Section 21(c)/29 ND & PS Act was registered against them.

4. Mr. Osbert Khaling, the learned counsel for the

petitioner submitted that accused nos.1 and 2 are close friends

and on 4.6.2022, accused no.2 was on his way to Dewlahland

to visit his handicapped nephew Mano Tontanga for providing

some help and he first got down at Johnstone Hr. Secondary

School to catch another auto for Dewlahland and while waiting

for an auto, he saw accused no.1 standing with heavy loads of

box. On seeing accused no.1 with heavy box, who is also going

towards Khuman Lampak, which is on the same way to

Dewlahland, accused no.2, being family friend, without knowing

the contents of the box, helped her.

5. The learned counsel further submitted that

accused no.2 has not involved in the present case, as in her

confession accused no.1 stated that the contraband were

Bail Appln. No. 19 of 2022 Page |4

received by her from a person at Myanmar and she also stated

that the seized items belong to her and that she was supposed

to contact one Boicy, who was to arrange for the suspected

heroin no.4 to be picked up from her near Khuman Lampak by

some associate.

6. The learned counsel would submit that accused

no.2 is innocent and charges levelled against him are false and

fictitious and nothing was recovered from his possession on the

date of the alleged arrest as per the seizure memo. In fact,

accused no.2 was unaware of the contraband that was

concealed inside the apple carton box and therefore, the said

seized items were not under the control of accused no.2.

7. The learned counsel next submitted that earlier

accused no.2 approached the learned Special Judge, Manipur

by filing Cril. Misc. (B) Case No.162 of 2022 for bail and by the

order dated 19.7.2022, the same was rejected on the ground

that accused no.2 has not mentioned anything as to what he

was doing at the relevant time of his arrest, nor mentioned from

where he came, how he met accused no.2. According to

learned counsel, the learned Special Judge erred in rejecting

the bail application of accused no.2 by not properly appreciating

Bail Appln. No. 19 of 2022 Page |5

the facts. The said order of the learned Special Judge is

erroneous and the same is liable to be set aside. It is the

submission of learned counsel for the petitioner that accused

no.2 has been falsely implicated in this case. Thus, a prayer is

made to grant bail to accused no.2. and that accused no.2 is

ready to obey the conditions imposed by this Court, while

granting bail.

8. Mr. H. Samarjit, the learned Additional Public

Prosecutor submitted that accused no.2 is directly involved in

taking the contraband to Dimapur and in fact, on interrogation,

accused no.2 disclosed that he accompanied accused no.1 and

he dropped the apple cartoon box containing heroin powder

from the passenger bus and loaded in an auto rickshaw for

proceeding towards Khuman Lampak at the parking area at

Imphal. He would submit that from seeing the call history of the

mobile phones, it was found that both accused nos.1 and 2

frequently talked to each other and that both in collusion with

other associates, have committed the offence under Section

21(c)/29 of ND & PS Act for their wrongful gain. There are

ample evidence that both the accused have involved in

trafficking of huge quantity of illegal drugs, therefore, letting

Bail Appln. No. 19 of 2022 Page |6

accused no.2 at this stage will hamper the smooth investigation

of the case.

9. The learned Additional Public Prosecutor urged

that day and day out the police personnel of Manipur arresting

accused involved in trafficking drugs and the State Government

is also trying its level best to tackle the problem by initiating war

against drugs programme. Letting these type of persons like

accused no.2 will add fuel to the fire and on the other hand

putting persons like accused no.2 behind bars to a maximum

period permissible under law will at least help curb the drug

problem to some extent and save young children from the

clutches of drug addiction. Thus, a prayer is made to dismiss

the petition.

10. This Court considered the rival submissions and

also perused the materials available on record.

11. The petitioner is the younger brother of accused

no.2, who is in judicial custody since 4.6.2022. The petitioner

has filed the instant bail petition stating that accused no.2,

being a family friend of accused no.1, helped her in good faith

without knowing the contents of the box. Accused no.2 is

Bail Appln. No. 19 of 2022 Page |7

innocent and the charges levelled against him are false and

fictitious and nothing was recovered from his possession on the

date of the arrest as per the seizure memo.

12. On the other hand, the learned Additional Public

Prosecutor contended that on interrogation, accused no.2

stated that he accompanied accused no.1 and he dropped the

apple carton box containing heroin powder from the bus and

loaded in an auto for proceeding towards Khuman Lampak at

the parking area at Imphal.

13. As could be seen from the seizure memo annexed

to the bail petition, it is clear that the apple cartoon box and

thermo flasks were seized from the possession of accused no.1

and the seizure made from accused no.2 is only (i) Mobile

phone and (ii) Aadhar card.

14. According to the petitioner, while giving voluntary

statement before the Judicial Magistrate First Class, Imphal

West-II, accused no.1 stated that accused no.2 was just

helping her to pick up the apple cartoon box as it was heavy,

thereby evidencing that accused no.2 did not had possession

and control over the contrabands. The aforesaid statement

Bail Appln. No. 19 of 2022 Page |8

made by the learned counsel for the petitioner is acceptable for

the reason that no contraband was seized and/or recovered

from accused no.2. Thus, the involvement of accused no.2 in

trafficking the illegal drugs is doubtful. However, the same

would be proved during trial only.

15. While rejecting bail petition of accused no.2, the

learned Special Judge observed that the confession of accused

no.1 before the Magistrate appears to be to save the present

accused person and that accused no.2 did not explain the

circumstance of his presence at the spot of arrest. The

circumstances of the presence of accused no.2 at the spot of

arrest though explained by petitioner, the same would also be

evident after completion of trial. The prosecution is bound to

prove the possession and control of illegal drugs by accused

no.2. But in the instant case, prima facie, the same has not

been proven as per the available materials.

16. According to the petitioner, accused no.2 was

coming down to Imphal to visit and stay with his physically

handicapped nephew at Dwlahland, as he was alone and

required help and support and coincidently met accused no.1

at the auto stand near Jhonstone Hr. Second School. The said

Bail Appln. No. 19 of 2022 Page |9

statement of the petitioner has not been disproved by the

respondent. Prima facie, there is no material to believe that

accused no.2 was in possession of banned drugs and has

involved in the commission of the crime alleged by the

respondent.

17. It is settled that bail can be granted in a case

where there are reasonable grounds for believing that the

accused is not guilty of such offence and that he is not likely to

commit any offence while on bail.

18. The jurisdiction of the Court to grant bail is

circumscribed by the provision of Section 37 of the NDPS Act.

It can be granted in case where there are reasonable grounds

for believing that accused is not guilty of such offence and that

he is not likely to commit any offence while on bail. It is the

mandate of the legislature which is required to be followed. At

this juncture, it is apposite to refer Section 37 of the Act, which

reads thus:

"37. Offences to be cognizable and non- bailable :

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 :-

Bail Appln. No. 19 of 2022 P a g e | 10

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting bail."

19. In the absence of concrete proof to connect

accused no.2 into the alleged crime, it cannot be said that

accused no.2 involved in the commission of the crime. It is to

Bail Appln. No. 19 of 2022 P a g e | 11

be pointed out that no recovery was made from accused no.2.

In this regard, the law is if no recovery was made from the

accused person, the Court ought to consider the same and

grant the accused the benefit of bail. As stated supra, no

contraband was seized from accused no.2 by the Investigating

Officer or any of the other police personnel. Therefore, this

Court is of the prima facie view that accused no.2 has

established his case for grant of bail.

20. It is reiterated that the involvement of accused

no.2 in the alleged crime is only based on the complaint,

wherein the complainant stated that on questioning, accused

no.2 stated that he along with Lhingboi Kipgen (accused no.1)

were going to proceed to Dimapur for delivering the soap cases

to one Boishi of Dimapur. The involvement in carrying the

illegal drug business by accused persons alleged by the

prosecution is purely based on the oral and documentary

evidence. Admittedly, the prosecution has failed to establish

the unauthorised possession, purchase, selling and

transportation of heroin by accused no.2.

21. According to the respondents, the investigation

completed and charge-sheet has already been filed on

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29.8.2022 before the trial Court. Prima facie, this Court is of the

view that there are reasonable grounds for believing that

accused no.2 is not guilty of the offence alleged against him

and that he is not likely to commit any offence while pending

trial of the case.

22. At this juncture, it is worthwhile to mention the

decision of the Apex Court in the case of Dataram Singh vs.

State of Uttar Pradesh and another, reported in AIR 2018

SC 980, wherein the Hon'ble Supreme Court has categorically

held that a fundamental postulate of criminal jurisprudence is

the presumption of innocence, meaning thereby that a person

is believed to be innocent until found guilty. The Hon'ble

Supreme Court further held that while considering prayer for

grant of bail, it is important to ascertain whether the accused

was participating in the investigation to the satisfaction of the

Investigating Officer and was not absconding or not appearing

when required by the Investigating Officer. The Hon'ble

Supreme Court has further held that if an accused is not hiding

from the Investigating Officer or is hiding due to some genuine

and expressed fear of being victimized, it would be a factor that

a Judge would need to consider in an appropriate case. The

Bail Appln. No. 19 of 2022 P a g e | 13

relevant paras of the aforesaid judgment are reproduced as

under:

"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed

Bail Appln. No. 19 of 2022 P a g e | 14

by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a

Bail Appln. No. 19 of 2022 P a g e | 15

first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons, (2017) 10 SCC

658."

23. As far as the arguments of learned Additional

Public Prosecutor that every day the newspaper headlines

Bail Appln. No. 19 of 2022 P a g e | 16

carry news about arrest regarding drugs and crime related to

drugs is concerned, while granting anticipatory bail to two

Assistant Sub-Inspector of Police who were said to be helped

the accused persons for illegal possession and transportation

of drugs and even for their release by receiving amount from

them, this Court remarked that "as if the fence itself grazed the

crop".

24. This Court further observed that to ensure that the

State is free from selling/transporting/smuggling ganja, brown

sugar, heroin and other narcotic substances by persons, apart

from the existing special team, it would be appropriate to direct

the Government of Manipur to constitute a Special Committee

headed by a Senior IPS Officers for monitoring the drug cases

at the State Level with formation of Sub-Committee at District

Level in the State headed by the Superintendent of Police to

weed out drug peddling. This Court also directed the State

Government to constitute a State Level Committee within a

period of two weeks from the date of receipt of a copy of the

order and thereafter within a further period of two weeks, the

District Level Committee shall be constituted.

Bail Appln. No. 19 of 2022 P a g e | 17

25. At this juncture, this Court reiterated that the said

direction of this Court is to be implemented in letter and spirit.

It is the say of the State Government that the State Government

is also trying its level best to tackle the problem by initiating war

against drugs programme. Let the State Government may do.

26. In a catena of decisions the Apex Court as well as

this Court held that it is imperative for the Courts to carefully

evaluate the facts of the case. The discretion must be exercised

on the basis of the available material and facts of the particular

case. In cases where the Court is of the considered view that

the accused has joined investigation and has fully co-operated

the investigating agency and is not likely to abscond, in that

event, custodial interrogation should be avoided. As stated

supra, in the present case, charge-sheet has already been filed

against the accused and accused no.2 is in custody from

4.6.2022. Nothing has been produced by the respondent to

show that if accused no.2 is released, he will tamper/hamper

the prosecution witnesses. In the absence of any such proof,

accused no.2 is entitled to bail.

27. While examining the parameters i.e., (i) the nature

and gravity of the accusation and the exact role of accused

Bail Appln. No. 19 of 2022 P a g e | 18

no.2; and (ii) the antecedents of accused no.2, including the

fact as to whether he was previously undergone imprisonment

on conviction to be taken into consideration for grant of bail, this

Courts finds that there is no clinching proof to connect accused

no.2 in the alleged crime and further nothing on record to show

that accused no.2 was previously convicted.

28. In the instant case, as stated supra, since charge-

sheet has been filed before the jurisdictional Court, it would be

appropriate to direct the trial Court to expedite the trial of the

case, for which accused no.2 is directed to co-operate the trial

Court.

29. In view of the foregoing discussions as well as law

laid down by the Hon'ble Supreme Court, the petitioner has

carved out a case for grant of bail to accused no.2.

30. Accordingly, Bail Application No.19 of 2022 is

allowed and accused no.2, namely, Ch. Konai Maring, son of

Modun Maring of Kambang Khunou Village, Chandel District is

ordered to be enlarged on bail in connection with the FIR

No.61(6)2022 registered under Section 21(c)/29 of ND & PS Act

on the file of City Police Station, Imphal West District, subject to

Bail Appln. No. 19 of 2022 P a g e | 19

accused no.2 furnishing a personal bond in the sum of

Rs.1,00,000/- (Rupees One Lakh) with two local sureties each

in the like sum to the satisfaction of the learned Special Judge,

Special Court (ND&PS), Manipur, Lamphelpat, with the

following conditions:

(i) Accused no.2 shall not leave the place of

his residence without permission of the

Court and shall ordinarily reside at a

place of his residence and the complete

address of such place shall be furnished

to the Special Judge, Special Court

(ND&PS), Manipur, Lamphelpat, at the

time of release.

(ii) Accused no.2 shall appear before the

respondent police daily at 10.00 a.m. for

a period of fifteen days and thereafter

shall appear before the learned Special

Judge, Special Court (ND&PS), Manipur,

Lamphelpat weekly once i.e. every

Monday at 10.30 a.m until further orders.

Bail Appln. No. 19 of 2022 P a g e | 20

(iii) If accused no.2 has passport, he shall

also surrender the same to the Special

Judge, Special Court (ND&PS), Manipur,

Lamphelpat.

(iv) Accused no.2 shall also report before the

Border Affairs Police Station on the first

Monday of every month at 10.00 A.M.

(v) Accused no.2 shall not indulge in any

criminal activities during the period of

suspension of sentence.

(vi) The Border Affairs Police is directed to

monitor accused no.2 and if they find

accused no.2 involved in any criminal

activities, the Border Affairs Police is at

liberty to bring it to the notice of this Court

through the Public Prosecutor.

(vii) Accuse no.2 shall not contact nor visit nor

threaten nor offer any inducement to any

of the prosecution witnesses.

Bail Appln. No. 19 of 2022 P a g e | 21

(viii) Accused no.2 shall not tamper with

evidence, nor otherwise indulge in any

act or omission that would prejudice the

proceedings in the matter.

(ix) Accused no.2is directed to co-operate

the trial court for early disposal of the

case.

                   (x)       Accused        no.2   shall   not   leave   the

                             jurisdiction of the Court.


                   (xi)      It is clarified that if accused no.2 misuses

the liberty or violate any of the conditions

imposed upon him, the prosecution shall

be free to move this Court for cancellation

of the bail.

(xii) The trial Court is directed to expedite the

trial and conclude the same within a

period of six months from the date of

receipt of a copy of this order.

(xiii) Any observations made hereinabove

shall not be construed to be a reflection

Bail Appln. No. 19 of 2022 P a g e | 22

on the merits of the case and shall remain