Themboi @ Smt. Themboi Singson Vs Union of India (Gauhati High Court)
Summary: Gauhati High Court granted bail to Themboi @ Smt. Themboi Singson in an NDPS case concerning recovery of 1118.210 grams of heroin, noting that no contraband had been recovered from her physical possession and the material against her was essentially the disclosure/confessional statement of the co-accused. The DRI alleged that two persons were apprehended at Lamka Guest House, Guwahati with 88 soap cases containing suspected heroin and that they disclosed that the petitioner was staying separately at Maa Kamakhya Grand Hotel to find prospective buyers.
Read SC Judgment in this case: Supreme Court Cancels NDPS Bail Granted to Themboi Singson by Gauhati HC
The Court noted that the petitioner was searched and arrested at a different place from where the contraband was recovered and that the prosecution had not produced material showing any previous criminal history. Relying upon State v. Pallulabid Ahmed Arimutta & Others and Tofan Singh v. State of Tamil Nadu, the Court held that a confessional statement recorded under Section 67 of the NDPS Act remains inadmissible at trial and that the confessional/voluntary statement of a co-accused by itself could not furnish reasonable grounds to believe that the petitioner was guilty. The Court also considered the petitioner’s incarceration since September 2023 and the failure of the trial to progress despite an earlier direction for completion within six months. Referring to Mohd. Muslim v. State (NCT of Delhi), Satender Kumar Antil v. CBI and Ravi Prakash v. State of Odisha, the High Court observed that prolonged incarceration and the constitutional guarantee of speedy trial under Article 21 are relevant notwithstanding the stringent bail restrictions in Section 37 of the NDPS Act.
Finding no material indicating that the petitioner would commit a similar offence if released, the Court granted bail on a bond of ₹1 lakh with two suitable local solvent sureties, one being a government employee, subject to stringent conditions restricting travel, interference with evidence and witnesses, requiring surrender of passport and regular appearance before the trial court. 48.3 48.3 48.3
Cases Discussed
| Case | Treatment / Principle |
|---|---|
| Mohd Muslim Vs State (NCT of Delhi), AIR 2023 SC 164 | The Court referred to the Supreme Court ruling that a plain and literal interpretation of Section 37 NDPS Act could effectively exclude bail altogether and lead to punitive or preventive detention; undue delay in trial can justify bail notwithstanding Section 37. |
| Narcotics Control Bureau Vs Mohit Agarwal, 2022 SCC OnLine SC 891 | DRI relied upon the decision to contend that long incarceration alone cannot justify bail without satisfying the embargo under Section 37 of the NDPS Act. |
| Satender Kumar Antil Vs CBI, (2022) 10 SCC 51 | Referred to for the proposition that grant of bail on account of undue delay in trial is not fettered by Section 37 and Section 436A CrPC applies to offences under the NDPS Act. |
| Raghubir Singh Vs State of Bihar, (1986) 4 SCC 481 | Cited for the principle that a reasonable, fair and just criminal trial is a constitutional obligation and speedy trial is a dimension of the fundamental right to life under Article 21. |
| Ravi Prakash Vs State of Odisha, 2023 0 Supreme (SC) 707 | Referred to for the proposition that prolonged incarceration can result in conditional liberty overriding the statutory embargo under Section 37 because prolonged incarceration implicates Article 21. |
| State Vs Pallulabid Ahmed Arimutta & Others, (2022) 12 SCC 633 | Applied while holding that the co-accused’s confessional/voluntary statement could not by itself constitute a ground for forming a reasonable belief that the petitioner was guilty. |
| Tofan Singh Vs State of Tamil Nadu, (2021) 4 SCC 1 | Applied for the principle that a confessional statement recorded under Section 67 of the NDPS Act is inadmissible in the trial of an NDPS offence. |
FULL TEXT OF THE GAUHATI HIGH COURT ORDER
1. Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing Counsel for the DRI.
2. This is an application made under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, praying for release of the accused person namely, Themboi @ Smt. Themboi Singson, on bail who was arrested on 16.09.2023 presently in custody in connection with CRL NDPS Case No. 92/2024 which is pending before the learned District & Session Judge, Kamrup (M) Guwahati arising out of DRI Case No. 16/CL/NDPS/HEROIN/DRI/GZU/2023-24 Dated 15.09.2023 of NDPS Act, 1985.
3. The petitioner earlier approached this Court by filing bail application being Bail Appln./1287/2024, however, this Court under its order dated 06.06.2024, after considering the nature of allegation as well as considering the initial stage of trial, the bail prayed for was refused to the petitioner.
4. It is contended by Mr. Ahmed, learned counsel for the petitioner that nothing was recovered from the possession of the petitioner and therefore, rigor of section 37(1) of the NDPS Act is not applicable in the present case. The petitioner has been arrested only on the basis of the disclosure statement of the co-accused. Therefore, the present is a fit case for grant of bail to the petitioner.
5. Mr. Ahmed, learned counsel relying on the decision of the Hon’ble Apex Court in the case of Mohd Muslim –VS- State (NCT of Delhi) reported in AIR 2023 SC 164 further contends that, there is no scope for early disposal of trial and the petitioner has been under incarceration for almost 1 year.
6. Per contra, Mr. S.C. Keyal learned standing counsel, DRI submits that huge quantity of 1118.210 grams of heroin has been recovered and the petitioner is one of the accomplice of the offence alleged and the present accused is also a co-participator and conspirator to the alleged offence
7. Mr. S. C. Keyal, learned Standing Counsel for the DRI, relying on the judgment of the Hon’ble Apex Court in the case of Narcotics Control Bureau –VS- Mohit Agarwal reported in 2022 SCC OnLine 891, argues that without having the satisfaction as regard the embargo placed in Section 37 of the NDPS Act, 1985, only on the ground of long incarceration an accused cannot enlarged on bail. The learned Additional Public Prosecutor has vehemently objected to the prayer of the petitioner for granting bail to the petitioner.
8. Section 37 of the NDPS Act, 1985, mandates that a Court can grant bail to an accused only after hearing the Public Prosecutor and after having satisfactions of twin conditions that there are reasonable grounds for believing that the accused is not guilty of the offence charged/alleged and that, he is not likely to commit any offence while on bail. Such satisfaction, which the Court is required to record, should be based on reasonable reading and does not call for a meticulous examination of the materials collected during the investigation or during the trial, otherwise the same will amount to mean a complete denial of bail under Section 37 of the NDPS Act, 1985 and the said provision would effectively exclude grant of bail altogether.
9. Grant of bail, on the ground of undue delay in the trial, cannot be said to be fettered by Section 37 of the NDPS Act, 1985, inasmuch as Section 436A of the Cr.P.C., is made applicable to the offences under the NDPS Act by the Hon’ble Apex Court in the case of Satender Kumar Antil –VS- CBI reported in 2022 10 SCC 51.
10. Section 36A of the NDPS Act, 1985, mandates that the offences under the Act are triable by a Special Court. In the considered opinion of this Court, such mandate of the legislature is to achieve the object that the trials are completed at the earliest possible time inasmuch as the conditions of bail and other provisions under the Act, 1985, are very stringent in nature. It is also well settled that reasonable, fair and just procedure in a criminal trial is a constitutional obligation on the part of the State. A speedy trial is also one of the dimensions of the fundamental right to life under Article 21 of the Constitution of India (Reference Raghubir Singh –Vs- State of Bihar 1986-4 SCC-481).
11. So far relating to the constitution of Special Court, it is stated at the bar that in the State of Assam, though different Sessions Judges and Additional Sessions Judges are designated as Special Courts under Section 36A of the NDPS Act, 1985, however, these Courts are also simultaneously entrusted with the different Sessions triable offences under IPC/BNS, Criminal Appeals under IPC/BNS and they are also notified as Special Judges under Special Act like POCSO Act, 2012. In view of such undisputed factual position, the object of speedy trial under the NDPS Act, as discussed hereinabove shall be hardly achievable.
12. In the case of Mohd. Muslim (Supra), Hon’ble Apex Court held that a plain and literal interpretation of the conditions under Section 37 of the NDPS Act, 1985 would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. It was further observed by the Hon’ble Apex Court that, therefore, the only manner in which the special conditions under Section 37 of the NDPS Act, 1985 can be considered within constitutional parameters is whether the Court is reasonably satisfied on a prima facie look at the materials on record that accused is not guilty. Any other interpretation would result in complete denial of the bail to a person accused of an offence, such as those enacted under Section 37 of the NDPS Act, 1985. It was also observed that grant of bail on the ground of undue delay in trial, cannot be said to be fettered by Section 37 of the NDPS Act, 1985 inasmuch Section 436A of Cr.P.C. is applicable to the offences under the NDPS Act also.
13. The Hon’ble Apex Court in some recent judgments and orders has been consistently taking a view that in case of prolonged incarceration, conditional liberty will override the statutory embargo under Section 37 of the Act inasmuch as such prolonged incarceration is against fundamental right guaranteed under Article 21 of the Constitution of India (reference Ravi Prakash vs State of Odisha reported in 2023 0 Supreme(SC) 707).
14. On the aforesaid settled proposition of law, now let this Court look into the facts of the present case.
15. The case of the DRI is that on 15.09.2023, on the basis of specific information that two persons are carrying substantial quantity of narcotic drugs staying in room No.5 of Lamka Guest House, Rajgarh, Link Road, House No.04, Anil Nagar, Guwahati, Assam, the DRI Officers of Guwahati zonal unit was formed and after following due process recovered 88 soap cases containing pinkish powdery substances suspected to be heroin, in a bag from the possession of the said two persons and they were apprehended.
16. On further enquiry, the apprehended persons informed the DRI Officers that there was another lady, who is the present petitioner, namely, Smt. Themboi Singson and the petitioner was staying at room number 407 of the Maa Kamakhya Grand Hotel at Chhatribari, Guwahati to find prospective buyers.
17. Accordingly the DRI Officers proceeded to the said hotel and arrested the present petitioner, namely, Smt. Themboi Singson along with the co-accused on 15.09.2023. It is on record that nothing was recovered from the physical possession of the present petitioner, though she is suspected to be accomplish along with other co-accused from whom the contraband was recovered. It is the case of the DRI that the recovery was made from Lamka Guest House, Rajgarh Link Road and the petitioner was searched and arrested at another place namely Maa Kamakhya Grand Hotel at Chhatribari. The bail prayer for the petitioner was earlier rejected for the reason that the trial is at very early stage and accordingly, a direction was issued to complete the trial within a period of six months. However, trial has not proceeded as required.
18. In the aforesaid backdrop and considering the fact that the prosecution has not been able to bring any material to show that the present applicant has any previous criminal history. The material so far available is the disclosure statement of the alleged co-accused from whom the recoveries were made. That being the position and in view of the ratio laid down in the case of State Vs. Pallulabid Ahmed Arimutta & Others reported in (2022) 12 SCC 633, and the ratio laid down in the case of Tofan Singh Vs. State of Tamil Nadu reported in (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act, 1985, will remain inadmissible in the trial of an offence under the NDPS Act and therefore, such statement more particularly on the basis of the confessional statement/voluntary statement of the co-accused cannot be a ground to have a reasonable belief that the accused is guilty of the offence.
19. Considering that she is languishing in jail since 15.09.2023 and in absence of any material to apprehend that in case the applicant is released on bail, she would again indulge in commission of similar offences, this Court is of the view that for the reasons recorded hereinabove, the petitioner has been able to make out a case for enlargement on bail in the crime in question. Accordingly, the bail stands allowed.
20. Considering the aforesaid aspects, propositions of law and in the given facts and circumstances of the present case, this Court is of the considered opinion that by imposing stringent conditions, the attendance of the petitioner before the learned trial Court could be secured and she can be barred from hampering and tampering or influencing the witnesses.
21. In view of the peculiar facts and circumstances of the case, the petitioner namely Themboi @ Smt. Themboi Singson, be released on bail on executing a bail bond of Rs. 1,00,000/- (One lakh) with two suitable local solvent sureties of like amount, one of which should be a government employee, to the satisfaction of the learned Court of Special Judge, Kamrup (M), Guwahati in connection with aforementioned case. The bail granted to the petitioner shall be subject to following conditions:-
(a) The petitioner shall not leave the territorial jurisdiction of learned Special Judge, Kamrup (M), Guwahati, without prior written permission from him/her;
(b) The petitioner shall not hamper and tamper with the evidence of the case;
(c) The petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or to any police officer.
(d) The petitioner shall surrender her passport, if any (if not already surrendered) before the learned Special Judge, Kamrup (M), Guwahati.
(e) The petitioner shall not try to contact any of the witnesses by any mode including telephone, social media etc.
(f) The petitioner shall furnish the present residential address with proof to the learned trial Court below and shall not change the said residence without prior permission of the learned trial Court.
(g) The petitioner shall appear before the learned trial Court below on each and every date of appearance during trial, subject to learned trial Court dispensing with such condition as and when required.
In the aforesaid terms, this bail petition is allowed.
