The Manipur High Court has granted regular bail to an accused facing commercial quantity drug charges under the NDPS Act after over 3.5 years of incarceration without framing of charge.

The Court rejected the prosecution’s argument that law and order issues due to Manipur Ethnic Violence in May 2023 hindered proceedings, noting that the judiciary's virtual hearing rules eliminate such logistical barriers.

The Court also held that long incarceration for more than 3 and a half years without any trial would amount to ‘preventive detention in disguise ’.

The Bench of Justice A Guneshwar Sharma held, "This Court is aware of the fact that in the early part of 2023, when the violence erupted in May, 2023, there was curfew and disturbance for some period; however, it may be pointed out that the working and function of the Court is not substantially affected except for initial few days as the High Court and District Courts have a robust of Video Conferencing (VC) facilities and High Court of Manipur has framed VC Rules for conducting trial through the VC platform...This Court does not see any reason why the charge hearing was not conducted through VC mode in terms of the applicable rules framed by the High Court. In the circumstances, this Court does not find any substances in the submissions of the learned PP that due to law & order problem and the health condition of the petitioner, he could not be produced before the Court; and hence, charge could not be framed till date."

Advocate Serto T Kom appeared for the Petitioner/Accused, while PP Y Ashang appeared for the Respondent

Brief Facts

A petition/application was filed by the Accused under Section 439 of the Cr.P.C. read with Section 167(2) of Cr. P.C. and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for releasing him on regular bail in connection with the FIR registered under Sections 21(c)/60(3)/25 of the NDPS Act.

The Petitioner/Accused, who is a daily labourer, was arrested by a team of Narcotics & Affairs of Border (NAB) Police Station, Manipur, while conducting frisking and checking by way of patrolling in the area of Kangvai Bazaar, Bishnupur along NH-2 on allegation of transporting banned contraband item (heroin). The above-mentioned FIR was registered against the petitioner on the allegation of possession of 487 grams of heroin.

Contentions of the Parties

It was submitted that there is a delay in trial, which is violative of Article 21 of the Constitution. It was submitted that an accused in a criminal case is entitled to a speedy trial and, in this case, the chargesheet was filed in 2023, and since then, charges have not been framed.

It was also submitted that the petitioner was suffering from a serious ailment of internal bleeding due to piles and was earlier admitted to hospital on the direction of the Court.

Per contra, the State submitted that the Petitioner was involved in an offence under ND&PS Act involving a commercial quantity. It was submitted that one of the reasons for non-framing of charge was due to the law and order situation in the State of Manipur and since the petitioner belongs to a particular community, there was difficulty in producing before the Trial Court.

Observations/Findings of the Court

The Court said that it is a well-settled proposition of law that a bail under the NDPS Act involving a commercial quantity, the Court has first to satisfy the twin tests laid down by Section 37(1)(b). Before applying the twin test, the prosecution has to be given an opportunity of being heard to object to the bail application involving a commercial quantity.

After that, the twin test will apply; firstly, the Court should have reasonable grounds for believing that the accused is not guilty of such an offence; and secondly, he is not likely to commit an offence while on bail. 

"In other words, while examining the bail application in a special statute such as ND&PS, the twin tests laid down in Section 37 of the ND&PS Act has to be followed while considering bail application on the ground of long incarceration without any trial or in a trial with no substantive progress. In the present case, this principle has to be applied...It is a case where trial is yet to be started and not a case of slow trial. The prosecution also does not deny the averment of the petitioner/accused that he is first time offender and he is not involved in any other criminal case except for the present FIR.", the Court observed.

It was also observed that in absence of sufficient materials for forming an opinion for presumption of culpable mind as provided under Section 35 of the Act, it will not be proper to adopt automatic presumption. It is settled principle of law that for making a statutory presumption of mens rea in a special statute, there should be sufficient materials as envisaged in the provision before the Court to presume culpable mind of mens rea.

"Long incarceration for more than 3 and half years without any trial would amount to ‘preventive detention in disguise ’. In the circumstances, this Court is of the view that the petitioner is entitled to be released on bail considering his past antecedents, long incarceration and health condition which requires frequent follow up treatment in higher hospital and the same will be hampered while in custody, as the medical facilities provided in the jail is not sufficient to deal with his conditions", the Court held.

Accordingly, the Court released the Petitioner/Accused on bail considering long incarceration vis-à -vis twin test under Section 37 of the NDPS Act, 1985.

Cause Title: Lunkhogin Kipgen v. The Officer-in-Charge, Narcotics & Affairs of Border (NAB) Police Station [Neutral Citation: 2026:MNHC:195]

Appearances:

Petitioner: Advocates Serto T Kom, Karung H Kom and Debora

Respondent: PP Y. Ashang and Dy. GA Phungyo Zingkhei

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