Gauhati High Court
Page No.# 1/6 vs The State Of Assam And Anr on 10 September, 2024
Page No.# 1/6
GAHC010241272023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3904/2023
LALROHLU HMAR @ LALRUHLU HMAR AND ANR
S/O LALTLANTHANG HMAR,
RESIDENT OF VILLAGE GAMNOM VENG, BIDNA PART III, SUB DIVISION
TENGNOUPAL, PO AND PS MOREH, DIST TENGNOUPAL, MANIPUR
2: S. THANGKHANLAL HAOKIP
S/O LHUNKHOMANG HAOKIP
RESIDENT OF VILLAGE NEW LEIKAT
SUB DIV. TENGNOUPAL
PO AND PS MOREH
DIST TENGNOUPAL
MANIPUR
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY DIRECTORATE OF REVENUE INTELLIGENCE
Advocate for the Petitioner : MR A BASUMATARY, MR. N J DUTTA,MR N AHMED
Advocate for the Respondent : SC, DRI,
BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
10.09.2024
Heard Mr N J Dutta, learned counsel for the petitioners, 1) Lalrohlu Hmar @
Lalruhlu Hmar and 2) S. Thangkhanlal Haokip, who have filed this application under
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Section 439 CrPC, with prayer for prayer for bail as they are behind bars since
22.11.2022, in connection with NDPS Case No. 59 of 2023, arising out of DRI Case No.
19/CL/ NDPS/HEROIN/DRI/GZU/2022-23, dated 22/11/2022, under Sections
8(c)/22/23/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS, for
short).
2. Heard Ms M Deka, learned counsel appearing on behalf of learned Standing
Counsel, DRI, Mr S C Keyal.
3. It is submitted on behalf of the petitioners that the petitioners have been behind bars
for more than 2 ½ years since 22.11.2022. 10 witnesses are enlisted in the charge sheet
and despite the prolonged incarceration of the petitioners, only one witness out of 10
witnesses have been examined.
4. Learned counsel for the petitioners laid stress in his argument that as Section 52-A
of the NDPS Act was not complied with, the petitioners are entitled to bail. The Case
Diary as well as the offence report reveals that 60 soap cases were recovered and
samples were drawn from only one box. How could the investigating team assume that
samples of one box will be similar to the samples of the other boxes.
5. Learned counsel for the petitioners has relied on the decision of Hon’ble the
Supreme Court in Nitish Adhikari @ Bapan -Vs- The State of West Bengal, in
connection with Special Leave to Appeal (Criminal) No. 5679/2022, wherein vide order
dated 01.08.2022, the Hon’ble Supeme Court granted bail to the appellant, Nitish
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Adhikari @ Bapan, who was behind bars for 1 year 7 months, observing that the
appellant was behind bars for a prolonged period and trial is at the preliminary stage.
6. In the instant case, the present petitioners have been behind bars for 1 year 9
months.
7. The petitioners have also relied on the decision of a Division Bench of this Court in
Pinak Sankar Basu -Vs- The State of Assam and Another, in connection with Criminal
Appeal (Jail) No. 84/2020, wherein vide order dated 19.07.2024, it has been observed
that-
“39. It is a well settled proposition that if a manner of doing a
particular act is prescribed, then the act must be done in that manner and
in no other manner. The Notification no. G.S.R.38[E] dated 16.01.2015
mandated preparation and certification of the inventory in a particular
manner and in a prescribed format. Absence of any certification by the
Magistrate of the inventory in the prescribed manner stands in clear
violation of the statutorily prescribed mode.
40. As per the Notification no. S.O.527[E] dated 16.07.1996 issued in
exercise of the powers conferred by clauses [viii] and [xxiiia] of Section 2 of
the NDPS Act, 1985, a quantity of Cannabis [Ganja] equal to or above 20 kg
is commercial quantity. Section 20 of the NDPS Act, 1985 has prescribed
for punishment in relation to cannabis plant and cannabis. As per Section
20[b][ii][C], if the quantity involves is commercial quantity, the convict is
punishable with rigorous imprisonment for a term which shall not be less
than ten years but which may extend to twenty years and shall also be
liable to fine which shall not be less than one lakh rupees but which may
extend to two lakh rupees. Since the offences under the NDPS Act, 1985
are serious in nature and prescribe stringent punishment, compliance with
statutory prescriptions and procedures shall also have to be strict and
Page No.# 4/6scrutiny is also stringent. The statute mandates that the prosecution must
prove strict compliance. If there is any kind of doubt, the benefit shall
have to be given to the accused.”
8. The learned counsel Ms M Deka has submitted that on 31.08.2023, the witnesses
were present, but the witnesses were not examined. Thereafter, 5 or 6 dates were fixed
for evidence and on 19.07.2024, two witnesses were present, but only one witness was
examined. The learned counsel for the respondent has relied on the decision of Hon’ble
the Supreme Court in State of Meghalaya -Vs- Lalrintluanga Sailo and Another,
reported in 2024 0 INSC 537 wherein it has been held and observed that-
“7. In the decision in State of Kerala and Ors. v. Rajesh and Others;
(2020) 12 SCC 122, after reiterating the broad parameters laid down by
this Court to be followed while considering an application for bail
moved by an accused involved in offences under the NDPS Act, in
paragraph 18 thereof this Court held that the scheme of Section 37 of
the NDPS Act would reveal that the exercise of power to grant bail in
such cases is not only subject to the limitations contained under
Section 439 of the Code of Criminal Procedure, but also subject to the
limitation placed by Section 37(1)(b)(ii), NDPS Act. Further it was held
that in case one of the two conditions thereunder is not satisfied the
ban for granting bail would operate.
8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and the
decisions referred supra revealing the consistent view of this Court that
while considering the application for bail made by an accused involved
in an offence under NDPS Act a liberal approach ignoring the mandate
under Section 37 of the NDPS Act is impermissible. Recording a finding
mandated under Section 37 of the NDPS Act, which is sine qua non for
granting bail to an accused under the NDPS Act cannot be avoided
while passing orders on such applications.”
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9. The respondent has also relied on the decision of this Court, in Vinod Bijarnia. –
Vs- The Union of India, wherein vide order dated 20.05.2024, passed in Bail
Application No. 1105/2024, it has been observed that-
“15. In view of decision of Hon’ble Supreme Court in Union of India vs.
Ajay Kumar Singh @ Pappu, Criminal Appeal No. 952 OF 2023 [Arising out of
SLP (CRL.) No.2351 OF 2023], decided on 28 March, 2023, reiterated that the
accused involving in commercial quantity of contraband substance has to
satisfy the twin requirement of section 37 of NDPS Act before granting bail in
the following words:-
“In view of the above provisions, it is implicit that no person
accused of an offence involving trade in commercial quantity of
narcotics is liable to be released on bail unless the court is satisfied
that there are reasonable grounds for believing that he is not guilty of
such an offence and that he is not likely to commit any offence while on
bail.”
10. It is further submitted on behalf of the respondent that the appellant is a history
sheeter and he is not entitled to bail. There is every likelihood that the appellant will
repeat the offence.
11. I have scrutinized the Trial Court Record.
12. The order dated 23.11.2022, passed by the learned CJM, reveals that the inventory,
seizure list under Section 42/43 of the NDPS Act, photographs, panchnama and notice
under Section 50 of the CrPC, has been perused by the learned CJM. Learned Special
Judicial Magistrate was entrusted to draw the samples of the seized drug and to certify
the correctness of the inventory. The order dated 01.12.2022, reflects that the Special
Judicial Magistrate First Class was present during the drawing of the samples.
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13. At this juncture, this Court is hesitant to get into the details how the samples were
drawn. The intricacies of the evidence are to be dealt with by the trial Court. The charge
sheet has been laid and charges have been framed against the petitioners for possession
of 792.35 grams of heroin.
14. It is true that trial has been dragging on a leaden feet, but at the same time, at this
juncture, it cannot be decided conclusively that Section 52-A of the NDPS Act has not
been complied with. At this juncture, it cannot be conclusively decided that there is
every scope of acquittal. The petitioners’ conduct has also procrastinated the trial. A
balance has to be struck while dealing with the bail application.
15. Considering the submissions at the Bar, at this juncture, I am hesitant to allow the
bail petition.
16. Petition is rejected at this stage of trial. The learned trial Court is directed to
expedite the trial for the speedy disposal of this case.
JUDGE
Comparing Assistant