Meghalaya High Court
Date Of Decision: 05.08.2025 vs The State Of Meghalaya on 5 August, 2025
Author: W. Diengdoh
Bench: W. Diengdoh
2025:MLHC:686
Serial No. 02
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA. No. 36 of 2025
Date of Decision: 05.08.2025
Smti. Aisha Khatoon @ Pahari
W/o (L) Md. Amir Hussain of
Lower Paltan Bazar, Naspati
Ghari, Jhalupara, Shillong, East
Khasi Hills District, Meghalaya
Presently lodged in District Prisons
& Correctional Home at Shillong.
........ Petitioner
- Vs-
The State of Meghalaya
Represented by its Commissioner
and Secretary (Home), Shillong.
........ Respondent
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Pandit, Adv.
Ms. S.D. Sangma, Adv.
For the Respondent(s) : Mr. K. Khan, PP with
Mr. A.H. Kharwanlang, Addl. PP.
Mr. S. Sengupta, Addl. PP.
i) Whether approved for reporting in Yes/No
Law journals etc.:
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ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER (ORAL)
1. Heard Mr. S. Pandit, learned counsel for the petitioner, who has
submitted that on 31.05.2023, at a place known as ISBT junction, Mawiong,
Shillong, the police intercepted a public vehicle proceeding from Nongpoh
to Shillong, of which the petitioner was one of the passengers therein. On a
search being made allegedly, 37.28 grams of contraband substance (heroin)
was said to have been seized from her possession.
2. Accordingly, an FIR was lodged by S.I. Karan T. Pachuau ANTF,
East Khasi Hills, Shillong before the Officer-in-Charge, Mawlai Police
Station, and a case being Mawlai P.S. No. 47 (5) 2023 under Section 21(b)
NDPS Act was registered.
3. On investigation launched, the petitioner was arrested and
detained in custody in connection with the said case, however, since the
investigation could not be completed within the stipulated period, she was
granted default bail by the learned Special Judge (NDPS), Shillong vide
order dated 01.08.2023 with certain conditions to be fulfilled.
4. The investigation being completed, the petitioner was made to
stand trial for the offence under Section 21(b) NDPS Act before the
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competent court of jurisdiction with a regular case being registered as Crl.
NDPS Case No. 46 of 2023.
5. In course of trial in the said Crl. NDPS Case No. 46 of 2023, after
a year or so, the petitioner was again arrested on 25.09.2024 in another
related case being Lumdiengjri P.S. Case No. 103 (09) 2024 under Section
21(b)/27A NDPS Act, allegedly for recovery and seizure of heroin weighing
9.72 grams from her house and nearby a Paan shop, such recovery and
seizure being made on 25.09.2024.
6. Vide order dated 31.01.2025, the competent authority had passed
a detention order against the petitioner under Section 3(1) of Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and
she was accordingly placed under preventive detention for three months, the
grounds being that she was involved in three cases registered under the
NDPS Act, where in one of such cases, Lumdiengjri P.S. Case No. 34 (4)
2015, she was acquitted way back on 27.05.2022 and the other case being
Lumdiengjri P.S. Case No. 103 (09) 2024 which is pending before the Trial
Court. However, the period of the said preventive detention has expired,
submits the learned counsel.
7. It is also the submission of the learned counsel that having been
arrested in the said Lumdiengjri P.S. Case No. 34 (4) 2015, an application
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for cancellation of bail in connection with Mawlai P.S. Case No. 47 (05)
2023 (Crl. NDPS Case No. 46 of 2023) on the ground that the petitioner had
violated bail conditions, was preferred before the learned Trial Court. The
court after hearing the parties vide order dated 27.02.2025, had accordingly
cancelled the previous bail granted to the petitioner. Against this order, the
petitioner has approached this Court by way of Crl.Petn. No. 14 of 2025, but
the same was dismissed vide order dated 28.03.2025, and as such, the
petitioner is still in custody till date.
8. Again, the learned counsel has submitted that the petitioner has
filed two separate bail applications before the Trial Court, but the same was
rejected vide relevant orders dated 07.05.2025 and 03.07.2025.
9. It is the submission of the learned counsel that this application is
preferred, seeking grant of bail on behalf of the petitioner on the ground that
she has been in custody for more than ten months or so, and there is no
likelihood of the trial concluding in the near future since only four out of ten
cited witnesses have been examined by the court as prosecution’s witnesses.
10. It is the contention of the learned counsel that the petitioner is
allegedly involved in connection with seizure of an intermediate quantity of
contraband substance (heroin) and as such, the rigors of section 37 NDPS
Act is not applicable in her case. Taking into consideration the fact that
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investigation has been completed, there is no scope for the petitioner to
tamper with the evidence or witnesses at this point of time. Therefore, in all
fairness, she ought to have been given the opportunity to defend her case
without the confines of custody within the four walls of the prison.
11. The petitioner being a permanent resident of the State of
Meghalaya, if enlarged on bail, she would comply with any conditions to be
imposed by this Court, for which prayer is accordingly made herein, submits
the learned counsel.
12. Mr. K. Khan, learned PP assisted by Mr. A.H. Kharwanlang and
Mr. S. Sengupta, learned Addl. PP appearing for the State respondent has
submitted that the offence involved is in connection with a case under the
NDPS Act, and as admitted, the petitioner is involved in another case at the
present time. In this regard, there is no guarantee that she may not commit
similar offence, if enlarged on bail, considering the fact that she has been
involved in about three known cases where her involvement in the
possession of the contraband substance (heroin) has been established.
13. Even, if the rigors of section 37 is not attracted in this case, as has
been submitted, the fact that the petitioner is involved in other similar and
related cases, may make her a flight risk. It is under such circumstances that
the prayer made in this application is strongly opposed.
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14. On consideration of the submission made by the learned counsel
for the rival parties, facts as has been pointed out which have not been
controverted by either side, is that the petitioner is undergoing trial in
connection with Crl. NDPS Case No. 46 of 2023 for an offence under Section
21(b) of the NDPS Act which provides for punishment inter alia, for
possession of manufactured drugs, for such contravention involving quantity
lesser than commercial quantity, but greater than small quantity, therefore
being of intermediate quantity, the sentence being rigorous imprisonment for
a term which may extend upto 10(ten) years.
15. At this juncture, it may not be out of place to refer to the
principles of bail jurisprudence, where more often than not, a court while
considering a prayer made for grant of bail is guided by the adage, “bail and
not jail”. However, in certain statutes, such as the NDPS Act, there is a
specific provision which runs contrary to the above adage, section 37 of the
said Act being a case in point, wherein it is provided that bail cannot be
granted to the applicant unless the twin conditions found therein are fulfilled
at the first instance, such condition being reasonable grounds for believing
that he is not guilty of such offence and secondly, that he is not likely to
commit any offence while on bail.
16. Though, as has been submitted, the provision of section 37 is not
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applicable to the case of the petitioner herein, however, it cannot be said that
the principles or the spirit of the said provision is not applicable, even
otherwise, a court while considering an application for grant of bail, is guided
by certain factors and parameters to be followed before passing any effective
order in such regard. Consideration of criminal antecedent of the applicant,
likelihood of such applicant repeating commission of a similar offence and
the like are also to be considered.
17. Another aspect of the matter to be considered more particularly
in cases of this kind where consumption, possession and trafficking or
peddling of contraband narcotic substances has affected not only a particular
individual, but has a cascading effect on members of the society, particularly
youths, the ramification of which has invaded personal and private spaces of
citizens, incidents of looting, burglary and theft being example of the same,
therefore the Court, while considering prayer of the kind made in this instant
petition has to balance individual rights as against societal interest.
18. It is also to be noted that the stage of the case is for recording of
evidence and admittedly, four out of ten witnesses have been examined and
discharged. Therefore, since there is no inordinate delay in the ongoing trial,
the plea of delay of the same cannot be accepted by this Court at the present.
19. This being the case, under the facts and circumstances stated
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hereinabove, at this point of time, this Court is not inclined to allow this
petition. The same is hereby dismissed as devoid of merits.
20. Petition disposed of. No costs.
Judge
Signature Not Verified 8
Digitally signed by
DARIKORDOR NARY
Date: 2025.08.05 18:36:02 IST