Bail should not be punitive; it is granted based on the presumption of innocence, with consideration of the accused's health and lack of incriminating evidence.

JUDGMENT (ORAL)

W. Diengdoh, J. - Heard Mr. S.A. Sheikh, learned counsel for the petitioner who has submitted that the petitioner is the nephew of the accused person Smti. Bina Sarkar who was arrested in connection with Nongpoh P.S. Case No. 190 (10) 2022 under Section 21(b)/29 of the NDPS Act and as such, has come before this Court with this instant petition seeking grant of bail on behalf of the said accused person.

2. It is also submitted that in due course, the Investigating Officer had filed the charge sheet, although, the same is not the complete charge sheet where a prayer was made before the Court of the learned Special Judge (NDPS), Nongpoh for filing of a supplementary charge sheet. As soon as the FSL report is received, the matter was however taken up for trial before the learned Special Judge (NDPS), Nongpoh and the stage of the trial is for recording of evidence. So far, only the examination-in-chief of one witness, that is, PW. 1 was taken up by the learned Special Court, whose evidence was recorded on 05.10.2023 and the cross-examination was reserved mainly on the ground that the learned counsel appearing for the accused has withdrawn from the case. The matter was again fixed on 19.10.2023 for cross-examination of PW. 1, but no cross-examination could be conducted due to the absence of the witness on the said date. In fact, the next date fixed by the court was on 01.11.2023 and on that date also the PW. 1 was found absent and as such, no cross-examination could be taken.

3. The learned counsel has also submitted that the accused person is not keeping well and even while she was in custody some months ago, she has to be hospitalized at Civil Hospital, Nongpoh for treatment of various ailments. On the ground of ill health of the accused person, this Court may also consider the same as a ground for grant of bail, submits the learned counsel. The learned counsel has further submitted that the accused is innocent and is not at all involved as far as the alleged offence is concerned and no incriminating materials or evidence is found against her and on this ground too, the accused person may be enlarged on bail.

4. Finally, the learned counsel has referred to the case of Anjali v. State (GNCT Delhi) reported in 2023 SCC OnLine Del 6122, wherein the Hon'ble High Court of Delhi dealing with an application for grant of bail of an accused person, who was in custody on charges of being in possession of an intermediate quantity of banned contraband substances, the Hon'ble Court, while opining that recovery of an intermediate quantity of ganja, would not come within the parameters of Section 37 of the NDPS Act, and also the fact that the accused was in custody since 15.05.2023, the investigation having been concluded and charge sheet filed, the Court vide order dated 06.09.2023, had accordingly granted bail to the accused person therein with certain conditions.

5. Another case referred to is the case of Rakesh Singh v. State of West Bengal reported in 2021 SCC OnLine Cal 3994, wherein the Hon'ble Calcutta High Court also dealing with an application for grant of bail, wherein the accused person was in custody in connection with the offences under the NDPS Act, the Court having considered the import of Section 37 of the NDPS Act, under the facts and circumstances of the particular case under consideration, has inter alia, opined that the allegations of the accused being in possession of an intermediate quantity of cocaine, the restriction under Section 37 of the NDPS Act, would not apply and also in consideration of the nature and gravity of the alleged offence and the materials on record, and also the fact that the accused person therein has been in custody since 23.02.2021, the Court had accordingly granted bail with certain conditions imposed. The State had preferred an appeal before the Hon'ble Supreme Court against this order, however, the Hon'ble Supreme Court in the case of State of West Bengal v. Rakesh Singh alias Rakesh K