Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 561

IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Sanjay Kumar Medhi, J.
Smt. Chonghoi Haokip, W/o. Shri Lungsibui Thiumai – Petitioner
Versus
Union of India Rep. By The Standing Council To The Directorate of Revenue Intelligence – Respondent
Bail Appln./1635 of 2022
Decided On : 11-08-2022

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Y S Mannan
For the Respondent:Mr. SC Keyal, SC, Ms. P Das, Advocate.

Point of Law: Hon’ble Supreme Court has held that before grant of bail, it is necessary for Court to come to a satisfaction that there are reasonable grounds for believing that accused is not guilty of such offence.

Headnote:
Criminal Procedure Code, 1973 – Section 439, 439A – Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985 – Section 8(c)/21(c)/22(c)/23(c)/25, 36A(4), 37, 37(2) – Bail application - Offences to be cognizable and non-bailable - DRI by referring to Section 36A(4) of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) submits that though mandatory period has been prescribed as 180 days, proviso prescribes, if it is not possible to complete investigation within stipulated period, such period may be extended by Special Court up-to one year on report of Public Prosecutor indicating progress of investigation and specific reasons for detention of accused beyond prescribed period - It has been held that such an application, though may be filed by Investigating Officer, has to be routed through Public Prosecutor with due application of mind. (Para 10).
Findings of the Court :
Ground of pregnancy, though relevant, has to be examined from nature of offence. When Court, prima facie has come to a finding that there is no scope of enlarging applicant on bail at this stage, issue of pregnancy, in opinion of this Court shall not play a major role. While coming to said finding, this Court has taken into consideration communication made by Medical and Health Officer, Central Jail, regarding health condition of applicant, treatment provided to her, timely and regular check-ups etc.
Result: Application dismissed.

JUDGMENT :

Heard Shri YS Mannan, learned counsel for the applicant, namely, Smt. Chonghoi Haokip, who has filed this bail application under Section 439 of the Cr.PC praying for bail in connection with DRI Case No.18/CL/NDPS/HEROIN & METH/DRI/GZU/2021-2022 under Section 8(c)/21(c)/22(c)/23(c)/25 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.

2. The applicant was arrested on 04.02.2022.

3. Pursuant to the order of this Court dated 12.07.2022, the scanned copies of the case record have been received. Further, Shri SC Keyal, learned Standing Counsel, DRI has also produced the records of the case in original.

4. At the outset, the learned counsel for the applicant has submitted that the applicant along with another had earlier filed BA/871/2022 which, however, was rejected vide order dated 05.05.2022.

5. The following contentions have been advanced by the learned counsel for the applicant in support of the prayer for bail :

i) The applicant has completed 185 days in custody and therefore, she is entitled to default bail ;

ii) As per Section 439A of the Cr.PC (as per the Assam Amendment), the applicant falls within the category of “minor, woman and sick or infirm” and therefore, entitled to a special privilege ;

iii) The applicant is a woman of 32 weeks pregnancy and therefore, she is required to be released on bail.

6. In support of his submissions, Shri Mannan, learned counsel has placed reliance upon the following decisions:

i) Order dated 29.01.2021 passed by the Karnataka High Court (Kalaburagi Bench) in Crl. Pet. No. 200107/2021 (Smti. Rekha @ Siddamma & Anr. Vs. State of Karnataka);

ii) Order dated 12.05.2022 passed by the Karnataka High Court in Crl. Pet. No. 2306/2022 (Nethra Vs. State of Karnataka);

iii) Order dated 24.07.2021 passed by the Himachal Pradesh High Court in Crl. MP(M) 243/2021 (Monika Vs. State of HP);

iv) (2009) 17 SCC 631, (Sanjay Kumar Kedia Vs. Intelligence Officer, NCB).

7. In the case of Smti. Rekha @ Siddamma (supra), the Hon’ble Karnataka High Court granted bail to the first applicant who was a pregnant lady. The accusation, however, was mainly with a clash within two groups.

8. In the case of Nethra (supra), the Hon’ble Karnataka High Court considered the bail application of the applicant who was a lady holding that she was statutorily entitled for such consideration.

9. In the case of Monika (supra), the Hon’ble Himachal Pradesh High Court had also considered the fact of pregnancy of the applicant as a relevant factor for consideration of bail. The learned counsel has also drawn the attention of this Court to the elaborate discussions made in this case by the Hon’ble Himachal Pradesh High Court wherein, reference has also been made to the case of Dataram Singh Vs. State of Uttar Pradesh, reported in (2018) 3 SCC 22 wherein, the Hon’ble Supreme Court has held that the exercise of consideration of a bail is a discretionary one which has to be done judiciously, compassionately and in a humane manner.

10. In the case of Sanjay Kumar Kedia (supra), the Hon’ble Supreme Court had considered the issue of grant of extension beyond the mandatory period of 180 days. By referring to the earlier judgment of Hintendra Vishnu Thakur Vs. State of Maharashtra, reported in (1994) 4 SCC 602, it has been held that such an application, though may be filed by the Investigating Officer, has to be routed through the Public Prosecutor with due application of mind.

11. Per-contra, Shri SC Keyal, learned Standing Counsel, DRI by referring to Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) submits that though the mandatory period has been prescribed as 180 days, the proviso prescribes, if it is not possible to complete the investigation within the stipulated period, such period may be extended by the Special Court up-to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the prescr