High Court of Meghalaya
Smti. Lakyntiewrisha Nongrum vs . State Of Meghalaya & Anr. on 16 February, 2024
Author: W. Diengdoh
Bench: W. Diengdoh
Serial Nos. 02-05
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA. No. 2 of 2024 with
BA. No. 3 of 2024
BA. No. 4 of 2024
BA. No. 5 of 2024
Date of Decision: 16.02.2024
Smti. Lakyntiewrisha Nongrum Vs. State of Meghalaya & Anr.
Shri. Ferdinand Maiong Vs. State of Meghalaya & Anr.
Smti. Jennifer Sweety Vs. State of Meghalaya & Anr.
Smti. Ritalis Suphai Vs. State of Meghalaya & Anr.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. R. Gurung, Adv.
Mr. J. Thabah, Adv.
For the Respondent(s) : Mrs. T. Yangi. B, AAG. with
Ms. Z.E. Nongkynrih, GA.
Mr. H. Kharmih, Addl. PP.
Mr. E.R. Chyne, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
COMMON ORDER (ORAL)
1. These batch of bail applications involving similar and identical
facts and questions are proposed to be disposed of by this common order.
2. Heard Mr. R. Gurung, learned counsel for the petitioners, who
has submitted that an FIR dated 02.05.2023 was lodged before the
Officer-in-Charge, Nongpoh Police Station, Ri-Bhoi District, wherein the
informant, who is a police official of the Byrnihat Outpost, Ri-Bhoi
District has stated that on 01.05.2023, at about 7:30 pm, on receipt of
reliable information, a Naka checking was conducted and accordingly,
one vehicle (Local Taxi) bearing registration No. ML 10 C 4908 was
intercepted at Umling check gate.
3. On a search and seizure being made, the alleged contraband
substance was found from the dashboard of the said Local Taxi, wherein
four persons who are said to be passengers of the Local Taxi are suspected
to be in possession of the contraband substance which substance on being
tested, would reveal that it contain heroin. The weight of the suspected
drug is 9.64 grams. Accordingly, on investigation being launched, the said
four passengers were arrested.
4. In due course, charge sheet was filed by the Investigating
Officer, who has found that a prima facie case is well founded to proceed
against the said accused persons under the relevant provisions of the
Narcotic Drugs and Psychotropic Substances Act, 1985, particularly
Section 21(b)/29.
5. The case is now at the stage of evidence where one witness,
out of the total nine witnesses cited, has been examined.
6. The learned counsel has submitted that the seizure of the
alleged drugs was found from the dashboard of the Local Taxi, and as
such, it cannot be presumed that it was found from the possession of the
accused persons.
7. Reference to the applicability of Section 54 of the NDPS Act
was made with the case of Sanjeet Kumar Singh alias Munna Kumar
Singh v. State of Chhattisgarh being cited in this regard, the same reported
in 2022 SCC OnLine SC 1117, wherein at para 34 of the same, the
Hon'ble Supreme Court has observed as follows:
"34. It is true that Section 54 of the Act raises a
presumption and the burden shifts on the accused to
explain as to how he came into possession of the
contraband. But to raise the presumption under
Section 54 of the Act, it must first be established that a
recovery was made from the accused. The moment a
doubt is cast upon the most fundamental aspect,
namely the search and seizure, the appellant, in our
considered opinion will also be entitled to the same
benefit as given by the Special Court to the co-
accused."
8. The next point of contention raised by the learned counsel for
the petitioners is that the alleged seized contraband drugs, though
indicated as intermediate quantity, is actually not so, but in fact, it should
be noted as small quantity. In support of his contention, the learned
counsel has led this Court to the report of the Forensic Science Laboratory
examination of the seized contraband drugs, wherein out of a sample of
5.6664 grams, when tested, it gave a positive test for the presence of
diacetylmorphine, the percentage of which comes to 17.5764%. It is the
contention of the learned counsel for the petitioners that 17.5764% of the
9.64 grams seized, would reveal that the actual quantity of heroin seized
would be 1.69 grams.
9. Considering the fact that the accused persons in question are
young persons in the age group of 20 to 30 years, some of them are 26 and
some of them are 22, and also the fact that they have been in custody for
about 9(nine) months or so, it is prayed that this Court may be pleased to
allow these applications and to grant the prayer for enlargement of bail
with any conditions as deemed fit and proper to be imposed by this Court.
10. Per Contra, Mrs. T. Yangi. B, learned AAG appearing for the
State respondents, has submitted that the fact that the contraband
substance i.e. heroin was seized from the Local Taxi, in which the accused
persons were travelling and also found not only from the dashboard, but
also from the backseat of the said vehicle, it can simply be presumed that
that the accused persons were in possession of the said contraband
substances.
11. It is also submitted that in course of investigation, all the
accused persons have admitted, firstly, to have been consumers of drugs
and also dealing in the area of peddling of such drugs. In such
circumstances, if the accused persons in question are allowed to be
enlarged on bail, there is always the possibility that they will resume their
activity in consumption of drugs and more dangerously, in peddling of
drugs, which would pose a threat to societal interest. It is therefore prayed
that these applications are devoid of merits and the same are liable to be
dismissed.
12. This Court has considered the submission made and is of the
view that since the matter is proceeding for trial, any reference to the
factual and evidentiary process would not be proper at this stage.
However, suffice it to say that upon investigation, the Investigating
Officer has found enough evidence to compel the accused persons to stand
trial and as such, the accused persons have to face the trial till its
conclusion. As to the contention as regard the issue of presumption as
pointed out, and the authority cited in this regard, this Court feels that it is
too premature at this stage to come to any conclusion on such issue.
13. The contention that the seized drug is of small quantity, the
same based on the authority in the case of E. Micheal Raj v. Intelligence
Officer, Narcotic Control Bureau, wherein it was held that in the mixture
of narcotic drug or psychotropic substance with one or more neutral
substance(s), the quantity of neutral substance(s) is not to be taken into
consideration while determining the small or commercial quantity of the
narcotic drug or psychotropic substance - It is only the actual content by
weight of the offending drug which is relevant for the purpose of
determining whether it would constitute small quantity or commercial
quantity. This argument is however not tenable in the light of the Apex
Court judgment in the case of Hira Singh and another v. Union of India
and another reported in (2020) 20 SCC 272, wherein at para 12.1 and 12.2
of the same, the Apex Court has observed that:
"12.1. The decision of this Court in the case of E.
Micheal Raj v. Narcotics Control Bureau, (2008) 5
SCC 161 taking the view that in the mixture of narcotic
drugs or psychotropic substance with one or more
neutral substance(s), the quantity of the neutral
substance(s) is not to be taken into consideration while
determining the small quantity or commercial quantity
of a narcotic drug or psychotropic substance and only
the actual content by weight of the offending narcotic
drug which is relevant for the purpose of determining
whether it would constitute small quantity or
commercial quantity, is not a good law.
12.2. In case of seizure of mixture of Narcotic Drugs
or Psychotropic Substances with one or more neutral
substance(s), the quantity of neutral substance(s) is not
to be excluded and to be taken into consideration
along with actual content by weight of the offending
drug, while determining the "small or commercial
quantity" of the Narcotic Drugs or Psychotropic
Substances."
14. Considering the fact that the accused persons have been in
custody for quite some time, and also the fact that investigation has been
completed, the charge sheet having been filed and evidence is ongoing,
only one out of nine witnesses having been examined so far, the
possibility of the trial being concluded within a short span of time from
date is remote.
15. It is also to be noted that as far as bail is concerned, the only
assurance that the Court would seek would be that the accused persons
should not abscond and that he/she should cooperated with the trial in this
regard. Reference can be made to the case of Sanjay Chandra v. CBI
reported in (2012) 1 SCC 40 at para 21, wherein the Hon'ble Supreme
Court has observed that: -
"21. In bail application, generally, it has been laid
down from the earliest times that the object of bail is to
secure the appearance of the accused person at his
trial by reasonable amount of bail. The object of bail is
neither punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless it is
required to ensure that an accused person will stand
his trial when called upon. The courts owe more than
verbal respect to the principle that punishment begins
after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty."
16. On the overall consideration of the matter, this Court is
inclined to allow the prayer made.
17. The accused persons are accordingly directed to be released on
bail on the following conditions that:
i) They shall not abscond or tamper with the evidence and
witnesses;
ii) They shall not leave the jurisdiction of the State of
Meghalaya without prior permission of the court;
iii) They shall appear before the court concerned as and
when required;
iv) They shall cooperate with the trial during pendency of
the case;
v) They shall bind themselves on a personal bond of ₹
50,000/- (Rupees fifty thousand) each with one surety of
like amount to the satisfaction of the Trial Court.
18. As observed above, these set of bail applications are
accordingly disposed of. No costs.
Judge
Meghalaya
16.02.2024
"D. Nary, PS"
