High Court of Meghalaya
Miss Nisha Chettri vs . State Of Meghalaya & Anr. on 14 February, 2024
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA. No. 1 of 2024
Date of Decision: 14.02.2024
Miss Nisha Chettri Vs. State of Meghalaya & Anr.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Ms. P. Chettri, Adv.
For the Respondent(s) : Mr. H. Kharmih, Addl. PP. with
Mr. K.P. Bhattacharjee, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT (ORAL)
1. Heard Ms. P. Chettri, learned counsel for the petitioner, who
has submitted that the petitioner has approached this Court with this
instant application for grant of bail in favour of Shri. Promod Chettri, who
was arrested on 03.05.2023 in connection with Nongpoh P.S. Case No.
51(5) 2023 under Section 21(b)/29 of the NDPS Act, 1985.
2. The learned counsel has also submitted that the charge sheet
have since been filed by the Investigating Officer and the matter is now
proceeding for trial before the Court of the learned Special Judge (NDPS),
Nongpoh, Ri-Bhoi District.
3. In course of trial, six prosecution witnesses have been
examined out of a total of nine witnesses. It is also the submission of the
learned counsel that the co-accused in the case has already been granted
bail by this Court vide order dated 16.11.2023. The learned counsel has
fairly submitted that on previous occasion, a bail application on behalf of
the said accused person has already been preferred before this Court,
which was duly rejected vide order dated 08.12.2023. However, there has
been a change in circumstances which was not noticed by the accused
person or the petitioner for the same to be brought to the notice of this
Court in the previous round of consideration of the said bail application.
4. The learned counsel has further submitted that records would
show that the Standing Order No. 1/1989 issued by the Government of
India on the aspect of sampling, testing and measurement of the recovered
alleged contraband substances have not been complied with by the
prosecution or the arresting authority and as such, the benefit of doubt
would go in favour of the accused person in question.
5. In this regard, the learned counsel has led this Court to page 30
of this application, wherein is found a copy of the weight and
measurement certificate as regard the manner in which the seized alleged
contraband substance was handled. The learned counsel has pointed out
that the date and time when the measurement was taken, was recorded as
3rd May, 2023 at 12:18 AM. As to the particulars and quantity of the
seized articles, it is indicated that:
"1) 1(one) Empty Transparent Plastic Bag Weighing about
09.26 grams.
2) 1(one) Transparent Plastic Bag containing suspected
heroin (The suspected heroin from the 4 few soap boxes
are emptied into one transparent plastic bag marked as
Ex-A). The weight of Plastic Bag & the suspected heroin
is about 55.73 grams.
3. The Net weight of the suspected heroin is about 46.47
grams."
6. Again, referring to the preliminary test report, copy of which is
annexed at page 32 of this application, the learned counsel has submitted
that the date and time when the test was conducted was 03/05/2023 at
12:25 AM. The process of such test is indicated as under:
"Brief of test process: A small amount of the suspected
Heroin is taken out from the Ex-A (after emptying the
suspected heroin from 4(four) soap Boxes into a Transparent
Plastic Bag marked as Ex-A) and place it on the spot-plate
provided in the kit, subsequently one drop of Reagent A-1 and
3(three) drops of Reagent A-2 are added to the suspected
heroin. After 2(two) minutes of the mixture turn into purple
colour which is positive for heroin (As indicated in the testing
methods provided in the kit)".
7. From the above, what could be understood is that the alleged
heroin seized was initially found in four containers, however, the contents
of all the four containers were deposited into one transparent plastic bag
(Ex-A) from which a sample is taken for testing, which according to the
preliminary test report, would show that the sample is positive for heroin.
8. The above process conducted by the arresting authority is
clearly in contravention of the said Standing Order No. 1/1989. Reference
is made to such Standing Order No. 1/89 at paras 2.3 and 2.4 which is
quoted as under:
"2.3. The quantity to be drawn in each sample for chemical
test shall not be less than 5 grams in respect of all narcotic
drugs and psychotropic substances save in the cases of opium,
ganja and charas (hashish) where a quantity of 24 grams in
each case is required for chemical test. The same quantities
shall be taken for the duplicate sample also. The seized drugs
in the packages/containers shall be well mixed to make it
homogeneous and representative before the sample (in
duplicate) is drawn.
2.4. In the case of seizure of a single package/container,
one sample in duplicate shall be drawn. Normally, it is
advisable to draw one sample (in duplicate) from each
package/container in case of seizure of more than one
package/container."
9. On this point, the learned counsel has submitted that the
Hon'ble High Court of Delhi in Bail Appln. No. 1133/2022 in the case of
Ginkala Meddilety v. The State, dealing with the impact of the said
Standing Order No. 1/1989 at paras 8, 9 and 10 of the same, had referred
to relevant authorities of the Hon'ble Supreme Court including the case of
Union of India v. Bal Mukund & Ors., (2009) 12 SCC 161, para 36.
Relevance to the facts of this case, according to the learned counsel for the
petitioner, is found at para 9 of the said order, which is reproduced herein
below:
"9. The Coordinate Bench in Laxman Thakur (supra) has
held that in terms of the Standing Order 1/88, transferring of
content of all packets into one and then drawing of samples
from the mixture is not permitted."
10. On being convinced with the cause of the faulty sampling
process, prejudice of which has been caused to the applicant therein, the
application for bail has accordingly been allowed.
11. Another contention raised by the learned counsel is that the
provision of the NDPS Act has not been complied with by the arresting
authority, wherein in the evidence of PW. 6 Shri. Dawanoo S.R. Lakiang,
who is the Officer-in-Charge of Nongpoh Police Station and accordingly,
the immediate superior officer of the complainant as well as another
officer present during the search and seizure, the said PW have admitted
that he was not informed in writing with regard to the arrest and seizure in
compliance with Section 57 of the NDPS Act.
12. In view of the aforesaid circumstances which had come to light
only recently, and which has materially affected the circumstances as
regard the accused person, the learned counsel has submitted that this
Court may be pleased to allow the accused person to be enlarged on bail
with any conditions to be imposed by this Court.
13. Per contra, Mr. H. Kharmih, learned Addl. PP appearing on
behalf of the State respondent, in opposition to the contention and
submission made by the learned counsel for the petitioner, has submitted
that this Court vide order dated 08.12.2023 passed in BA. No. 61 of 2023,
has rejected the prayer for bail as far as the accused person in question is
concerned, and in this present bail application, similar grounds has been
raised and as such, there is no material change of circumstances to enable
the petitioner to approach this Court with a fresh bail application.
14. The learned Addl. PP has also submitted that records would
show that there is evidence of the involvement of the accused person as
was deposed by the witnesses and as such, there are no valid grounds for
the petitioner to come before this Court with a prayer for grant of bail to
the accused person. This application is liable to be dismissed, further
submits the learned Addl. PP.
15. This Court, on consideration of the submission made by the
learned counsel for the respective parties, reference to the factual situation
has been duly noted hereinabove. What is required to be considered is
whether the petitioner has made out a case for grant of bail as far as the
accused person Shri. Promod Chettri is concerned.
16. It is to be noted that out of nine witnesses cited by the
prosecution, six of them have already been examined and as such, the case
is at the fag end of its conclusion. It is too premature at this point of time
to say as to whether the accused person is innocent or guilty of the offence
charged against him. However, on the contention of the learned counsel
for the petitioner that because of a breach as far as the process of sampling
of the seized contraband substance is concerned, wherein the Standing
Order referred to hereinabove, has not been complied with in its entirety,
the issue is subjected to scrutiny before the Trial Court. However, prima
facie, it appears that there has occurred such irregularity which has caused
prejudice to the accused person.
17. The case of Ginkala Meddilety (supra), particularly the
reference to para 9 duly reproduced hereinabove, the same is found
acceptable by this Court.
18. Without any further discussion on the other points raised by
the learned counsel for the petitioner, more so, on consideration of the fact
that the accused person has been in custody for a long time, this Court, at
this point, would deem it proper to allow the prayer made.
19. Accordingly, the accused person Shri. Promod Chettri is
hereby directed to be released on bail on the conditions that:
i) He shall not abscond or tamper with the evidence and
witnesses;
ii) He shall not leave the jurisdiction of the State of
Meghalaya without prior permission of the court;
iii) He shall appear before the court concerned as and when
required;
iv) He shall bind himself on a personal bond of ₹ 30,000/-
(Rupees thirty thousand) only with one surety of like
amount to the satisfaction of the Trial Court.
20. As observed above, this application is accordingly disposed of.
No costs.
Judge
Meghalaya
14.02.2024
"D. Nary, PS"
