Ningthoukhongjam Nilachandra Singh vs State Of Manipur And Others

MV Muralidaran, J

[1] Heard Mr. Ch. Ngongo, learned counsel for the petitioner and Mr. H. Samarjit, learned Public Prosecutor for the respondent.

[2] The petitioner, who was arrayed as an accused in FIR No.42(5)2019 registered under Section 22(c)/29/60(3) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "ND & PS Act") on the file of Narcotics and Affairs of Border Police Station (NAB PS) for delivering WY Amphetamine tablets to the other accused, has come forward with this petition under Section 439 of Cr.P.C., to enlarge him on bail.

[3] The case of the prosecution is that on 28.5.2019 at about 1.00 P.M., a team of police personnel of NAB PS arrested accused Chanambam (O) Bala Devi and Sorokhaibam Bikram Singh while they were proceeding towards Imphal from Kakching side at Mayai Lambi in Hyundai Creta white colour car. While checking the car, the police personnel found white rambo plastic polythene bag on the foot mat of the rear left seat of the car. On examining, accused Bala Devi stated that the rambo bag belongs to her and on opening of the white rambo plastic polythene bag, they found 10 bundles similar packets wrapped with yellow cellophane taps and the 10 bundles contained 5 similarly packed small bundles wrapped with transparent cellophane and tissue. On opening of the bundles, the police personnel found the suspected WY Amphetamine tablets.

[4 ]. Further case of the prosecution is that on interrogation, accused Bala Devi disclosed that the present petitioner Ningthoukhongjam Nilachandra Singh gave her the contraband drug at Moreh and he will receive the same at Imphal near Khurai Lamlong Bazaar. Immediately, the team rushed to Khurai Lamlong Bazaar along with arrested accused Bala Devi and Sorokhaibam Bikram Singh. Upon reaching the said location, the petitioner was not present, however, the team went ahead towards Tinsid road and the accused Bala Devi pointed out that the petitioner Nilachandra Singh was standing near the Kombirei garden. Thereafter, the police personnel arrested the petitioner at 3.40 P.M. along with one leather side bag, two mobile handsets and also cash of Rs.5480/- and sent him into judicial custody.

[5 ]. The petitioner has filed the present petition seeking bail on the following grounds:

(a) The petitioner is quite innocent of the charges levelled against him by the Investigating Agency.

(b) The Investigating Agency has neither seized any substantiating articles, nor obtained any material evidence so as to connect the petitioner into the offences alleged against him.

(c) The petitioner has been implicated in the present case only based on the statement given by the accused Bala Devi.

(d)The petitioner being sole bread winner of the family, he has to look after his family.

(e)The petitioner was in custody from May 2019.

[6 ]. Respondent No.4 filed affidavit-in-opposition stating that the investigation revealed that the accused Bala Devi and Bikram Singh and the present petitioner are personally involved in carrying out illegal drug business. The accused persons, including the petitioner, are required to be put in judicial custody for some more days enabling the Investigating Authority to arrest their associates. At this stage of investigation, if the petitioner is released on bail, he will hamper investigation and tamper the evidence and also escape from the Investigating Agency, as he has accomplices across the border in Myanmar. There are evidences to prove the charge levelled against the petitioner. Hence, prayed for dismissal of the petition.

[7 ]. The learned counsel for the petitioner submitted that the petitioner is innocent of the charges levelled against him and that no incriminating article was seized from his possession at the time of his arrest. He would submit that the Investigating Agency has violated the mandatory provisions of the Act while carrying out the investigation of the case and that the petitioner has been falsely implicated in the present crime. The learned counsel further submitted that the petitioner is sole bread winner and he is in custody for more than five and half months.

[8 ]. Opposing the bail application, the learned counsel for the State submitted that on interrogation of accused Bala Devi, she disclosed that WY Amphetamine tablets were delivered to her by the petitioner and had told her that he will receive the same near Khurai Lamlong Bazaar. Therefore, the petitioner was arrested near Kombirei garden on 28.5.2019. He would submit that since huge quantity was involved, the petitioner cannot be granted bail.

[9 ]. I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

[10 ]. According to the petitioner, he is innocent and no way related to the alleged crime. More over, no contraband was seized from his possession. Only on the basis of the statement of the co-accused Bala Devi, he has been falsely implicated in the present crime.

[11 ]. It appears that earlier, the petitioner had approached the Special Judge (ND & PS), Thoubal, by filing Criminal Miscellaneous (Bail) case No.111 of 2019 seeking bail and by an order dated 23.7.2019, the bail was rejected. Thereafter, the petitioner approached this Court by filing the present bail application.

[12]. The say of the petitioner is that on 28.05.2019 when he was arrested by the police personnel, they seized only mobile phones and cash to the tune of Rs.5480/- from his possession and there was no contraband seized from him. Moreover, the petitioner is in judicial custody for nearly five and half months and almost entire investigation has completed.

[13]. By placing reliance upon the decision of the Hon'ble Supreme Court in Union of India v. Ram Samujh and another, reported in (1999) 9 SCC 429, the learned counsel for the petitioner contended that bail can be granted in a case where 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. Further, by placing reliance upon the decision of the Hon'ble Supreme Court in Abdul Rashid v. State of Bihar, reported in (2001) 9 SCC 578, the learned counsel argued that the statement given by the accused Bala Devi is inadmissible in evidence.

[14]. In Ram Sumujh, supra, the Hon'ble Apex Court held thus:

"5. The jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus: "37. Offences to be cognizable and non-bailable : (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 :-

(a) every offence punishable under this Act shall be cognizable;

(b) no Person accused of an offence punishable for a term of imprisonment of five years or more under this Act 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 offence while on bail.

(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 or any other law for the time being in force, on granting bail."

The aforesaid Section is incorporated to achieve the object as mentioned in the Statements of Objects and Reasons for introducing the Bill No. 125/1988 thus :

"Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of NDPS Act, 1985 the need to amend the law to further strengthen it, has been felt."

It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secretary, Union Territory of Goa, (1990) 1 SCC 95, as under :-

"24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine."

[15 ]. In Abdul Rashid, supra, the Hon'ble Apex Court observed that a confessional statement made by the appellant to the superintendent of Excise is inadmissible in evidence. In the instant case, based on the statement given by the accused Bala Devi only, the petitioner was implicated in this case.

[16]. The learned counsel for the petitioner submitted that when the statement of the co-accused has not been proved by preponderance of evidence, based on the said statement, it cannot be said that the present petitioner was involved in the alleged crime. There is some force in the argument of the learned counsel for the petitioner. In the absence of concrete proof to connect the present petitioner into the alleged crime, the statement of the co-accused Bala Devi cannot be relied upon by the prosecution.

[17 ]. By placing reliance upon the order of this Court dated 11.6.2019 passed in Bail Application No. 11 of 2019 (R.K.Sundaram v. State of Manipur and others), the learned counsel for the petitioner further submitted that inasmuch no recovery was made from the accused person, the accused is entitled to the benefit of bail.

[18 ]. On a perusal of the order of this Court produced by the petitioner, it is seen that in the said order, this Court had noted paragraph 13 the decision of the Punjab and Haryana High Court in the case of Lakhwinder Singh v. State of Haryana in CRM No.M- 11080 of 2016, decided on 21.04.2016, wherein it has been held that if no recovery was made from the accused persons, the Court ought to consider the same and grant the accused the benefit of bail.

[19]. In the case on hand, as stated supra, no contraband was seized from the petitioner by the Investigating Officer or other police personnel. Therefore, the order in Lakhwinder Singh, supra, is squarely applicable to the case on hand.

[20]. The involvement of the petitioner in the alleged crime is only based on the statement of the co-accused Bala Devi. Moreover, the alleged involvement of the petitioner in the crime stated by the prosecution in the affidavit-in-opposition to the bail application requires evidence and proof and the same cannot be taken in toto. Further, the involvement in carrying out illegal drug business by the petitioner and other accused alleged by the prosecution in the affidavit-in-opposition is purely based on the oral and documentary evidence.

[21]. Admittedly, the petitioner is in custody from 28.05.2019 and the prosecution has failed to establish unauthorised possession, purchase, selling and transportation and abetment to buy WY Amphetamine tablets by the petitioner. Further, in his petition as well the learned counsel for the petitioner has given an undertaking that the petitioner will fully co-operate with the investigation and also the trial.

[22]. Prima facie, nothing on record to show that there was abetment and criminal conspiracy between the accused persons. It is not the case of the respondent police that recovery was made from the petitioner. Further, the alleged quantity so recovered from the other accused is to be proved and determined only after the full fledged trial.

[23]. Leaving everything aside, this Court finds no material on record to show that the petitioner indulged in such activities in past also, rather circumstances as well as material available on record indicate that the petitioner is first offender. Moreover, best part of investigation is complete and nothing is required to be recovered from the petitioner and as such, this Court sees no reason to keep the petitioner behind bars for an indefinite period, especially when guilt, if any, of him is yet to be proved in accordance with law. Repeatedly, it has been held by the Hon'ble Supreme Court as well as High Courts that freedom of an individual is of utmost importance and same cannot be curtailed for an indefinite period because one is deemed to be innocent till the time he/she is not found guilty.

[24]. In Dataram Singh vs. State of Uttar Pradesh and another, reported in AIR 2018 SC 980, the Hon'ble Supreme Court has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. The Hon'ble Supreme Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the Investigating Officer and was not absconding or not appearing when required by the Investigating Officer. The Hon'ble Supreme Court has further held that if an accused is not hiding from the Investigating Officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a Judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:

"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

There is no doubt that the grant or denial of bail is entirely the discretion of the Judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons, (2017) 10 SCC 658."

[25]. It is settled law that object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

[26]. In Sanjay Chandra v. Central Bureau of lnvestigation, reported in (2012) 1 SCC 49, the Hon'ble Supreme Court held as follows:

"The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstance, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."

[27]. Following the decision in Sanjay Chandra, supra, the Hon'ble Supreme Court in Manoranjana Sinh Alias Gupta v. CBI, reported in (2017) 5 SCC 218, held as under:

"This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is

deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.

[28]. The Hon'ble Supreme Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another, reported in (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

v) character, behaviour, means position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

[29]. It is reiterated that no contraband was seized from the petitioner; best part of investigation was completed; the petitioner was in custody from 28.05.2019 and no bad antecedent against the petitioner. In view of the aforesaid discussion as well as law laid down by the Hon'ble Supreme Court, the petitioner has carved out a case for grant of bail.

[30]. Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in the aforesaid FIR, subject to his furnishing personal bond in the sum of Rs, 1,00,000/- with two local sureties in the like amount to the satisfaction of the Special Judge (ND & PS), Thoubal, with the following conditions:

(i) He shall report before the respondent police daily at 10.00 A.M. until further orders.

(ii) He shall make himself available for purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(iii) He shall not leave the territorial limits of the trial Court without prior permission.

(iv) He shall not tamper or intimidate the prosecution witnesses.

(v) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer.

(vi) It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

(vii) Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone.