BA/1/2025 of BARAK ALI Vs STATE OF MEGHALAYA on 28 January 2025

1. Heard Ms. B. Khongthaw, learned counsel for the applicant whohas submitted that this instant application has been preferred under Section 483 of the BNSS read with Section 37 of the NDPS Act with aprayer for grant of bail on behalf of Shri. Siraj Ali who is the accusedperson in connection with Crl. NDPS Case No. 26 of 2024 before thecourt of the learned Special Judge (NDPS), Khliehriat, East JaintiaHills District.

2. It is the submission of the learned counsel that the accusedperson is the son of the applicant who was sent by the applicant toSilchar, Assam in connection with a truck belonging to the saidapplicant which was lying in a damaged condition on account of anaccident which has taken place involving the said vehicle. Accordingly,the accused person has proceeded towards Silchar by public transportand on completion of his assignment, he had boarded a bus (NightSuper) from Silchar to Shillong. This took place on 22.08.2024.

3. In course of the journey, the said bus was stopped by the policefor routine check and in the process, the police personnel discovered abrown carton lying underneath the seat where the accused was sittingand finding it of suspicious nature, the same was checked. Inside thecarton was found an inverter and on further examination it was alsofound that it contained consignment of suspected contraband substancebeing yellow-orange powder weighing about 79.81 gram. The same onbeing tested revealed to be heroin. The accused person was accordinglyarrested on the ground that he is found to be in conscious possession ofthe said contraband.

4. On a FIR filed by SI Laitphar Syiem of Ratacherra C. P, EastJaintia Hills, Meghalaya, a case was registered being Lumshnong P.S.Case No. 32(8) of 2024 under Section 21(b)/29 NDPS Act. On investigation being completed, the charge sheet was filed and theInvestigating Officer (IO) had forwarded the accused person to thecompetent court of jurisdiction for trial. The stage of trial is forconsideration of charges and the next date fixed for the case is30.01.2025.

5. It is the further submission of the learned counsel that theaccused person is a mere passenger and has no knowledge of the saidconsignment or box which was kept under the seat that he was sittingand as such, the prosecution has falsely implicated him in the case. Inthis regard, the learned counsel has referred to the case of Kishore Birav. State of Odisha passed in BLAPL No. 9629 of 2021 where at para 9of the same is cited the case of Avtar Singh and Ors. v. State of Punjabwherein the Hon’ble Supreme Court, inter alia, has observed that “…The persons who were merely sitting on the bags, in the absence ofproof of anything more, cannot be presumed to be in possession of thegoods.” It is a similar situation as far as the case of the accused personherein is concerned, further submits the learned counsel and therefore atthis point of time, it is prayed that the accused may be enlarged on bailon any conditions that this Court deems fit to impose.

6. Per contra, Mr. N.D. Chullai, learned AAG along with Mr. E.R.Chyne, learned GA while opposing the prayer made, has submitted thatthe applicant has failed to reveal the complete facts and circumstancesof the case of the accused inasmuch as five bail applications have beenpreferred before the learned trial court which was rejected on merits.Therefore, there being no change of circumstances at this point of time,the accused may not be enlarged on bail.

7. It is also the submission of the learned AAG that the caseinvolves contraband narcotic substance, that is, heroin which is veryserious in nature inasmuch as the drug related situation in this State isvery serious and needs to be combatted by all concerned, that is, theenforcement forces and even the common citizen as well as courts ofjustice. In this regard, the learned AAG has referred to the case of Shri.Khupliansum v. State of Meghalaya wherein vide order dated31.07.2023 passed in BA No. 22 of 2023, this Court at para 18, 19 and20 has observed as follows:- “18. In the case of Indresh Kumar (supra), the Hon’bleSupreme Court has cited the case of Dataram Singh v. State ofU.P & Ors: (2018) 3 SCC 22, more particularly para 2 of thesame which reads as follows:

“2.There is no doubt that the grant or denial of bail isentirely the discretion of the judge considering a case buteven so, the exercise of judicial discretion has beencircumscribed by a large number of decisions rendered bythis Court and by every High Court in the country. Yet,occasionally there is a necessity to introspect whetherdenying bail to an accused person is the right thing to doon the facts and in the circumstances of a case.”entirely the discretion of the judge considering a case buteven so, the exercise of judicial discretion has beencircumscribed by a large number of decisions rendered bythis Court and by every High Court in the country. Yet,occasionally there is a necessity to introspect whetherdenying bail to an accused person is the right thing to doon the facts and in the circumstances of a case.”

19. Taking a cue from this, this Court is reminded of a remarkwhich runs as follows:which runs as follows:

“The scourge of drugs yields disastrous consequences onthe health of young people, the well-being of the family,the spread of crime and the destruction of economies byfinancial flows of obscure origins”the health of young people, the well-being of the family,the spread of crime and the destruction of economies byfinancial flows of obscure origins”

20. The above remark is aptly true in the society that we arenow living where the menace of drugs is threatening to destroylives and society. Indeed, young people are most vulnerable tothis threat and many a time, have been seen to fall prey to thesame. It is incumbent upon the society as well as courts tocombat this menace in whatever possible way and although, dueprocedure of law has to be followed, in drug related cases, the Investigating Agencies and Courts has to be given wide latitudein napping or bringing any possible accused to book.”

8. It is the submission of the learned AAG that findings wouldreveal the involvement of the accused person in the case and as such, hehas to be tried for the offence committed. This being the case, at thisstage, this Court may not release the accused on bail and this petitionmay be disposed of accordingly.

9. This Court has considered the submission made by the parties,facts need not be repeated except to note that the accused person inquestion is facing trial in an offence under NDPS Act. Needless to say,the offence involved is serious in nature and needs to be dealt with instrict compliance with the relevant procedure of law.

10. As far as the reference of the learned counsel for the applicantto the case of Kishore Bira (supra), this Court is in agreement with theobservations made by the Hon’ble Supreme Court quoted therein.However, the key word in the quoted portion to be noted is the word“proof”. As far as proof is concerned, at this point of time, this Courtcannot come to any conclusion as to whether there is any proof for oragainst the accused person in question. It is a matter of trial whereevidence has to be led in this regard. Be that as it may, considering thesubmission of the learned AAG, where it is submitted that there areonly 3(three) witnesses in the case which can be presumed that the trialmay not be prolonged unnecessarily, therefore, it would be just andproper for the prosecution to prove its case and similarly for thedefence/accused to disprove the charges.

11. It is also the observation of this Court that the case before thetrial court is for consideration of charges, the accused is given theopportunity to state his case before the trial court before considerationof such charges and necessary orders will follow as to whether he isliable to be discharged or not.

12. In view of the observation made herein above, this Court is notinclined to allow this petition at this point of time. It is herebydismissed.

13. Petition disposed of. No costs.

Judge