Bail application filed by husband for release of wife arrested in NDPS case. Court held that since 748 grams of heroine (commercial quantity) were seized from her house and she admitted accompanying husband to deliver drugs, bail was denied under Section 37 NDPS Act.
Bail application for Smti. Kidurou Lanah stood rejected.
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Page No.# 1/7
GAHC020003912023
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH
Case No. : Bail Appln./16/2023
SHRI M SHIBA S/O MAIKHO PUMAI, R/O IMKONGLENDEN COLONY, DIMAPUR TOWN, WARD 20, NAGALAND
VERSUS
THE STATE OF NAGALAND NAGALAND
Advocate for the Petitioner : ASENLA WALLING
Advocate for the Respondent : GOVT ADV NL
BEFORE HONBLE MR JUSTICE KARDAK ETE
ORDER
Date : 18-09-2023
Heard Ms. Asenla Walling, learned counsel for the applicant and also heard Ms. S. Mere, learned PP for the State of Nagaland. 2. By filing this application under section 439 of CrPC, 1973 read with section 37 of the NDPS Act, 1985, the applicant prays for release of the accused Smti. Kidurou Lanah, in connection with GR
Page No.# 2/7 case no. 339/ 2023 corresponding to West PS Case no. 044/2023 under section 34 of IPC read with Section 22(c) of NDPS Act, 1985.
Page No.# 3/7 often this children as individual faced difficulties and even social stigma.
Page No.# 4/7 the matter, wherein she admitted to the recovery of the contraband by the police from her house and she had accompanied her husband twice or thrice for delivering the contraband to one Romijan Begum(the main accused in the matter). Therefore, since she has admitted her involvement, there would not be any reasonable ground for this Court to believe that she is not guilty of such offence, which is a pre-requisite condition and mandatory requirement under section 37 of the NDPS Act, 1985.
“37. Offences to be cognizable and non-bailable--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)� (a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-�
Page No.# 5/7 (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub- section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”
(Supra), the Hon’ble Supreme Court has observed as follows:
“4. Learned counsel for the State points out that the children were not arrested but keeping in mind the fact that they could not be separated from the mother, they too were taken in custody along with her. This Court is of the opinion that prima facie the police authorities did not apply their minds while taking into the custody petitioner a woman with three minor children. The allegation is that prohibited substance was recovered from the possession of the husband; and the petitioner-wife was travelling with him. Taking into account these circumstances, the arrest of the petitioner-wife was wholly unnecessary- even excessive, as she had no previous history of alleged criminal behavior.”
“10. After carefully examining the arguments advanced by learned counsel for the parties and having cursorily glanced at the records, we are of the opinion that the impugned order cancelling the bail granted in favour of Bharat Chaudhary [A-4], is not sustanabile in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6th December, 2019, two test reports dated 17th December, 2019 and one test report dated 21st December, 2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that “quantitative analysis of the samples could not be carried out for want of facilities”. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by the DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the
Page No.# 6/7 residence of A-4 at Jaipur, on 16th March, 2020. Reliance on printouts of Whatsapp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited.”
16. In the case of Union of India Vs. Ajay Kumar Singh (Supra), the Hon’ble Supreme Court has observed as follows:
“14. This apart, it is noticed that the High Court, in passing the impugned order of bail, had lost sight of Section 37 of the NDPS Act, which, inter alia, provides that no person accused of an offence involving commercial quantity shall be released on bail unless the twin conditions laid down therein are satisfied, namely,(i)the public prosecutor has been given an opportunity to oppose the bail application; and (ii) 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 such offence while on bail.
Page No.# 7/7 while delivering the contraband item to the main accused, in such a situation, it is difficult for this Court to conclude that there are reasonable grounds to believe that she is not guilty of such an offence and that she is not likely to commit any offence while on bail. As the Section 37 mandates that unless the Court is satisfied that there are reasonable grounds to believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail, this Court is unable to hold the same in view of the materials against the accused as the contrabands were seized from the house of the accused and she had accompanied her husband on few occasions while delivering the contrabands to the main accused.
Sd/- JUDGE
Comparing Assistant
3 issues framed by the court
Whether bail under Section 439 CrPC and Section 37 NDPS Act can be granted when the offence involves commercial quantity and there are reasonable grounds to believe the accused is not guilty.
Whether the seizure of 748 grams of heroine from the accused's residence and her admission of accompanying the husband to deliver contraband satisfy the requirements of Section 37 NDPS Act.
Whether the applicant establishes reasonable grounds to believe the accused is not guilty and unlikely to commit offences while on bail.
Colour shows how this judgement treated each authority
Sahimina Biswas Vs. The State of West BengalReferred¶33
SLP (Crl) No. 12168 of 2022
Bharat Chaudhary Vs. Union of IndiaReferred¶36
2021 SCC Online SC 1235 · Who else cites this
Union of India Vs. Ajay Kumar SinghReferred¶39
2023 SSC Online SC 346
4 provisions across 3 enactments
Shri M Shiba S/o Maikho Pumai
The State of Nagaland
Kardak Ete
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
