Accused's health condition and incomplete chargesheet established significant grounds for granting bail under the NDPS Act.

ORDER (ORAL)

1. This is an application preferred under Section 439 Cr.P.C read with Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

2. Heard Mr. K.Ch. Gautam learned counsel for the applicant who has submitted that Smti X [name withheld as she is an HIV positive patient and as provided under Section 34 (I)(a) of The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 ] was arrested on 16.03.2023 from her residence at Demthring, Shillong in connection with Khliehriat P.S. Case No. 22(3)2023 under Section 21(b)/29 NDPS Act.

3. It is submitted that on 16.03.2023 on receipt of information by the police at Khliehriat, East Jaintia Hills that a person travelling in a vehicle was in possession of drugs, random checking of vehicles was conducted and, in the process, one vehicle being tourist Tata Sumo No. ML-05K-2432 was intercepted and on search being conducted one black backpack belonging to Smti. Lalduhwami Ralte was found to contain five plastic soap boxes containing yellowish colour powder which, on preliminary test being made gave a positive result for heroin. The quantity later seized was found to be 55.68 gms.

4. Smti. Lalduhwami Ralte was arrested in such connection and on her admission that she was directed to bring the said consignment to Shillong by Smti X, the police accordingly arrested the said Smti X.

5. While Smti X was in custody, the Investigating Officer filed the chargesheet on 09.05.2023 finding that a prima facie case is found well established under Section 21(b)/29 NDPS Act against both the accused persons therein, including Smti X. The case was placed before the court of the learned Special Judge (NDPS) at Khliehriat, East Jaintia Hills for trial.

6. The learned counsel has, however, submitted that the said chargesheet was not the complete chargesheet since in the same report, the I/O had stated that some samples were sent for forensic testing at the FSL, Shillong and the report of the same is still awaited and upon receipt of such report, a supplementary chargesheet will be submitted.

7. The learned counsel has also submitted that Smti X has preferred an application for grant of bail before the court of the learned Special Judge (NDPS) at Khliehriat, East Jaintia Hills but the same was rejected vide order dated 17.05.2023. Hence this application.

8. The learned counsel for the applicant has submitted that this bail application is pressed mainly on three grounds, Viz:

i. That since the charge-sheet is not a complete charge-sheet, therefore, the accused having been in custody for more than the stipulated period of 60 days, she is therefore entitled to be enlarged on default bail under Section 167 (2) Cr.P.C .

ii. That there is no evidence to link the accused with the alleged offence as the seizure of the alleged contraband substances was made at Khliehriat, while she was at Shillong at the relevant point of time and further that the statement of a co-accused cannot be used against another co-accused.

iii. That the accused is an HIV positive patient and requires specialized medical treatment, for which the same could only be able to be given to her if she is enlarged on bail.

9. On the first ground the learned counsel has submitted that more often than not, especially in NDPS cases the I/O would file a chargesheet, however with a prayer to file a supplementary chargesheet upon receipt of the FSL report, presumably the report as regard the composition of the substance sent for forensic test.

10. In such a situation, when the complete chargesheet has not yet been filed, the rights of the accused person, particularly as far as entitlement to default bail is conc