JUDGMENT 1. This petition has been filed by the petitioner, who is younger brother of accused no.2, under Section 439 Cr.P.C. read with Section 37 of the Narcotic Drugs & Psychotropic Substances Act, 1985 [for short, 'the ND & PS Act'] seeking bail to accused no.2, namely Ch. Konai Maring, who is in jail, in connection with FIR No.61(6)2022 under Section 21(c)/29 ND & PS Act on the file of City Police Station. 2. Heard Mr. Osbert Khaling, learned counsel for the petitioner/accused no.2 and Mr. H. Samarjit, the learned Additional Public Prosecutor for the respondents. 3. The case of the prosecution is that on 4.6.2022 at about 1.00 pm, the CDO team along with women police personal were conducting normal frisking and checking patrolling around Paona Bazar BT road and at that time, one man and one woman were found standing along with one apple cartoon box and two thermo flasks in a very suspicious manner in front of eastern gate of Johnstone Hr. Secondary School along NH-2. Immediately, they were detained for spot verification and the woman identified herself as Lhingboi Kipgen and man identified himself as Ch. Konai Maring. On their body check, mobile phone with sim cards, aadhar card, some cash were found from their possession. On being asked about the contents of the apple cartoon box and two thermo flasks, they replied that it contained apples. But on opening it, the team found to contain 30 numbers of soap cases containing suspected heroin no.4 and opening the thermo flasks, 20 numbers of soap cases containing suspected to be heroin were found, weighing 658 grams without the soap cases. Thereafter, by observing all formalities, both were arrested and upon bringing them to the police station, an FIR No.61(6)2022 under Section 21(c)/29 ND & PS Act was registered against them. 4. Mr. Osbert Khaling, the learned counsel for the petitioner submitted that accused nos.1 and 2 are close friends and on 4.6.2022, accused no.2 was on his way to Dewlahland to visit his handicapped nephew Mano Tontanga for providing some help and he first got down at Johnstone Hr. Secondary School to catch another auto for Dewlahland and while waiting for an auto, he saw accused no.1 standing with heavy loads of box. Secondary School to catch another auto for Dewlahland and while waiting for an auto, he saw accused no.1 standing with heavy loads of box. On seeing accused no.1 with heavy box, who is also going towards Khuman Lampak, which is on the same way to Dewlahland, accused no.2, being family friend, without knowing the contents of the box, helped her. 5. The learned counsel further submitted that accused no.2 has not involved in the present case, as in her confession accused no.1 stated that the contraband were received by her from a person at Myanmar and she also stated that the seized items belong to her and that she was supposed to contact one Boicy, who was to arrange for the suspected heroin no.4 to be picked up from her near Khuman Lampak by some associate. 6. The learned counsel would submit that accused no.2 is innocent and charges levelled against him are false and fictitious and nothing was recovered from his possession on the date of the alleged arrest as per the seizure memo. In fact, accused no.2 was unaware of the contraband that was concealed inside the apple carton box and therefore, the said seized items were not under the control of accused no.2. 7. The learned counsel next submitted that earlier accused no.2 approached the learned Special Judge, Manipur by filing Cril. Misc. (B) Case No.162 of 2022 for bail and by the order dated 19.7.2022, the same was rejected on the ground that accused no.2 has not mentioned anything as to what he was doing at the relevant time of his arrest, nor mentioned from where he came, how he met accused no.2. According to learned counsel, the learned Special Judge erred in rejecting the bail application of accused no.2 by not properly appreciating the facts. The said order of the learned Special Judge is erroneous and the same is liable to be set aside. It is the submission of learned counsel for the petitioner that accused no.2 has been falsely implicated in this case. Thus, a prayer is made to grant bail to accused no.2. and that accused no.2 is ready to obey the conditions imposed by this Court, while granting bail. 8. Mr. It is the submission of learned counsel for the petitioner that accused no.2 has been falsely implicated in this case. Thus, a prayer is made to grant bail to accused no.2. and that accused no.2 is ready to obey the conditions imposed by this Court, while granting bail. 8. Mr. H. Samarjit, the learned Additional Public Prosecutor submitted that accused no.2 is directly involved in taking the contraband to Dimapur and in fact, on interrogation, accused no.2 disclosed that he accompanied accused no.1 and he dropped the apple cartoon box containing heroin powder from the passenger bus and loaded in an auto rickshaw for proceeding towards Khuman Lampak at the parking area at Imphal. He would submit that from seeing the call history of the mobile phones, it was found that both accused nos.1 and 2 frequently talked to each other and that both in collusion with other associates, have committed the offence under Section 21(c)/29 of ND & PS Act for their wrongful gain. There are ample evidence that both the accused have involved in trafficking of huge quantity of illegal drugs, therefore, letting accused no.2 at this stage will hamper the smooth investigation of the case. 9. The learned Additional Public Prosecutor urged that day and day out the police personnel of Manipur arresting accused involved in trafficking drugs and the State Government is also trying its level best to tackle the problem by initiating war against drugs programme. Letting these type of persons like accused no.2 will add fuel to the fire and on the other hand putting persons like accused no.2 behind bars to a maximum period permissible under law will at least help curb the drug problem to some extent and save young children from the clutches of drug addiction. Thus, a prayer is made to dismiss the petition. 10. This Court considered the rival submissions and also perused the materials available on record. 11. The petitioner is the younger brother of accused no.2, who is in judicial custody since 4.6.2022. The petitioner has filed the instant bail petition stating that accused no.2, being a family friend of accused no.1, helped her in good faith without knowing the contents of the box. Accused no.2 is innocent and the charges levelled against him are false and fictitious and nothing was recovered from his possession on the date of the arrest as per the seizure memo. 12. Accused no.2 is innocent and the charges levelled against him are false and fictitious and nothing was recovered from his possession on the date of the arrest as per the seizure memo. 12. On the other hand, the learned Additional Public Prosecutor contended that on interrogation, accused no.2 stated that he accompanied accused no.1 and he dropped the apple carton box containing heroin powder from the bus and loaded in an auto for proceeding towards Khuman Lampak at the parking area at Imphal. 13. As could be seen from the seizure memo annexed to the bail petition, it is clear that the apple cartoon box and thermo flasks were seized from the possession of accused no.1 and the seizure made from accused no.2 is only (i) Mobile phone and (ii) Aadhar card. 14. According to the petitioner, while giving voluntary statement before the Judicial Magistrate First Class, Imphal West-II, accused no.1 stated that accused no.2 was just helping her to pick up the apple cartoon box as it was heavy, thereby evidencing that accused no.2 did not had possession and control over the contrabands. The aforesaid statement made by the learned counsel for the petitioner is acceptable for the reason that no contraband was seized and/or recovered from accused no.2. Thus, the involvement of accused no.2 in trafficking the illegal drugs is doubtful. However, the same would be proved during trial only. 15. While rejecting bail petition of accused no.2, the learned Special Judge observed that the confession of accused no.1 before the Magistrate appears to be to save the present accused person and that accused no.2 did not explain the circumstance of his presence at the spot of arrest. The circumstances of the presence of accused no.2 at the spot of arrest though explained by petitioner, the same would also be evident after completion of trial. The prosecution is bound to prove the possession and control of illegal drugs by accused no.2. But in the instant case, prima facie, the same has not been proven as per the available materials. 16. According to the petitioner, accused no.2 was coming down to Imphal to visit and stay with his physically handicapped nephew at Dwlahland, as he was alone and required help and support and coincidently met accused no.1 at the auto stand near Jhonstone Hr. Second School. The said statement of the petitioner has not been disproved by the respondent. 16. According to the petitioner, accused no.2 was coming down to Imphal to visit and stay with his physically handicapped nephew at Dwlahland, as he was alone and required help and support and coincidently met accused no.1 at the auto stand near Jhonstone Hr. Second School. The said statement of the petitioner has not been disproved by the respondent. Prima facie, there is no material to believe that accused no.2 was in possession of banned drugs and has involved in the commission of the crime alleged by the respondent. 17. It is settled that bail can be granted in a case where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 18. The jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, it is apposite to refer Section 37 of the Act, which reads thus: '37. Offences to be cognizable and non-bailable: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 :- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act 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 or any other law for the time being in force, on granting bail.' 19. (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 or any other law for the time being in force, on granting bail.' 19. In the absence of concrete proof to connect accused no.2 into the alleged crime, it cannot be said that accused no.2 involved in the commission of the crime. It is to be pointed out that no recovery was made from accused no.2. In this regard, the law is if no recovery was made from the accused person, the Court ought to consider the same and grant the accused the benefit of bail. As stated supra, no contraband was seized from accused no.2 by the Investigating Officer or any of the other police personnel. Therefore, this Court is of the prima facie view that accused no.2 has established his case for grant of bail. 20. It is reiterated that the involvement of accused no.2 in the alleged crime is only based on the complaint, wherein the complainant stated that on questioning, accused no.2 stated that he along with Lhingboi Kipgen (accused no.1) were going to proceed to Dimapur for delivering the soap cases to one Boishi of Dimapur. The involvement in carrying the illegal drug business by accused persons alleged by the prosecution is purely based on the oral and documentary evidence. Admittedly, the prosecution has failed to establish the unauthorised possession, purchase, selling and transportation of heroin by accused no.2. 21. According to the respondents, the investigation completed and charge-sheet has already been filed on 29.8.2022 before the trial Court. Prima facie, this Court is of the view that there are reasonable grounds for believing that accused no.2 is not guilty of the offence alleged against him and that he is not likely to commit any offence while pending trial of the case. 22. At this juncture, it is worthwhile to mention the decision of the Apex Court in the case of Dataram Singh v. State of Uttar Pradesh and another, reported in AIR 2018 SC 980 : 2018 Legal Eagle (SC) 68, wherein the Hon'ble Supreme Court has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. The Hon'ble Supreme Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigation to the satisfaction of the Investigating Officer and was not absconding or not appearing when required by the Investigating Officer. The Hon'ble Supreme Court has further held that if an accused is not hiding from the Investigating Officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a Judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: '2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons, (2017) 10 SCC 658 : 2017 Legal Eagle (SC) 843.' 23. As far as the arguments of learned Additional Public Prosecutor that every day the newspaper headlines carry news about arrest regarding drugs and crime related to drugs is concerned, while granting anticipatory bail to two Assistant Sub-Inspector of Police who were said to be helped the accused persons for illegal possession and transportation of drugs and even for their release by receiving amount from them, this Court remarked that 'as if the fence itself grazed the crop'. 24. This Court further observed that to ensure that the State is free from selling/transporting/smuggling ganja, brown sugar, heroin and other narcotic substances by persons, apart from the existing special team, it would be appropriate to direct the Government of Manipur to constitute a Special Committee headed by a Senior IPS Officers for monitoring the drug cases at the State Level with formation of Sub-Committee at District Level in the State headed by the Superintendent of Police to weed out drug peddling. This Court also directed the State Government to constitute a State Level Committee within a period of two weeks from the date of receipt of a copy of the order and thereafter within a further period of two weeks, the District Level Committee shall be constituted. 25. At this juncture, this Court reiterated that the said direction of this Court is to be implemented in letter and spirit. It is the say of the State Government that the State Government is also trying its level best to tackle the problem by initiating war against drugs programme. Let the State Government may do. 26. In a catena of decisions the Apex Court as well as this Court held that it is imperative for the Courts to carefully evaluate the facts of the case. The discretion must be exercised on the basis of the available material and facts of the particular case. In cases where the Court is of the considered view that the accused has joined investigation and has fully co-operated the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. As stated supra, in the present case, charge-sheet has already been filed against the accused and accused no.2 is in custody from 4.6.2022. Nothing has been produced by the respondent to show that if accused no.2 is released, he will tamper/hamper the prosecution witnesses. As stated supra, in the present case, charge-sheet has already been filed against the accused and accused no.2 is in custody from 4.6.2022. Nothing has been produced by the respondent to show that if accused no.2 is released, he will tamper/hamper the prosecution witnesses. In the absence of any such proof, accused no.2 is entitled to bail. 27. While examining the parameters i.e., (i) the nature and gravity of the accusation and the exact role of accused no.2; and (ii) the antecedents of accused no.2, including the fact as to whether he was previously undergone imprisonment on conviction to be taken into consideration for grant of bail, this Courts finds that there is no clinching proof to connect accused no.2 in the alleged crime and further nothing on record to show that accused no.2 was previously convicted. 28. In the instant case, as stated supra, since chargesheet has been filed before the jurisdictional Court, it would be appropriate to direct the trial Court to expedite the trial of the case, for which accused no.2 is directed to co-operate the trial Court. 29. In view of the foregoing discussions as well as law laid down by the Hon'ble Supreme Court, the petitioner has carved out a case for grant of bail to accused no.2. 30. Accordingly, Bail Application No.19 of 2022 is allowed and accused no.2, namely, Ch. Konai Maring, son of Modun Maring of Kambang Khunou Village, Chandel District is ordered to be enlarged on bail in connection with the FIR No.61(6)2022 registered under Section 21(c)/29 of ND & PS Act on the file of City Police Station, Imphal West District, subject to accused no.2 furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh) with two local sureties each in the like sum to the satisfaction of the learned Special Judge, Special Court (ND&PS), Manipur, Lamphelpat, with the following conditions: (i) Accused no.2 shall not leave the place of his residence without permission of the Court and shall ordinarily reside at a place of his residence and the complete address of such place shall be furnished to the Special Judge, Special Court (ND&PS), Manipur, Lamphelpat, at the time of release. (ii) Accused no.2 shall appear before the respondent police daily at 10.00 a.m. for a period of fifteen days and thereafter shall appear before the learned Special Judge, Special Court (ND&PS), Manipur, Lamphelpat weekly once i.e. every Monday at 10.30 a.m until further orders. (iii) If accused no.2 has passport, he shall also surrender the same to the Special Judge, Special Court (ND&PS), Manipur, Lamphelpat. (iv) Accused no.2 shall also report before the Border Affairs Police Station on the first Monday of every month at 10.00 A.M. (v) Accused no.2 shall not indulge in any criminal activities during the period of suspension of sentence. (vi) The Border Affairs Police is directed to monitor accused no.2 and if they find accused no.2 involved in any criminal activities, the Border Affairs Police is at liberty to bring it to the notice of this Court through the Public Prosecutor. (vii) Accuse no.2 shall not contact nor visit nor threaten nor offer any inducement to any of the prosecution witnesses. (viii) Accused no.2 shall not tamper with evidence, nor otherwise indulge in any act or omission that would prejudice the proceedings in the matter. (ix) Accused no.2 is directed to co-operate the trial court for early disposal of the case. (x) Accused no.2 shall not leave the jurisdiction of the Court. (xi) It is clarified that if accused no.2 misuses the liberty or violate any of the conditions imposed upon him, the prosecution shall be free to move this Court for cancellation of the bail. (xii) The trial Court is directed to expedite the trial and conclude the same within a period of six months from the date of receipt of a copy of this order. (xiii) Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of the present bail petition.