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2022 Supreme(Megh) 110
HIGH COURT OF MEGHALAYA AT SHILLONG
W. Diengdoh, J.
LK Gracy - Appellant
Versus
State of Meghalaya - Respondent
BA No. 12 of 2022
Decided On : 30-09-2022
Mr. A. M. Bora, Sr. Adv. with Mr. D. K. Baidya, Mr. M. Prasad, Advocates., for the Petitioner; Mr. N. D. Chullai, AAG with Mr. S. Sengupta, Addl. PP, Ms. R. Colney, GA., for the Respondent
IMPORTANT POINT
The central legal point established in the judgment is the requirement of concrete evidence to link the accused person to the recovery of incriminating articles and the need to prove knowledge and control of explosive substances under Section 5 of the Explosive Substances Act.
Headnote:
Immoral Traffic (Prevention) Act - Bail Application - Section 3/4/5/6/7 of the Immoral Traffic (Prevention) Act, read with Section 370(3) IPC and Section 120/120(B)/121/121(A)/109/110 IPC read with Section 4/5 E.S. Act - Summary of Acts and Sections: The court discussed the provisions of the Immoral Traffic (Prevention) Act, Indian Penal Code, and Explosive Substances Act in relation to the recovery of incriminating articles from the accused person's property. The court emphasized the need for concrete evidence to link the accused person to the recovery and highlighted the requirement of proving knowledge and control of explosive substances under Section 5 of the E.S. Act.
Fact of the Case:
The petitioner, wife of the accused Bernard N. Marak, sought bail for her husband who was arrested in connection with cases under the Immoral Traffic (Prevention) Act and the Explosive Substances Act. The petitioner argued that the recovery of incriminating articles from the accused person's property may have been planted during his custody.
Finding of the Court:
The court considered the lack of concrete evidence linking the accused person to the recovery of explosive substances and emphasized the need for prima facie evidence to grant bail. The court also noted the possibility of the incriminating articles being planted and granted bail to the accused person with specific conditions.
Issues: The issues involved the recovery of incriminating articles from the accused person's property, the requirement of prima facie evidence for bail, and the potential planting of evidence during the accused person's custody.
Ratio Decidendi: The court emphasized the need for concrete evidence to link the accused person to the recovery of incriminating articles and highlighted the requirement of proving knowledge and control of explosive substances under Section 5 of the E.S. Act. The court also considered the lack of concrete evidence and the possibility of the incriminating articles being planted as grounds for granting bail.
Final Decision: The accused person, Bernard N. Marak, was granted bail with specific conditions, considering the lack of concrete evidence linking him to the recovery of explosive substances and the possibility of the incriminating articles being planted. The court emphasized the need for prima facie evidence and the benefit of doubt in favor of the accused person.
JUDGMENT
1. Heard Mr. A. M. Bora, learned Sr. counsel along with Mr. D. K. Baidya, learned counsel who has submitted that the petitioner herein is the wife of the accused Bernard N. Marak, who was arrested in connection with Tura Women PS Case No. 105(07) 2022 under Section 3/4/5/6/7 of the Immoral Traffic (Prevention) Act, read with Section 370(3) IPC and was also shown arrested in another case being Tura PS Case No. 166(07) 2022 under Section 120/120(B)/121/121(A)/109/110 IPC read with Section 4/5 E.S. Act on the basis of an FIR lodged by WPSI T. C. Marak before the Officer-in-Charge, Tura Police Station, West Garo Hills District.
2. The complainant has stated that she was deputed by the OC, Tura Women PS on 28.07.2022 to accompany the minor girl and also the minor boys to Rimpu Bagan, the place of occurrence (PO) connected with Tura Women P.S. Case No 105(07) of 2022 under section 3/4/5/6//7 Immoral Traffic (Prevention) Act in order to collect their belongings from the said place.
3. The said complainant was also accompanied by the Superintendent of Children Home Girls, Tura as well as the Superintendent of Children Home Boys, Tura and some staff of the said Children Home. Three other independent witnesses were also requested to accompany them to the PO.
4. The report went on to say that on reaching the PO, the minor girl as well as the minor boys took them to their rooms to collect their personal belongings and on completion of the formalities, the group proceeded to exit from the PO. However, on the way out on the stairs, they noticed one small hidden room at the corner. On checking the room in the presence of witnesses, they discovered some articles namely; (1) 4(four) nos. of crossbow (2) 15(fifteen) nos. of Crossbow arrow (3) 35(thirty-five) nos. of Neogel 90 explosives and (4) 100(one hundred) nos. of detonators. The said articles were seized.
5. On receipt of the said FIR, as stated above, a case was registered as Tura PS Case No. 166(07) 2022 under Section 120/120(B)/121/121(A)/109/110 IPC read with Section 4/5 E.S. Act.
6. The learned Sr. counsel has submitted that from the records of Tura Women PS Case No. 105(07) of 2022, it appears that the police or rather the I/O has made a thorough search of the PO and has made a number of seizures including bottles containing liquor and a number of condoms etc. However, at that point of time, that is, from 22.07.2022 to 28.07.2022, no explosive substances/articles were recovered, therefore an inference can be made that during the intervening period some persons may have planted the said incriminating articles. It may be mentioned that the accused, husband of the petitioner was in custody during this period, he was never taken to the PO nor was recourse taken under section 27 of the Evidence Act to pin the accused person to the alleged recovery of the said articles.
7. It was further submitted that there are no materials to show that the accused person has entered into a criminal conspiracy with the other accused persons, particularly the caretakers or any other person. The mere fact that the said articles were found and seized from the premises of the property of the accused person without indicating as to what is the purpose of use of the said articles cannot, prima facie, attract the offences of Section 109/110/120 and 120B IPC. As regard the alleged offence committed under Section 121/121A IPC, the learned Sr. counsel has submitted that from the narrative in the FIR, it cannot be remotely inferred that there are any incriminating materials against the accused person.
8. The learned Sr. counsel has also referred to an order passed by the learned Sessions Judge, West Garo Hills, Tura who while disposing of a bail application preferred by the petitioner herein on behalf of the accused person, Bernard N. Marak had vide order dated 08.09.2022 inter alia, had observed that from a perusal of the FIR there is no material that the accused person has committed an offence under Section 120/
