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:685
Serial No. 03
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA. No. 37 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.:
ii) Whether approved for publication
in press: Yes/No
1
2025:MLHC:685
JUDGMENT AND ORDER (ORAL)
1. Heard Mr. S. Pandit, learned counsel for the petitioner, who has
submitted that the petitioner was arrested by the police on 25.09.2024 from
her residence at Lower Paltan Bazaar, Jhalupara, Shillong for an alleged
recovery and seizure of contraband substance suspected to be heroin
weighing 3.67 grams from her house and 6.05 grams from a place nearby a
Paan shop, whereupon, on an FIR being lodged in this regard, Lumdiengjri
P.S. Case No. 103 (09) 2024 under Section 21(b)/27A NDPS Act was
registered.
2. On investigation launched, the Investigating Officer has finally
filed the final report and charge sheet No. 27 of 2024 dated 30.12.2024
finding well-established prima facie case made out against the
accused/petitioner for the offence punishable under Section 21(b)/27A of the
NDPS Act. The Trial Court taking cognizance of the case, has registered the
same as Crl. NDPS Case No. 1 of 2025 and charges under the aforesaid
sections was framed on 21.05.2025. The case is proceeding for recording of
prosecution’s witnesses, for which till date, two out of eleven witnesses were
examined and discharged.
3. The learned counsel has also submitted that vide order dated
31.01.2025, the competent authority had passed a detention order against the
2
2025:MLHC:685
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 another being Mawlai P.S. Case No. 47 (05) 2023
which is pending before the Trial Court. However, the period of the said
preventive detention has expired, submits the learned counsel.
4. 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
for cancellation of bail in connection with Mawlai P.S. Case No. 47 (5) 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.
5. Again, the learned counsel has submitted that the petitioner has
filed several bail applications before the Trial Court, but each and every one
3
2025:MLHC:685
of such petitions have been rejected, the last bail application being rejected
vide order dated 03.07.2025 which has then prompted the petitioner to
approach this Court with this instant bail application.
6. 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 two out of
eleven cited witnesses have been examined by the court as prosecution’s
witnesses and keeping the petitioner in continued custodial detention, would
not serve any purpose.
7. 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. However, one of the charges framed against
the petitioner is for punishment of an offence committed under Section 27A
which speaks of financing illicit traffic and harbouring offenders and the
presence of such a provision, would attract the corresponding provision of
section 37 for which grant of bail is made difficult given the negative
connotation found in the said provision.
8. The learned counsel has also submitted that on perusal of the
4
2025:MLHC:685
charge sheet, there is found not even an iota of evidence to prove that the
petitioner is involved in either financing or harbouring any person engaged
in the illicit drugs business. The only connection that the prosecution has
sought to link the petitioner as far as the provision of section 27A is
concerned is the alleged statement of one person namely, Smti. Nur Jahan
Begum, who runs a Paan shop located next to the house of the petitioner, and
who has informed the police about the suspected heroin which was then
recovered from the house of the petitioner. However, this is not evidence at
all to enable the prosecution or the Investigating Officer for that matter to
conclude that the petitioner is guilty for the offence under Section 27A.
9. This being the case, the learned counsel has submitted that the
alleged recovery of the said contraband substance being of intermediate
quantity, the petitioner is therefore entitled to be granted bail, considering
the fact that she is in custody for the last ten months or so.
10. 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.
11. Mr. K. Khan, learned PP assisted by Mr. A.H. Kharwanlang and
Mr. S. Sengupta, learned Addl. PP appearing for the State respondent has
5
2025:MLHC:685
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.
12. It is also the submission of the learned PP that there is prima facie
evidence to attract the provision of section 27A as far as the petitioner is
concerned and in due course, the prosecution will prove the same before the
Trial Court, therefore, at this stage, it may not be prudent for this Court to
return any finding on this aspect as the trial is going on. In the present
circumstances, the provision of section 37 being duly attracted in this case,
the petitioner has to satisfy this Court that she is innocent and that even, if
released on bail, she will not commit any other offences.
13. The learned PP has also submitted that the fact that the petitioner
is involved in another case of similar nature involving identical provision of
the NDPS Act, she is therefore disqualified to even seek contrary relief, vis-
à-vis, section 37 of the said Act. As such, at this stage, the petitioner has not
been able to make out a case for grant of bail.
14. On consideration of the submission made by the learned counsel
6
2025:MLHC:685
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. 1 of 2025 as well as in 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 less 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. Additionally, in Crl. NDPS Case No. 1 of 2025, the petitioner
is also charged for an offence punishable under Section 27A of the Act.
15. In this regard, this Court has also perused the materials on record
including the charge sheet and has prima facie failed to find any link or even
evidence to prove that the petitioner has committed an offence under Section
27A of the Act. However, such observation is made only for the purpose of
this instant application and should not affect the opinion of the Trial Court
which will consider the case of the parties in its totality on the basis of
evidence adduced.
16. This observation would therefore remove the presence of the
provision of section 37 of the Act as far as the case of the petitioner herein
is involved. She can therefore be considered for bail under the general
7
2025:MLHC:685
principles of jail jurisprudence.
17. Again, 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,
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.
18. Though, as has been submitted and accepted by this Court that
the provision of section 37 is not 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. 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
8
2025:MLHC:685
societal interest.
19. It is also to be noted that the stage of the case is for recording of
evidence and admittedly two out of eleven 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.
20. This being the case, under the facts and circumstances stated
hereinabove, at this point of time, this Court is not inclined to allow this
petition. The same is hereby dismissed as devoid of merits.
21. Petition disposed of. No costs.
Judge
Signature Not Verified 9
Digitally signed by
DARIKORDOR NARY
Date: 2025.08.05 18:38:27 IST