BA/50/2024 of LILY MAWII Vs STATE OF MEGHALAYA AND 2 ORS. on 19 September 2024

1. State of MeghalayaRepresented by Ministry of Home Government of Meghalaya, Shillong.

2. Superintendent of PoliceEast Jaintia Hills,Meghalaya.East Jaintia Hills,Meghalaya.

3. Officer-In-Charge,Khliehriat Police Station,East Jaintia Hills,Meghalaya.

:::::

Respondents

Coram:

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Petitioner/Appellant(s): Mr. R. Sharon, Adv.For the Respondent(s): Mr. K. Khan, PP. withMr. S. Sengupta, Addl. PP.Ms. A. Thungwa, GA.

ORDER (ORAL)

1. Heard Mr. R. Sharon, learned counsel for the petitioner, whohas submitted that this is a case of complete injustice meted out to theaccused Uncle of the petitioner who was arrested on 18.07.2023 inconnection with Khliehriat P.S case No. 45(6) of 2023 u/s 21(c)/29 of theNDPS Act, 1985, now registered as Spl. NDPS Case No. 37 of 2023,pending trial before the Court of the learned Special Judge (NDPS) atKhliehriat, East Jaintia Hills District.

2. The learned counsel has submitted that in this case, fourpersons, including himself were arrested, one of them being his wife. Thefact is that the accused Uncle of the petitioner was not present when theinitial arrest of the main accused person was made, however, when thepolice came to apprehend him, his wife was also arrested and a mobilephone was seized from her possession. The accused person in questionhas no mobile phone and no incriminating materials or contraband wasseized from him, therefore, being innocent, he was unnecessarily arrested in connection with the said Khliehriat P.S Case.

3. The name of the accused person in question was not found inthe FIR and the Panchnama was also prepared without any revelation ofhis involvement, more importantly, his statement either under Section161 or 164 Cr.P.C. or even under Section 67 of the NDPS Act, have alsonot been recorded, further submits the learned counsel.

4. It is also the submission of the learned counsel that no case ismade out against the accused person in question, except for the fact thathis wife is well known to one of the co-accused person, Smti. Ngai RamiSimte, since they are from the same village and they used tocommunicate very often, especially in view of the prevailing situation inthe State of Manipur, as such, the mobile number of the said co-accusedwas found in the mobile phone of the accused Uncle of the petitioner.

5. The learned counsel has reiterated that the accused person inquestion has no connection with the alleged offence said to have beencommitted by the main accused who was arrested on the said contrabandsubstance recovered from his possession. In fact, in the cross-examination of the PW-1, the police officer who has lodged the FIR andwho was also present when the main accused person Shri. Shokhothang Touthang was arrested, this witness has stated that he does not know themobile number of the accused person Shri. Khailien Haokip (the accusedperson in question), nor did he know whether the I/O has recorded thestatement of this accused person and his wife under Section 67 of theNDPS Act. Therefore, there is no basis or ground for the accused personto be charged under Section 29 of the NDPS Act.

6. The learned counsel has made an impassionate plea on behalfof the accused person in question to say that he has five minor children,who are left without shelter as their house was destroyed by thunderstormand incessant rainfall and as such, if allowed to go on bail, he willcomply with any conditions as deemed fit to be imposed by this Court.

7. Mr. K. Khan, learned P.P appearing on behalf of the Staterespondents has submitted that on perusal of the case dairy (C.D), copyof which is produced before this Court, from the statement made by themain accused person who is not before this Court, and who was thecarrier of the contraband substance, the link between this accused andthe accused person in question has been established, inasmuch as, it wasthe accused person in question who has arranged for the transportation ofthe said contraband when he has instructed the said main accused personto hand over the bag containing the said contraband to the other co- accused person in this case i.e. Smti. Ngai Rami Simte. Even thestatement given by the said co-accused person Smti. Ngai Rami Simte,would show that she was informed by the accused person in question i.e.Shri. Khailien Haokip to expect a parcel through one person whose nameis not known to her.

8. The learned PP has therefore sought to impress upon thisCourt that the chain of circumstances has clearly placed the accusedperson in question to be one of the main players in the supply andtransportation of the seized contraband. Therefore, to say that theprovision of Section 29 NDPS Act will not be applicable in this case isfar from the truth. This application being devoid of merit, is liable to bedismissed, submits the learned PP.

9. This Court has assessed and carefully considered thesubmission made by the learned counsels for the parties and have alsoperused the C.D. On going through the contents of the same, what can besaid is that the contention of the learned counsel for the petitioner that theaccused person in question Shri. Khailien Haokip is not at all involved inthe whole incident concerning the said apprehension and seizure of thecontraband substance from the possession of the main accused Shri.Shokhothang Touthang is not correct, even, if the assertion that he was implicated only on the basis of the phone number of the said accusedperson as well as the other co-accused person Smti. Ngai Rami Simtebeing found in the mobile phone of his wife, who incidentally has alsobeen arrested in this case, thereby, indicating that he cannot be implicatedin the case since he is not having any mobile phone of his own and is noteven aware of the name or even the existence of the said main accusedperson, which assertion is contrary to what has been recorded in the C.D.10.This Court has gone through the statement made by the mainaccused Shri. Shokhothang Touthang, who has narrated that it was theaccused person in question who had arranged for him to go to Shillongon the pretext that there is construction work at Shillong and he had alsogiven him (the main accused) one black airbag, from which airbag thiscontraband substance was seized by the police at the place of occurrence.In fact, the accused person in question, in his statement before the policerecorded on 11.09.2023 had also confirmed that he had arranged for themain accused to proceed to Shillong and had persuaded him to take theconsignment to Shillong through Aizawl and had directed him to handover the said consignment to Smti. Ngai Rami Simte, of course, on thepromise that he would be paid a good sum of money for such service.The accused person in question has also stated that he had lost his mobile

phone and could not contact Smti. Ngai Rami Simte as he could notremember her contact number. This would only prove that he was inpossession of a mobile phone.

11. In view of such testamentary evidence, though the same isrequired to be tested in course of trial, suffice it to say that prima facie,the presumption that the accused person in question is involved in thewhole operation cannot be ruled out at this point of time.

12. Though filing of the charge sheet cannot be a bar for grant ofbail, it must not be forgotten that even though the cardinal principle ofbail jurisprudence is “bail and not jail”, facts and circumstances of aparticular case has to be taken into account to consider the nature andgravity of the offence involved, the evidence against the personconcerned, the likelihood of his or her absconding, if enlarged on bail andother related factors.

13. It is also to be noted that the offence herein involves Section21(c) of the NDPS Act which speaks of a seizure of commercial quantityof contraband substance, therefore, the rigors of Section 37 of the NDPSAct is attracted as far as the case involving the accused person inquestion is involved even though he is charged under Section 29 of the said Act.

14. It is on record that the accused Uncle of the petitioner is notonly involved in this single case, but has also been implicated in anothercase, also under the various sections of the NDPS Act. The fact that he isa resident of the State of Manipur, though not a bar, but in the light of hisalleged involvement in the case, there is a likelihood of him being a flightrisk. The most important aspect of the matter that has weigh heavily uponthis Court is the gravity and nature of the crime in question, that is, theimpact of the effect of drug addiction as a result of such contrabandsubstance being easily available in this State. The alarming situationcould not, but be termed as one of a very serious nature for which incases of this kind, the court has to balance the consideration of privaterights and liberty vis-à-vis societal protection and interest.

15. Under the circumstances cited above, at this juncture, thisCourt is of the view that the petitioner has not been able to make out acase for grant of bail as far as the accused in question is concerned.

16. Accordingly, this Court finds that this application is devoid ofmerits and the same is hereby dismissed.

17. Matter disposed of. No costs.

Judge