Allowed

Paominthang Lhanghal v. the State of Assam

Gauhati HC2 Dec 2024Bail Appln./2855/2024

Case brief

AI extract

What is this about?

NDPS bail application by an accused held over three years for heroin recovery. The court held undue delay in trial can justify bail alongside Section 37 conditions; weak seizure-witness testimony showed no prima facie connection to contraband. Bail granted with stringent conditions.

What did the court decide?

Petitioner released on bail on bond of Rs. 1,00,000 with two solvent local sureties, subject to conditions including travel restrictions, passport surrender, and no witness contact.

Paominthang Lhanghal Vs the State of Assam — Narcotics (NDPS) | Gauhati HC (2024)

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GAHC010196192024

2024:GAU-AS:12185

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Bail Appln./2855/2024

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PAOMINTHANG LHANGHAL S/O PAOLET LHANGHAL R/O VILL-M JAMKIM P.S. AND DIST. CHURACHANDPUR, MANIPUR.

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VERSUS

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THE STATE OF ASSAM REP BY THE PP, ASSAM

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Advocate for the Petitioner : MS. S K NARGIS, MR F H LASKAR (2),MS N SULTANA,MS S BEGUM

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Advocate for the Respondent : PP, ASSAM,

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BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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ORDER

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03.12.2024

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Heard Ms. S. K. Nargis, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State of Assam.

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This is an application made under Section 483 of the Bharatiya Nagrik

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Suraksha Sanhita, 2023 seeking bail by the accused/petitioner, namely, Paominthang Lhanghal , who was arrested on 29.08.2021 in connection with NDPS Case No. 158/2021 registered under Sections 21(C)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 arising out of Sonapur PS case No. 585/2021.

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Ms. Nargis, learned counsel arguing for grant of bail submits that in view of the determination made by the Hon’ble Apex Court in the case of State vs Pallulabid Ahamed Arimutta & Others reported in 2022 12 SCC 633 and the ratio laid down in the case of Tofan Singh vs State of Tamil Nadu reported in (2021) 4 SCC 1 , regarding value of confessional statement recorded under Section 67 of the NDPS Act, confessional statement of co-accused shall remain inadmissible even at the stage of consideration of the bail. Therefore, in view of such settled proposition of law, the petitioner is entitled for grant of bail.

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Ms. Nargis, learned counsel further submits that there is violation of the Section 52A of the NDPS Act and therefore, in the totality of the matter, the petitioner is entitled for release on bail inasmuch as there is no likelihood of early hearing.

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Per contra, Mr. Borthakur, learned Additional Public Prosecutor relying on the judgment of the Hon’ble Apex Court in the case of Narcotics Control Bureau –VS- Mohit Agarwal reported in 2022 SCC OnLine 891 , argues that without having the satisfaction as regard the embargo placed in Section 37 of the NDPS Act, 1985, only on the ground of long incarceration an accused cannot enlarged on bail. Accordingly, the learned Additional Public Prosecutor vehemently objected to the prayer of the petitioner for grant of bail.

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Heard the learned counsel for the parties, perused the material available on record.

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Section 37 of the NDPS Act, 1985, mandates that a Court can grant bail to an accused only after hearing the Public Prosecutor and after having satisfactions of twin conditions that there are reasonable grounds for believing that the accused is not guilty of the offence charged/alleged and that, he is not likely to commit any offence while on bail. Such satisfaction, which the Court is required to record, should be based on reasonable reading and does not called for a meticulous examination of the materials collected during the investigation or during the trial otherwise, the same will amount to mean a complete denial of bail under Section 37 of the NDPS Act, 1985 and the said provision would effectively exclude grant of bail altogether.

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Grant of bail, on the ground of undue delay in the trial, cannot be said to be fettered by Section 37 of the NDPS Act, 1985, inasmuch as Section 436A of the Cr.P.C., is made applicable to the offences under the NDPS Act by the Hon’ble Apex Court in the case of Satender Kumar Antil –VSCBI reported in 2022 10 SCC 51 .

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Section 36A of the NDPS Act, 1985, mandates that the offences under the Act are triable by a Special Court. In the considered opinion of this Court, such mandate of the legislature is to achieve the object that the trials are completed at the earliest possible time inasmuch as the conditions of bail and other provisions under the Act, are very stringent in nature. It is also well settled that reasonable fair and just procedure in a criminal trial is a constitutional obligation on the part of the State. A speedy trial is also one of the dimensions of the fundamental right to life under Article 21 of

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the Constitution of India (Reference Raghubir Singh –Vs- State of Bihar 1986-4SCC-481 ).

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So far relating to the constitution of Special Court, it is stated at the bar that in the State of Assam, though different Sessions Judges and Additional Sessions Judges are designated as Special Courts under Section 36A of the NDPS Act, 1985, however, these Courts are also simultaneously entrusted with the different Sessions triable offences under IPC, Criminal Appeals under IPC and to act as Special Judges under Special Act like POCSO Act, 2012. In view of such undisputed factual position, the object of speedy trial under the NDPS Act, as discussed hereinabove shall be hardly achievable.

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In the totality of the aforesaid backdrop and propositions of law, this Court is of the view that alongside the embargo placed in Section 37 of the NDPS Act, 1985, the ground of undue delay in trial can also be a ground for granting bail inasmuch as the Court is to come to the satisfaction that there is no likelihood of completion of trial in near future. Thus, such ground of inordinate delay, in the considered opinion of this Court, shall depend on the facts of the each case and the cause of delay is also required to be noted down.

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On the aforesaid backdrop, now let this Court looked into the facts of the present case.

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The prosecution case is that on 28.08.2021 at about 8.45 p.m, 1.324 kg of contraband suspected to be heroin were recovered from one Bolero vehicle bearing registration No. MN-07 D-3257. The police apprehended four persons including the present petitioner and also seized the aforesaid vehicle.

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The F.I.R. was registered on 29.08.2021, the petitioner was arrested on 29.08.2021. The charge-sheet was filed on 29.10.2021. Charges under Section 21(C)/29 of the NDPS Act were framed by the learned trial Court on 09.03.2022. The prosecution has listed as many as nine witnesses to prove their case. From 09.03.2022, after framing of charge as many as eight dates were fixed for examination of PWs, however, first PW-1 (FSL Expert) was examined on 26.08.2022. Thereafter, till 15.12.2022 no prosecution witnesses were produced and only on 15.12.2022, one of the seizure witness (PW-2) was examined. Thereafter, till 23.08.2023, as many as seven dates were fixed for examination of PWs, however, no PWs were present on these dates except on 23.08.2023, when PW-3 was examined. From 23.08.2023 till consideration of the bail application no witnesses have been presented though many dates were fixed and next date is fixed on 09.01.2025. In the meantime the accused in jail for more than 3 years.

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Now coming to the evidence of seizure witness i.e. PW-2, this PW-2 deposed that a vehicle having registration number of Manipur was intercepted by the police personal, there were four/five persons inside the vehicle and police asked the driver of the vehicle to park the same at the side of the road, vehicle was searched and from the vehicle some soap boxes containing suspected drugs were recovered and thereafter police took his signature at the spot as witness to the recovery of the suspected drugs. Thereafter, the police took away the vehicle and the persons who were inside the vehicle. During cross-examination, he deposed that he did not know the names of the persons who were travelling by the intercepted vehicle and he didnot know the content of Exhibit-P3, (the Seizer List) and he had not seen the suspected drugs in the Court. Police asked him to put

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his signature in the Exhibit-P3. The prosecution through this witness did not identify the accused person in the dock nor he stated that the person who were inside the vehicle are present in the dock. The other seizure witness is PW-3. This witness deposed that the police at Sonapur Toll Gate recovered drugs from a bolero vehicle. There were six/sevens person in the Boleor vehicle when the drugs was recovered. Police weighing the drugs with the help of a weighing machine and said weighing machine was seized in his presence. He proved the Exhibit P-3 as seizure list. During crossexamination, he deposed that he has stated for the first time in the court that drugs were recovered from the Bolero vehicle in which 6/7 persons were there. He deposed that he had good relation with Sonapur Police Station and for that reason, he was asked by police to put his signature. He further deposed that the fact that there were six/sevens persons in the bolero vehicle was told by police to him.

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These two witnesses projected by the prosecution as seizure witness has not identified the accused to be occupant of the vehicle nor they deposed that drugs were recovered from the personal possession of the accused.

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That being the position, as recorded hereinabove, this Court is of the view that the petitioner has been able to make out a prima facie case that there is no plausible ground to believe that the accused was an occupant of the bolero vehicle from which the contraband was recovered.

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Now coming to the other aspect of the matter that whether there is any likelihood of the petitioner committing any further similar offence, this Court is of the view that such anxiety of the prosecution can be redressed if stringent conditions are imposed while granting bail, taking note of the delay in prosecution as well as the materials produced by the prosecution

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till date. The facts also remain that there is no material in record to support such apprehension.

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Considering the aforesaid aspects, propositions of law and in the given facts and circumstances of the present case, this Court is of the considered opinion that by imposing stringent conditions, the attendance of the petitioner before the learned trial Court could be secured and he can be barred from hampering and tampering or influencing the witnesses.

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In view of the peculiar facts and circumstances of the case, the petitioner, namely, Paominthang Lhanghal , be released on bail on executing a bail bond of Rs. 1,00,000/- (One lakh) with two suitable solvent local sureties of like amount to the satisfaction of the learned Additional District and Sessions Judge No. 2, Kamrup (M), Assam in connection with aforementioned case. The bail granted to the petitioner shall be subject to following conditions:-

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(a) The petitioner shall not leave the territorial jurisdiction of learned Additional District and Sessions Judge No. 2, Kamrup (M), without prior written permission from him;

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(b) The petitioner shall not hamper and tamper with the evidence of the case;

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(c) The petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

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(d) The petitioner shall surrender his passport, if any (if not already surrendered) before the learned Additional District and

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Sessions Judge No. 2, Kamrup (M).

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(e) The petitioner shall not try to contact any of the witnesses by any mode including telephone, social media etc.

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(f) The petitioner shall furnish the present residential address with proof to the learned trial Court below and shall not change the said residence without prior permission of the learned trial Court.

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(g) The petitioner shall appear before the learned trial Court below on each and every date of appearance during trial.

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In the aforesaid terms, this bail petition is allowed.

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Comparing Assistant

Paominthang Lhanghal v. the State of Assam

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Paominthang Lhanghal v. the State of Assam

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