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IN THE HIGH COURT OF MANIPUR
Sanjay Kumar, J.
Mr. Lunkhomang Haokip - Applicant
Versus
Union of India, represented by Intelligence Officer – Respondent
Bail Appln. No. 7 of 2021
Decided On : 27-07-2021
Narcotic Drugs & Psychotropic Substances Act, 1985 - Sections 8(c), 22(c), 25, 28, 29, 30, 35, 60 and 37 – Criminal Procedure Code, 1973 - Section 439 - Seeks to be enlarged on regular bail - Search, seizure - 12th Assam Rifles detected WIY tablets, 64,000 in number - Applicant claims to be a school van driver according to him, was an off-season for schools he offered his services to drive vehicles on daily hire basis to earn his livelihood. In that process his cousin, asked him to drive and back in her car on next day. Applicant claims that he accepted this offer on payment as driving charges - Further claims that said lady and he drove in her Hyundai Santro Car on return journey when they reached check-post of 12th Assam Rifles he stopped car for verification and checking – Lady went to other side of check-post on foot, which was normal practice as per applicant, as all occupants of vehicles would alight and go on foot to other side of gate. However, during checking, a Subedar of 12th Assam Rifles detected WIY tablets, 64,000 in number, later confirmed as containing Methamphetamine, within vehicle. Applicant claims that he had no knowledge of existence of these drugs in car and when he looked for lady who had hired him, he could not find her.
Finding of the court : Despite the lack of clarity in the opening phrase of Section 43, the other provisions of the NDPS Act shed clear light on its true meaning and by applying the doctrine of harmonious construction, it can be safely concluded that even under Section 43 of the NDPS Act, it is only a duly empowered or authorized officer who can legally effect seizure and arrest - Methamphetamine tablets were found concealed under the rear seat of the vehicle which did not belong to the applicant and he was in it only as a hired driver. His knowledge of the hidden tablets is therefore in the realm of uncertainty and it is very well possible that he is totally innocent. Presumption of a culpable mental state, under Section 35 of the NDPS Act, would arise only if such knowledge is established. That apart, the fact that he has no past criminal record and is a married man with roots in society, makes it improbable that he would commit any offence, if set free. Thus, upon testing his claim on these parameters also, this Court must hold in his favour.
Result : Application allowed
JUDGMENT :
1. Heard Mr. Serto T. Kom, learned counsel for the applicant, and Mr. W. Darakeshwar, learned Sr. PCCG, for the respondent-Union of India.
2. The applicant is the accused in Special Trial No.54 of 2019 before the Special Court (ND & PS), Manipur [Ref: NCB Crime (FIR) No.03/04/NCB/Imp/ATS/ CL-2019 dated 30.01.2019, registered under Sections 8(c), 22(c), 25, 28, 29, 30, 35 and 60 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for brevity, ‘the NDPS Act’). By way of this application filed under Section 439 Cr.P.C. read with Section 37 of the NDPS Act, he seeks to be enlarged on regular bail.
3. The applicant claims to be a school van driver, by profession, in Churachandpur Town, Manipur. According to him, as January, 2019, was an off-season for schools in Churachandpur Town, he offered his services to drive vehicles on daily hire basis to earn his livelihood. In that process, on 28.01.2019, Thangminlen Haokip, his cousin, asked him to drive one Mrs. Nengneichong Lhungdim @ Chochong of Khomoi, Churachandpur, to Moreh and back in her car on the next day. The applicant claims that he accepted this offer on payment of Rs.500/- as driving charges along with free food. He further claims that on 29.01.2019, the said lady and he drove from Churachandpur to Moreh in her Hyundai Santro Car bearing Registration No. MN04A-2733. On the return journey from Moreh to Churachandpur, when they reached the check-post of the 12th Assam Rifles at Khundengthabi at around 3pm, he stopped the car for verification and checking. The lady, Mrs. Nengneichong Lhungdim, went to the other side of the check-post on foot, which was the normal practice as per the applicant, as all occupants of vehicles would alight and go on foot to the other side of the gate. However, during the checking, a Subedar of the 12th Assam Rifles detected WIY tablets, 64,000 in number, later confirmed as containing Methamphetamine, within the vehicle. The applicant claims that he had no knowledge of the existence of these drugs in the car and when he looked for the lady who had hired him, he could not find her. The applicant states that he was thereupon arrested by Gajender Singh, Subedar/General Duty of the 12th Assam Rifles, who had himself conducted the search, seizure and counting of the tablets, at around 7.10 am on 30.01.2019, after being detained the whole night, and he remained in custody since then.
4. The Narcotics Control Bureau, Imphal, filed a charge-sheet/final report against the applicant on 17.07.2019 before the Special Court (ND & PS), Manipur at Lamphelpat. He was charged with offences under Sections 8(c), 22(c), 25, 28, 29, 30, 35 and 60 of the NDPS Act. Charges were framed against him by the Special Court on 13.12.2019 and the Investigating Officer was examined as the first witness on 20.01.2020. While so, the applicant filed Criminal Petition No.8 of 2020 under Section 482 Cr.P.C. before this Court to quash the charge-sheet filed against him. By order dated 24.02.2020 passed therein, this Court directed the Special Court not to proceed with the case till the next date of hearing. The said order was extended from time to time and is stated to be still operative. The trial could not continue thereafter and remained stayed due to the order secured by the applicant himself. The applicant’s bail application in Criminal Misc.(B) Case No. 193 of 2020 was dismissed by the Special Court on 18.11.2020. Hence, this application.
5. It is a matter on record that 6.160 kgs of Methamphetamine, a psychotropic substance specified under the NDPS Act, was recovered from under the rear seat of the vehicle driven by the applicant on the fateful day. ‘Methamphetamine’ finds mention at Sl.No.159 of the Table in the ‘Notification specifying small quantity and commercial quantity’ issued by the Central Government. The commercial quantity for Methamphetamine is 50 grams.
Section 37 of the NDPS Act states that no person accused of an offence involving a commercial quantity s
SupremeToday
Point of Law : Narcotic substances - Illicit drugs/substances - Grant of bail - prosecution’s case against applicant having been rendered shaky, this Court is also inclined to accept plea that requis....
The stringent bail conditions under the NDPS Act and the need for substantial probable causes to grant bail.
Prima facie non-compliance of the second proviso to Section 42(1) of the NDPS Act and the period of incarceration were the main legal points established in the given judgment.
The court ruled that searches conducted by unauthorized officers under the NDPS Act are illegal, warranting the grant of bail due to prolonged detention without trial.
The distinction between Sections 42 and 43 of the NDPS Act, and the applicability of Section 50 of the NDPS Act to the search of a person's baggage.
Strict adherence to the NDPS Act's provisions regarding search and seizure is essential; failure to comply can lead to the invalidation of evidence and grant of bail.
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