BA/69/2024 of M. THANGCHINKHAM GUITE Vs STATE OF MEGHALAYA on 27 September 2024

1. State of Meghalaya represent byThe Learned Public prosecutor

..….Respondent

Coram:

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Petitioner/Appellant(s): Mr. T.L. Jyrwa, Adv.

For the Respondent(s): Mr. K. Khan, P.P

Mr. S. Sengupta, Addl. P.P

Mr. H. Kharmih, Addl. P.P

i) Whether approved for reporting in Yes/No Law journals etc.:

ii) Whether approved for publication

in press:

Yes/No

ORDER (ORAL)

1. This is an application preferred under Section 483 of the BNSSread with Section 37 of the NDPS, 1985, for grant of bail on behalf ofthe accused person Shri. M. Tuanbiaklian who was arrested inconnection with Khliehriat P.S. Case No. 48(6) 2023 under Section21(C)/29 NDPS Act, now registered as Special (NDPS) Case No. 27 of2023 pending trial before the court of the learned Special Judge(NDPS) at Khliehriat, East Jaintia Hills District.

2. The background facts of the case is that on 19.06.2023 the policeafter receiving a confidential source information that certain personsare involved in the transit of illegal narcotic substance, a check pointwas erected to intercept the suspected vehicle and accordingly in theprocess, one Tata Winger bearing registration No. NL-07T-0815 withthe driver and another occupant was intercepted at BMS Fuel Station,Nongsning Village NH-6.

3. On a search being conducted, from the said vehicle about 200soap cases containing yellowish orange powder were found concealedin various hidden compartments. Sample of such powder was tested onthe spot the result of the test gave a positive for heroin. Accordingly,the two suspects namely Shri. Imliakum Longkumer and Shri. M.Tuanbiaklian Guite, who are occupants of the vehicle were arrested anda police case was registered as Khliehriat P.S. Case No. 48(6) 2023under Section 21(C)/29 NDPS Act.

4. The investigation conducted in this regard, on being completed, the Investigating Officer has filed the charge sheet dated 06.09.2023with a finding that a prima facie case under Section 21(c)/29 NDPS isfound well established against the above named accused persons andalso against another co-accused named Shri. Jahangir Alom. Theaccused persons are directed to stand trial before the court of thelearned Special Judge (NDPS) at Khliehriat.

5. Mr. T.L. Jyrwa, learned counsel for the petitioner has submittedthat this instant petition is preferred by the father of the accused personShri. M. Tuanbiaklian Guite.

6. It is the submission of the learned counsel that the accusedperson in question is innocent and has no involvement at all in regardto the alleged offence. He just happened to be a passenger of the saidvehicle which is a commercial vehicle, on his way to Guwahati wherehis minor children are presently residing. Therefore, having noknowledge of the presence of the seized contraband, he cannot beaccused of even having conscious possession of the same.

7. In this regard, the learned counsel has referred to Section 35 ofthe NDPS Act to say that the provision envisaged a situation that in acase of prosecution under the NDPS Act, the culpable mental state ofthe accused, which imply intention, motive or knowledge of a fact hasto be believed by the court beyond reasonable doubt, the onus of whichlies with the accused, which in this case has been ably discharged bythe accused since no connection can be established to implicate himwith the seizure made. In fact, even if a perusal of the evidence of theprosecution witnesses is made, there is nothing to show or prove that the accused person is at all involved in the case.

8. To buttress this point, the learned counsel has cited the case ofKishore Bira v. State of Odisha wherein at para 10 of the order dated11.07.2022 passed in BLAPL No. 9629 of 2021 the Hon’ble HighCourt of Orissa has cited the case of Sorabkhan Ghandhkhan Pathan &Anr. v. State of Gujarat [(2004) 13 SCC 608], wherein the Hon’bleSupreme Court in essence, has observed that without any proof that theaccused has any knowledge or is conniving with the co-accused incarrying the contraband, absence of any such material cannot be aground to convict the said accused only on the ground that he wasfound in the autorickshaw.

9. Another case cited by the learned counsel dealing with theimport of Section 35 of the NDPS Act is a case of Bhola Singh v. Stateof Punjab, (2011) 11 SCC 653, para 10 and 11 wherein the Hon’bleSupreme Court has laid stress on the role of the prosecution to provethat the accused had knowledge (of the offence) which can only befound out after the evidence is proved beyond reasonable doubt,whereupon the presumption under Section 35 will arise.

10. Per contra, Mr. K. Khan, learned P.P while opposing thecontention raised by the learned counsel for the petitioner hassubmitted that in a context of the provision of Section 35, the conceptof knowledge (of the accused) has to be read in conjunction with thewords ‘possession’ and ‘conscious’. The case of Union of India v. Md.Nawaz Khan, (2021) 10 SCC 100, para 25 and 26 was cited by thelearned P.P wherein the Hon’ble Supreme Court at para 25 has referred to the case of Madan Lal v. State of H.P [(2003) 7 SCC 465] where isfound the interpretation of the expression “possession” at para 22 tosay that the expression “possession” is a polymorphous term whichassumes different colours in different context and carry differentmeanings in contextually different backgrounds and also the word‘conscious’ at para 23 where it is said that the word “conscious” meansawareness about a particular fact. It is a state of mind which isdeliberate or intended. At para 26 the court has observed that consciouspossession is the knowledge of possession of contraband, suchknowledge to be gleaned from the facts and circumstances of a case.

11. The learned P.P has further submitted that to attract the provisionof Section 35 there has to be evidence that the accused is aware of thefact that the contraband was hidden in the said vehicle. This fact can berevealed by the accused himself or can be found out through othersources. In this case, the statement of the accused made under Section161 Cr.P.C, though not applicable in course of trial however, for thelimited purpose of consideration of bail the same can be acknowledged,when he has stated that he was in touch with the co-accused (Shri.Imliakum Longkumer) since 01.06.2023 and that he knows that Shri.Imliakum is a drug peddler. He has further stated that he has agreed totravel to Guwahati to help him drive the vehicle. More importantly, hehas also stated that he was aware that illegal consignment (drug) wasconcealed inside the vehicle. This has reinforced the presumption thatthe accused is aware of the existence of the said contraband and henceSection 35 can safely be made applicable to the case of the accused.

12. The learned P.P has also made an impassionate plea that cases ofthis kind would call upon the court to strike a balance between personalliberty and societal interest, when as recent as yesterday, an alleged“Queen bee” of drug peddling was arrested in the city which speaks ofthe menace of drug trafficking infiltrating the core of our society, suchmenace is required to be dealt with very stringently by the lawenforcement authorities. It is therefore, submitted that this is not a fitcase for grant of bail to the accused person.

13. In reply, the learned counsel for the petitioner has submitted asfar as the accused person is concerned, it is reiterated that there are noevidence or material found to prove that he is connected to theconcealment or discovery and seizure of the said alleged contrabandsubstance from the vehicle he was travelling in since the same being apublic vehicle, he was just a mere passenger and has no knowledge orfact of the same.

14. As to the reliance of the prosecution on the statement made bythe accused under Section 161 Cr.P.C which amounts to a statementmade under Section 67 NDPS Act, the learned counsel has submittedthat the same could not be taken as an admission of guilt beinginadmissible in evidence as was held in the case of Tofan Singh v. Stateof Tamil Nadu, (2021) 4 SCC 1.

15. It is prayed that this petition may be allowed and the accused bereleased on bail with any conditions as deemed fit and proper to beimposed by this Court.

16. This Court is conscious of the fact that a number of applicationshave been filed on behalf of the accused person seeking grant of bail inconnection with the aforementioned case, four of them before the trialcourt, this being the second application before this Court.

17. It need not be reminded that a person who is charged with anoffence under the NDPS Act is placed in a very difficult position as faras prayer for grant of bail is concerned in view of the presence ofSection 37 of the Act, which in effect provides that bail can only begranted only if the court is satisfied that there are reasonable groundsfor believing that he is not guilty of the offence and he is not likely tocommit the offence while on bail.

18. Since the contraband substance seized amounts to about 2.738kgs of heroin, naturally, the rigours of Section 37 has to be taken intoaccount while considering the prayer made for grant of bail.

19. In a catena of judgments, the Hon’ble Supreme Court hasconstrued the term “reasonable grounds” in the context of Section 37NDPS Act to mean that such grounds must be the basis for the court tobelieve that the accused is not guilty of the offence alleged. Again,reasonable grounds have to be gathered taking into account the natureand gravity of the offence involved, the evidence and circumstancesfound against the accused person. It implies something more thanprima facie grounds.

20. Though the accused person in question has maintained that he isinnocent and is not aware of the said contraband discovered in the vehicle he was travelling in, the fact that such seizure has been linkedto one of the accused person Shri. Imliakum Longkumer and that thisperson is also known to the accused person in question, the allegationof the call made between them not being denied by him, it is probablynot a coincidence that the accused person in question happens to betravelling by the same vehicle containing the said contrabandconsignment.

21. As to the reliance of the learned counsel for the petitioner on theapplicability of Section 35 of the Act to the case of the accused person,in the opinion of this Court the same has to be established only whenthe whole body of evidence is considered and appreciated by the trialcourt. At this stage, the assertion made thus is too premature toconvince this Court that the accused person is not aware of theconcealment of such contraband in the vehicle he was travelling in.

22. Under such circumstances, this Court is not inclined to agree tothe contention raised by the learned counsel for the petitioner.Accordingly, this petition is found to be devoid of merits, the same ishereby dismissed.

23. Petition disposed of. No costs.

Judge