Aisha Khatoon @ Pahari vs State Of Meghalaya

W. Diengdoh, J

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.

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.

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.

The investigation being completed, the petitioner was made to stand trial for the offence under Section 21(b) NDPS Act before the competent court of jurisdiction with a regular case being registered as Crl. NDPS Case No. 46 of 2023.

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.

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.

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 (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.

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.

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.

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 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.

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.

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.

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.

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.

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.

Though, as has been submitted, 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, 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.

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.

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.

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.

Petition disposed of. No costs.