Gauhati High Court
Khaiminlal Touthang vs The State Of Assam on 29 January, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/9
GAHC010263362024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3773/2024
KHAIMINLAL TOUTHANG
S/O NGAMSEI TOUTHANG A RESIDENT OF MONNAPHAI,P.O., P.S. AND
DIST. CHURACHANDPUR, MANIPUR.
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : M THUMRA, MR. S T KOM
Advocate for the Respondent : PP, ASSAM,
BEFORE
Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocates for the petitioner : Shri Serto T. Kom
Advocates for the respondent : Ms. S. Jahan, APP, Assam
Date of hearing : 24.01.2025
Date of Judgment : 29.01.2025
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Judgment & Order
Heard Shri Serto T. Kom, learned counsel for the petitioner, namely,
Khaiminlal Touchang, who has filed this bail application under Section 483 of the
BNSS, 2023 read with Section 37 of the NDPS Act praying for bail in connection
with NDPS Case No. 158/20214 (arising out of Sonapur PS Case No. 585/2021)
registered under Sections 21(c)/24/29 of the NDPS Act.
2. The petitioner was arrested on 28.08.2021.
3. At the outset, it may be noted that the prayer for bail of this petitioner was
rejected by this Court on two occasions earlier vide orders dated 18.04.2022 in
Bail Appln./3706/2021 and order dated 20.12.2023 in Bail Appln./4379/2023.
4. Pursuant to earlier orders, the scanned copies of the case records have
been transmitted to this Court.
5. Shri Kom, learned counsel for the petitioner makes the following
submissions in support of his prayer for bail:
i. The petitioner is behind the bars since the date of his arrest i.e.
28.08.2021 and therefore, further custodial detention is not
necessary. Though the trial has begun, only three numbers of PWs
have been examined.
ii. Out of 6 arrested persons, 2 have been granted bail by this Court.
iii. There is no criminal antecedents of the petitioner and therefore, the
rigours of Section 37 of the NDPS Act, can be dispensed with.
iv. There is no prima facie case against the petitioner and therefore, he
should be given the benefit of Section 37 of the Act.
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6. In support of his submissions, Shri Kom, learned counsel for the petitioner
places reliance upon the following case decisions-
i. Order dated 13.07.2023 of the Hon’ble Supreme Court
in SLP (Crl.) No. 4169/2023 [Rabi Prakash Vs. State of
Odisha].
ii. Order dated 25.01.2023 by the Hon’ble Supreme Court
in SLP(Crl.)/6690/20222 [Dheeraj Kumar Shukla Vs. State
of U.P.]
7. The case of Rabi Prakash (supra) has been relied upon to buttress the
contention of long incarceration during the time of trial vis-à-vis the rights
granted under Article 21 of the Constitution of India. The case of Dheeraj
Kumar Shukla (supra) has been relied upon in support of the prayer for
release of bail when there was delay in completion of the trial.
8. Per contra, Ms. S. Jahan, learned Addl. PP, Assam strenuously opposes the
prayer for grant of bail of the petitioner. She submits that on 09.03.2022 the
charge sheet has been submitted and the trial has begun. It is submitted that
there are 9 nos. of PWs, out of which, 3 nos. of PWs have already been
examined. It is further informed that the case records would reveal that for rest
of the witness, summons were being issued till to a certain date, but for some
reason and the other, the rest of the witnesses have not been able to be
appeared.
9. With regard to the requirement of prima facie case on the basis of the
materials on record, the learned APP submits that the petitioner is a named
accused who was arrested on the spot of the seizure from the vehicle (Bolero)
in which he was travelling with few others. It is submitted that the contraband
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was concealed in the dashboard and the backlight of the vehicle in a planned
manner. The report of the FSL also states that the contraband is Heroin with
78.85% purity and the quantity is also huge being about 1.3 KG. She further
submits that amongst the witnesses examined, there is also a seizure witness
who has deposed against the petitioner. The learned APP finally submits that in
consideration of a bail application, this Court is not required to go into the
merits of the allegations and the decision is to be rendered based on a prima
facie determination from the materials on record.
10. The learned APP, Assam submits that apart from the fact that the rule of
precedents will not have a strict application in criminal jurisprudence, the facts
of the cases cited are distinguishable. She has also informed that one of the
accused persons who was granted bail in this case, namely, Lulu Kuki has
jumped bail and is absconding.
11. The rival contentions made on behalf of the parties have been duly
considered and the scanned copies of the case records have been carefully
examined.
12. Before considering the submissions, this Court cannot lose sight of the
fact that the bail sought for is in connection with the NDPS Act and the
contraband involved is Heroin, the quantity of which has been ascertained as
1.324 kg with 78.85% purity.
13. In the case of Chandrakeshwar Prasad Vs. State of Bihar, reported
in (2016) 9 SCC 443 (popularly known as Md. Sahabuddin Case), the Hon’ble
Supreme Court has laid down in clear terms that interest of the society is a
relevant factor to be taken into account while considering the prayer for bail. For
ready reference, the relevant paragraphs of the said case are extracted
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hereinbelow:
“10. This Court in Rajesh Ranjan Yadav @ Pappu Yadav v. CBI
through its Director (2007) 1 SCC 70 balanced the fundamental right
to individual liberty with the interest of the society in the following
terms in paragraph 16 thereof:
“We are of the opinion that while it is true that Article 21 is
of great importance because it enshrines the fundamental
right to individual liberty, but at the same time a balance
has to be struck between the right to individual liberty and
the interest of society. No right can be absolute, and
reasonable restrictions can be placed on them. While it is
true that one of the considerations in deciding whether to
grant bail to an accused or not is whether he has been in
jail for a long time, the court has also to take into
consideration other facts and circumstances, such as the
interest of the society.”
14. This Court also takes into consideration the very object of the enactment,
namely to curb the menace of drugs and its devastating effects on the society
which has the propensity to destroy the generation as a whole. Therefore, any
consideration of a prayer for bail in a NDPS case, that too for a commercial
quantity has to be done without overlooking the aspect of interest of the society
in general.
15. As regards the first ground urged in support of the prayer for bail, namely,
long incarceration and reliance on the case of Rabi Prakash (supra) is
concerned, this Court is of the opinion that such ground has to be weighed
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against the objective of the Act. In the case of Rabi Prakash (supra), the
accused was in custody for a period of more than 3 ½ years and in the trial,
only 1 out of 19 witnesses was examined. On the other hand, in the instant
case, out of 9 PWs, 3 PWs have already been examined. So far as the case of
Dheeraj Kumar Shukla (Supra) is concerned, the facts would reveal that in
the said case, trial was yet to commence.
16. With regard to the ground of availability of a prima facie case, the
petitioner is a named accused who was arrested at the place of occurrence and
was travelling in the vehicle (Bolero) along with few others. The seized
contraband has been found to be Heroin, that too 1.324 kg with 78.85% purity
which is a commercial quantity. The contraband was found concealed in the
vehicle. This Court has further noted that the vehicle is not a large vehicle like a
bus where there are many passengers but a Bolero were all the six passengers
were travelling together. This Court has also noted that there is no denial of the
fact of the presence of the petitioner in the vehicle and there is nothing in the
petition or in the records regarding the purpose of the travel.
17. In the case of NCB Vs. Mohit Aggarwal reported in AIR 2022 SC
3444, the requirement that the accused person is unlikely to commit any
offence while on bail has also been taken into consideration. As mentioned
above, the co-accused Lulu Kuki who was granted bail has jumped and is
absconding.
18. In the aforesaid case of Mohit Aggarwal (Supra), the Hon’ble Supreme
Court has interpreted Section 37 of the Act which has been inserted especially
for the purpose of consideration of bail. It has been held that the expression
“reasonable ground” appearing in Section 37(1)(b) would mean credible and
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plausible grounds for the Court to believe that the accused person is not guilty
for which supporting facts and circumstances must exists. The satisfaction
regarding the accused person unlikely to commit any offence while on bail has
also been highlighted.
19. The NDPS Act is a special Act with an inbuilt mechanism in the form of
Section 37 relating to bail. For ready reference, Section 37 is extracted
hereinbelow:
“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 he
cognizable;
(b) No person accused of an 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-
(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
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(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.”
20. The said Act has introduced an additional restriction in the form of giving
an opportunity to the Public Prosecutor and more importantly, the Court has to
be satisfied that there are reasonable grounds for believing that the accused is
not guilty of such offence and that he is not likely to commit any offence while
on bail. Section 37 (2) makes it clear that the aforesaid limitations are in
addition to the other limitations under the Cr.P.C or any other law for the time
being in force, on grant of bail.
21. This Court also takes into account the case of Union of India Vs. Ajay
Kumar Singh @ Pappu wherein the Hon’ble Supreme Court vide an order
dated 28.03.2023 in Crl.App. No. 952/2023 interfered with an order passed by
the Allahabad High Court whereby bail was granted. It was held that Section 37
of the Act was lost sight of. Further, in the case of Satpal Singh Vs. State of
Punjab reported in (2018) 13 SCC 813, the Hon’ble Supreme Court
reiterated that the rigors of granting bail under the NDPS Act should be strictly
followed and the conditions laid down under Section 37 of the Act are to be
mandatorily followed.
22. In view of the aforesaid facts and circumstances and also considering the
fact that the offence is under the NDPS Act where, while granting bail, a number
of other factors, namely, nature of the contraband, the quantity and the nature
of accusation/involvement of the applicant are to be taken into consideration,
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this Court is of the opinion that the petitioner is not entitled to the privilege of
grant of bail. This Court also cannot ignore the objective and purpose of the
enactment which is to curb the menace of drugs in the society.
23. Accordingly, the bail application stands rejected at this stage. However,
taking into consideration that the trial is not progressing in the desired manner,
the learned Trial Court is requested to expedite the hearing and conclude the
same without any unreasonable reason. It is also clarified that the observations
made above are tentative in nature and shall not cause prejudice to either of
the parties in the trial.
JUDGE
Comparing Assistant
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