2024:MLHC:1097
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA No. 77 of 2024
Date of Decision: 28.11.2024
Shri. Dilu Joy Reang
Son of Jogen Reang
Of Ahalyapur, P.O & P.S-
Kanchanpur, North Tripura
Presently in District Prison &
Correctional Home, Nongpoh
..…Petitioner/Accused
-Versus-
The Union of India, Represented
by Shri. Indranil Chaliha Custom
Headquarter (Preventive) Unit,
Shillong
……Respondent
Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Pandit, Adv.
For the Respondent(s) : Dr. N. Mozika, DSGI
Mr. J.I. Nongrum, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1
2024:MLHC:1097
ORDER (ORAL)
1. This bail application has been filed under the provision of Section
483 BNSS read with Section 37 of the NDPS Act, 1985 by the petitioner
with a prayer for grant of bail in connection with Criminal NDPS Case
No. 8 of 2023 pending before the Court of the learned Special Judge
(NDPS), Nongpoh, Ri-Bhoi District.
2. The brief facts of the case is that the Customs Officials, on receipt
of reliable telephonic information on 23.05.2023 at about 11.00 pm or
so, had intercepted a Maruti Alto vehicle bearing Registration No. ML
05 Q 6794, the said group of Customs Officials having followed the
occupants of the said vehicle No. ML 05 Q 6794 at about 3:00 am of
24.05.2023, the vehicle was asked to stop but on the said order not being
complied with and the vehicle was speeding away, the officers chased
the vehicle and managed to intercept it at Bhoirymbong market. On
checking the vehicle, 4 persons were found as occupants and on being
questioned they agreed to lead the officers to the exact place where they
have hidden the contraband substance.
3. On reaching Liarbang Village, the said persons led the officers to a
forested area where 24 packets of compressed blocks wrapped in brown
paper suspected to be ganja were found. On due procedure being
followed as far as search and seizure is concerned, the contraband
substance was removed from the place it was found to the custody of the
Customs Officials.
2
2024:MLHC:1097
4. The competent authority has then arrested the four occupants of
the vehicle namely; Shri. Dilu Joy Riang, Shri. Sanjib Gohai, Shri. Sujit
Kumar Rai and Shri. Vicky Kumar and investigation was launched
thereafter.
5. The Investigating Officer, on completion of his investigation has
filed the Final Complaint before the court of the learned Special Judge
(NDPS), Nongpoh, finding that the accused persons above named are
involved in the dealing, storage and transportation of the contraband
substance, i.e. cannabis (ganja) weighing about 149.55 kg and thereby,
have contravened the provisions of Section 8(c) of the NDPS Act by
committing an offence punishable under Section 20(b)(ii)(C) read with
Section 23 and 29 of the said NDPS Act. The four accused persons are
now undergoing trial before the trial court at Nongpoh. It may be
mentioned that another person has also been named as one of the
accused in this case, whose name is Sankar Saha said to be the
mastermind of the whole operation, but who could not be apprehended
till date.
6. Mr. S. Pandit, learned counsel for the petitioner has submitted that
the petitioner who is a police constable by profession had come to
Shillong on 23.05.2023 along with his friend Shri. Bandu Reang for his
friend’s medical treatment at NEIGRIHMS and for sightseeing and while
in Shillong he met his friend Shri. Sanjib Gohai who is from Tripura.
7. On 24.05.2023, while travelling with Shri. Sanjib Gohai in a Taxi
on the way to Bhoirymbong, the vehicle was intercepted by the Customs
Officials and on an allegation that some contraband substance, namely,
3
2024:MLHC:1097
Ganja was detected at a forested area called Liarbang, Ri-Bhoi District,
he along with others were arrested.
8. The learned counsel has submitted that the petitioner is nowhere
involved with the alleged offence and there is no iota of evidence to
prove his involvement in the case. However, in the Final Complaint filed
before the trial court on the statement of the co-accused recorded under
Section 67 of the NDPS Act, the petitioner was said to be involved in the
case and has been implicated as one of the co-accused.
9. The learned counsel has further submitted that even on perusal of
the final report, it is seen that there is nothing in evidence to link the
petitioner to the transportation and storage of the alleged contraband
substance. As to his connection with the main accused, that is, Shri.
Sankar Saha, here too, there is no evidence to prove this allegation and
no call details report (CDR) was also produced by the prosecution to
prove such connection.
10. The learned counsel has reiterated that on the basis of the
statement made by the co-accused under Section 67 NDPS Act, the
petitioner could not have been made to stand trial in the case since such
statements are not admissible in evidence.
11. Another issue canvassed by the petitioner is that, having been in
custody for more than ten months, the progress of the trial being very
slow, there is no likelihood of the same being completed in a few
months’ time and as such, on the ground of delay, the petitioner may be
enlarged on bail to allow him to prepare his defence as far as the trial is
concerned.
4
2024:MLHC:1097
12. In support of his submission, the learned counsel has cited the
following cases:
i. Order dated 04.08.2022 in SLP Criminal No. 4173/2022
passed in Shariful Islam @ Sarif v. State of West Bengal;
ii. Order dated 05.08.2022 in Criminal Appeal No. 1169 of
2022 passed in Gopal Krishna Patra @ Gopalrusma v.
Union of India; and
iii. Order dated 04.05.2023 in SLP Criminal No. 3221/2023
passed in Hasanujjaman & Ors. v. The State of West
Bengal.
13. The petitioner being a Government servant working in the Police
Department in Tripura with no criminal antecedent, if enlarged on bail,
there is no possibility of him absconding or tampering with the witnesses
and he will also abide by the conditions that this Court may impose,
submits the learned counsel.
14. Dr. N. Mozika, learned DSGI appearing for the respondent has
strongly opposed the prayer made for grant of bail on the ground that a
perusal of the Final Complaint and the statement made by the co-accused
would reveal that the petitioner is actually involved in the case as his
presence in the vehicle along with the co-accused, particularly Shri.
Sanjib Gohai at the area of occurrence in the dead of night cannot be
explained. In fact, it has been stated that he was particularly referred by
the main accused Shri. Sankar Saha to be the recipient of the said
5
2024:MLHC:1097
consignment of contraband substance. In such a situation and the
accompanying circumstances, it cannot be said that the petitioner herein
is prima facie innocent.
15. On the issue of delay, the learned DSGI has submitted that the trial
court has diligently proceeded with the trial and has also heard the
parties including the petitioner herein before consideration of charges.
Vide order dated 21.10.2024 the trial court has considered the matter and
has found that there is a prima facie case against the accused person
including the petitioner herein and has therefore directed that the charges
under the relevant provisions of law be framed accordingly. As such,
there is no delay in the trial as alleged by the petitioner. It is prayed that
this petition may be dismissed as devoid of merits.
16. This Court on consideration of the argument advanced by the
respective parties, has perused the petition as well as the Final
Complaint, copy of which has been produced herein.
17. The fact that a large quantity of contraband substance, preliminary
tested as cannabis (ganja) was seized from the forested area at Liarbang
cannot be denied. There is no evidence as to who has kept the said ganja
in the place it was found. But its discovery on the leading of the accused
persons can only lead one to understand that there is a nexus between the
accused persons and the said consignment.
18. As has been submitted, from the Final Complaint which also
contained record of the statement made by the accused persons and other
relevant witnesses, the statement made by the petitioner is found
contradictory since he has stated that he had gone to the place of
6
2024:MLHC:1097
occurrence with Sanjib Gohai by motorbike when the arresting officials
have noted that he was found to be one of the occupants of the vehicle
bearing registration No. ML 05 Q 6794. In his statement he has further
submitted that he was in touch with a ganja dealer who gave him a
contact number belonging to one Rabong of Guwahati. Even his friend,
Sanjib Gohai has stated that the owner of the ganja is Shri. Sankar Saha
and that he was telephonically informed by Sankar Saha that the ganja
was at Liarbang (PO) to be delivered to Dilu Joy Reang, the petitioner
herein.
19. Though the statement made under Section 67 NDPS Act as well as
the statement of a co-accused is not admissible in evidence, however
when it comes to consideration of bail, such statement can be taken note
of, if not wholly relied upon.
20. Since the case involved seizure of commercial quantity of
contraband substance (ganja), therefore, when the question of bail to
accused persons involved in such case comes for consideration before
the competent court of jurisdiction, the provision of Section 37 of NDPS
Act, 1985 cannot be ignored.
21. The said provision reads as follows:-
“[37. Offences to be cognizable and non-bailable.—(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)—
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
[offences under section 19 or section 24 or section 27A
7
2024:MLHC:1097
and also for offences involving commercial quantity] shall
be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such release,
and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not guilty
of such offence and that he is not likely to commit any
offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of
sub-section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the
time being in force, on granting of bail.]”
22. What would be material here is to look at the provision of Section
37(1)(b)(ii), which provides that on the public prosecutor being heard in
the matter, the court must be satisfied that there are reasonable grounds
to believe that the accused person is not guilty of the offence alleged and
secondly, that he is not likely to commit any offence while on bail.
23. For this Court to believe that the accused persons in question are
not guilty of the offence alleged, there must be reasonable grounds for
such assumption. What is ‘reasonable ground’ has been discussed and
explained in a catena of judgment by the Hon’ble Supreme Court. In this
regard, this Court is drawn to the explanation of the expression given by
the Hon’ble Supreme Court in Union of India v. Shiv Shankar Kesari,
(2007) 7 SCC 798. The relevant paragraph for this limited purpose being
para 7, 8, 9 & 10 are reproduced herein below:-
“7. The expression used in Section 37(1)(b)(ii) is "reasonable
grounds". The expression means something more than prima facie
grounds. It connotes substantial probable causes for believing that
8
2024:MLHC:1097
the accused is not guilty of the offence charged and this reasonable
belief contemplated in turn points to existence of such facts and
circumstances as are sufficient in themselves to justify recording
of satisfaction that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima facie meaning of
reasonable in regard to those circumstances of which the actor,
called on to act reasonably, knows or ought to know. It is difficult
to give an exact definition of the word “reasonable”.
“7. … In Stroud's Judicial Dictionary, 4th Edn., page 2258
states that it would be unreasonable to expect an exact
definition of the word ‘reasonable'. Reason varies in its
conclusions according to the idiosyncrasy of the individual, and
the times and circumstances in which he thinks. The reasoning
which built up the old scholastic logic sounds now like the
jingling of a child's toy.
(See: Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar
[(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water
Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd.
[(1989) 1 SCC 532]
9. “9. …It is often said ‘an attempt to give a specific meaning to
the word “reasonable” is trying to count what is not number and
measure what is not space’. The author of Words and Phrases
(Permanent Edn.) has quoted from Nice & Schreiber, In re [123 F
987 at p. 988] to give a plausible meaning for the said word. He
says
‘the expression “reasonable” is a relative term, and the facts of
the particular controversy must be considered before the
question as to what constitutes reasonable can be determined’.
It is not meant to be expedient or convenient but certainly
something more than that.”
10. The word “reasonable” signifies "in accordance with reason".
In the ultimate analysis it is a question of fact, whether a particular
act is reasonable or not depends on the circumstances in a given
situation. (See Municipal Corpn. of Greater Mumbai v. Kamla
Mills Ltd.) [(2003) 6 SCC 315]”
9
2024:MLHC:1097
24. In the considered view of this Court, there are no reasonable
grounds to believe that the petitioner is not guilty of the offence alleged
and since this bail application has been preferred after the charge sheet
has been filed, there is no change in circumstances to allow the prayer of
the petitioner.
25. As to the contention on the issue of delay, this Court is in
agreement with the submission of the learned DSGI that considering the
pace of the trial before the trial court, no delay of the proceedings can be
attributed to the trial court. The authorities relied upon by the petitioner
in this regard will not be applicable.
26. Under the facts and circumstances of this case, this Court finds
that no case has been made out for grant of bail to the petitioner at this
stage. Petition is accordingly dismissed.
27. Petition disposed of. No costs.
Judge
10