BA/70/2024 of JENEL D. SANGMA AND 2 ORS. Vs STATE OF MEGHALAYA on 4 November 2024

1. Sri. Jenel D. Sangma,

S/o Sri. Krosdingwel Marngar,

R/o Vill Nongkriah,

P.O. Dangar P.S. Mawsynram.

2. Sri. Somison Sangma,S/o Sri. Sten Sangma,R/o Vill Nongkriah, P.O. Dangar P.S. Mawsynram.

3. Sri. Gopal Barman,S/o Sri. Dines Barman,R/o Vill Nongkriah,S/o Sri. Dines Barman,R/o Vill Nongkriah, P.O. Dangar P.S. Mawsynram.

…… Accused/Petitioners

-Vs-

State of Meghalaya represented

By Public Prosecutor.

…… Respondents

Coram:

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Petitioner/Appellant(s)For the Respondent(s)

:

Mr. P.K. Borah, Adv.

:

Mrs. T. Yangi. B, AAG. with

JUDGMENT (ORAL)

1. It is the case of the petitioners that on 19.01.2024, while theywere proceeding towards Ranikor by two Motor Bikes, they wereintercepted at the Ranikor Bridge by some BSF personnel. After quitesome time, the police along with two Magistrates came to the place ofincident, and on search and seizure being made, some allegedcontraband narcotic substance (Yaba tablets) were seized from thepossession of one of the petitioners namely, Sri. Jenel D. Sangma.

2. Accordingly, an FIR was lodged by Shri. Irfan BashirMagrey, Assistant Commandant, 193 Bn, BSF and the three accusedpersons/petitioners were arrested and detained in custody in connectionwith a Crl.Case registered as Ranikor P.S. Case No. 3 (01) 2024 underSection 22(c)/29 NDPS Act.

3. After investigation is completed, the charge sheet was filedby the Investigating Officer (I/O) with an observation that a prima faciecase is found well-established against the accused persons/petitionersunder Section 22(c)/29 NDPS Act and a regular case being Crl.NDPSCase No. 3/2024 is pending before the Court of the learned SpecialJudge (NDPS), South West Khasi Hills District, Mawkyrwat. Till date,three witnesses have been examined as prosecution witnesses.

4. Mr. P.K. Borah, learned counsel appearing on behalf of the accused persons/petitioners has submitted that this application underSection 437/439 Cr.P.C read with Section 37 of the NDPS Act has beenfiled with a prayer for grant of bail, firstly, on the ground that in courseof their arrest, the manner in which the seizure was made from thepetitioners is found to be illegal and irregular, inasmuch as, theprocedure as prescribed under Section 42(2) of the NDPS Act has notbeen complied with since the search and seizure was not made by anempowered officer.

5. Secondly, the learned counsel has submitted that thepetitioners are young men and they are also local residents of the areawith no criminal antecedent and also being vouched for by the headman of the village as far as their character is concerned, and, if enlarged onbail, they will fully cooperate with the trial and will not abscond or getinvolved in any manner so as to intimidate witnesses or to tamper withthe evidence.

6. As regard the provision of Section 42, the learned counselhas cited the case of State of Punjab v. Balbir Singh reported in (1994)3 SCC 299, para 25 (2-C) and (4-A).

7. Per contra, Mrs. T. Yangi. B, learned AAG assisted by Mr.E.R. Chyne, learned GA appearing on behalf of the State respondent hasvehemently opposed the prayer made by the learned counsel for thepetitioners, and has submitted that this is a case involving seizure ofnarcotic drugs, and as such, being of commercial quantity, the rigors ofSection 37 of the NDPS Act would apply even at this stage when aprayer for grant of bail is made. As to what the provision of Section 37entails, the learned AAG has cited the case of Union of India v. AjayKumar Singh alias Pappu reported in 2023 SCC OnLine SC 346,wherein at para 14, 16 and 17, the Hon’ble Supreme Court has restatedthe principles for consideration of bail where Section 37 of the NDPSAct is involved, and has contended that the petitioners having failed to

satisfy this Court that they are innocent of the offence alleged againstthem and also that no commitment can be given that they will not repeatthe offence, if enlarged on bail. Therefore, this Court may not enlargedthe petitioners on bail at this stage, further submits the learned AAG.

8. The learned AAG has also refuted the contention of thelearned counsel for the petitioners as far as the issue of non-complianceof Section 42(2) is concerned, and has submitted that the issue will bethe subject matter of the trial, inasmuch as, it would be incumbent uponthe Trial Court to appreciate the evidence in this regard to come to afinding as to whether the provision of Section 42(2) of the NDPS Acthas been complied with or not.

9. As far as the consideration of bail on this ground isconcerned, the learned AAG has submitted that the Hon’ble High Courtof Punjab and Haryana in the case of Mandeep Kaur v. State of Punjabin an order dated 25.07.2022 passed in CRM-M-27760-2021 at para 23had cited the case of Union of India through Narcotics Control Bureau,Lucknow v. Md. Nawaz Khan reported in (2021) 10 SCC 100 , whereinthe Apex Court has categorically held that at the time of grant of bail, thequestion as regards compliance or non-compliance of Section 42 of the Act is not strictly required to be gone into as the same is a matter, whichwould be best left to be adjudicated at the time of trial.

10. In the facts and circumstances of this instant case, the learnedAAG has submitted that the petitioners does not have a case for grant ofbail and this petition may be dismissed as devoid of merits.

11. This Court has given considerable thought to the argumentsof the learned counsels for the respective parties and has perused thepetition as well as the authorities cited.

12. The fact that the petitioners has been arrested in connectionwith a case under the NDPS Act for allegedly being in possession ofcontraband substance which is of commercial quantity, therefore, thecharge against them punishable under Section 22(c) of the NDPS Actwill have to be proved in course of trial. There is however prima facieevidence that the trio are involved in such offence alleged against them.This being the case, for consideration of a prayer made for grant of bail,the provision of Section 37 of the Act has to be taken into account.

13. As has been pointed out by the learned AAG in the case ofAjay Kumar Singh (supra), the Hon’ble Supreme Court at para 16 of thesame has observed as follows:

“16.In view of the above provisions, it is implicitthat no person accused of an offence involving tradein commercial quantity of narcotics is liable to bereleased on bail unless the court is satisfied that thereare reasonable grounds for believing that the is notguilty of such an offence and that he is not likely tocommit any offence while on bail.”

14. This Court is in agreement with such contention and the

authorities cited, and based on the materials on record including theevidence of PW. 1 and PW. 2, who have categorically identified theaccused persons/petitioners as the perpetrators of the crime, copies ofwhich have been produced before this Court by the learned counsel forthe petitioners, there is no doubt that this Court would believe that theaccused persons/petitioners are not guilty of the offence alleged and alsothat they may not repeat the offence, if enlarged on bail.

15. As to the question raised as far as the applicability or rather non-applicability of Section 42(2) of the Act to the case of thepetitioners at the time when they were arrested, this Court is alsoinclined to the contention of the learned AAG in this regard and is in respectful agreement with the observations made by the Hon’ble HighCourt of Punjab and Haryana in the case of Mandeep Kaur (supra) atpara 23. It is also the opinion of this Court that this issue can only belooked into and decided by the Trial Court in due course, the samecannot be the ground for consideration of bail or otherwise.

16. In view of the observations made herein above, this petitionis found to be devoid of merits and the same is accordingly dismissed.

17. Matter disposed of. No costs.

Judge