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A.F.R.

Reserved on 25.06.2021

Delivered on 06.07.2021

Court No. - 64

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42092 of 2020

Applicant :- Dheeraj Kumar Shukla

Opposite Party :- State of U.P.

Counsel for Applicant :- Rajiv Lochan Shukla, Arya Suman Pandey

Counsel for Opposite Party :- G.A.

Hon'ble Sanjay Kumar Singh,J.

1. Keeping in view the Pandemic (COVID-19), the case is taken up

through video conferencing.

2. Heard Mr. Rajiv Lochan Shukla, learned counsel for the

applicant and Mr. Virendra Kumar Maurya, learned Additional

Government Advocate assisted by Mr. Prashant Kumar Singh, learned

Brief holder appearing on behalf of State of U.P. through video

conferencing and perused the material placed on record.

3. By means of this application, the applicant, who is involved in

Case Crime No. 0532 of 2020, under sections 8/20 of Narcotic Drugs &

Psychotropic Substances Act, police station Jhunsi, district Prayagraj, is

seeking enlargement on bail during the pendency of trial.

Facts

4. In nutshell, the facts which led to the prosecution of accused are

that on 23.6.2020 informant (Sub Inspector Ranendra Kumar Singh, UP

S.T.F. field Unit Prayagraj) lodged First Information Report at police

station Jhusi, District Prayagraj against four accused persons, namely,

Dhiraj Kumar Shukla (applicant), Praveen Maurya alias Punit Maurya,

Dhiraj Maurya and Rishabh Kumar alleging inter alia that on 23.6.2020,

he along with other police personnel were busy in the city area for

collecting information regarding illicit trafficking of narcotics substance

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and criminals declared as wanted, where he received information through

informer that some persons are about to come at Jhunsi near Trivenipuram

gate on vehicle with illegal and suspicious goods, if quick action be taken,

they can be caught. On such information, he after giving information to

higher officers proceeded for the place of occurrence along with informer

and other police personnel and reached at Trivenipuram gate, Jhunsi

through Nyay Nager Crossing. Effort was made to persuade the local

persons to become witness, but due to fear no body became ready.

Thereafter, they walked towards railway crossing and reached on the

bridge and started waiting there. After some time, they saw that two

vehicles white coloured Swift Dzire car and grey coloured Honda City

car were coming. On the indication of informer, said vehicles were caught

by the police team using necessary force and persons sitting in the

vehicles were pulled out. On questioning, they disclosed about

transportation of illegal Ganja in the said vehicles. On interrogation, the

apprehended accused persons, who were sitting in Honda City car,

disclosed their names as Praveen Maurya alias Punit Maurya (owner),

Rishabh Kumar (Driver) and Dhiraj Maurya, whereas person, who was

driving Swift Dzire car disclosed his name as Dheeraj Kumar Shukla

(applicant). The accused were enlightened about their legal rights to be

searched before a Gazetted Officer, to which they declined and gave their

consent saying that informant may take their search. Accordingly, they

were searched, but no contraband was recovered from their personal

search, except mobile phones and some cash amount etc. as mentioned in

the recovery memo. On taking search of aforesaid vehicles, total 92.410

Kgs. of Ganja were recovered from the dicky of Honda City car bearing

No. MH 04 AF 0076 and 65.160 Kgs. of Ganja were recovered from the

dicky of Swift Dzire car bearing No. UP 70 EW 0246. As such, total

157.570 Kgs of illegal Ganja have been recovered in this case. Accused

persons could not show the authorization for keeping and transporting the

same. Separate samples of about 100-100 grams each of Ganja were taken

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out from each packets, thereafter samples and remaining Ganja as well as

other recovered materials were separately sealed in white cloths.

Specimens of seal were prepared. Accused persons disclosed that they

have been engaged in the trafficking of Ganja since last several years.

They also disclosed that they purchased the Ganja from one Hari, resident

of Kodpad, Odisha and sell the same on higher price in Prayagraj. Both

the aforesaid vehicles were also seized. Contents of recovery memo were

explained to the accused persons and after taking their signature, copy of

recovery memo was handed over to them. On the basis of aforesaid

recovery, a case was registered against the accused persons at Case Crime

No. 0532 of 2020, under section 8/20 of N.D.P.S. Act, police station

Jhunsi, district Prayagraj.

Submissions on behalf of the applicant

5. Learned counsel for the applicant argued that as per the

prosecution case, total 157.570 Kgs illegal Ganja are said to have been

recovered in this case, out of which 92.410 Kgs Ganja were recovered

from the dicky of Honda City car, which was driven by the co-accused

Rishabh Kumar and 65.160 Kgs Ganja were recovered from the dicky of

Swift Dzire car, which was driven by Dheeraj Kumar Shukla (applicant).

The co-accused Rishabh Kumar, who was the driver of the Honda City

car, has already been granted bail by co-ordinate Bench of this Court vide

order dated 31.05.2021 in Criminal Misc. Bail Application No.17226 of

2021, therefore the applicant is also entitled to be released on bail on the

ground of parity. It is next submitted by the learned counsel for the

applicant that Investigating Officer has not followed the procedure of

N.D.P.S. Act. The applicant is Diploma holder in Electrical Engineering

and has been falsely implicated. Charge sheet has been filed in this case

on 16.8.2021. Applicant has no criminal antecedent and is in jail since

24.6.2020. Lastly, it is prayed to release the applicant on bail on the

ground of parity of bail order dated 31.05.2021 of co-accused Rishabh

Kumar.

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Submissions on behalf of the State of U.P.

6. Per contra, learned Additional Government Advocate appearing

on behalf of Sate of UP/opposite party, vehemently opposed the aforesaid

submissions of learned counsel for applicant by contending that

recovered 157.570 Kgs Ganja in this case, is much more than commercial

quantity, out of which 65.160 Kgs Ganja were recovered from the dicky

of Swift Dzire car occupied by the applicant. The accused applicant was

driver of Swift Dzire car and was having conscious possession of

aforesaid recovery as well as constructive possession over recovered

65.160 Kgs Ganja from his car. There is no enmity between the applicant

and police team, therefore, allegation of false implication of the applicant

is without any basis and against the evidence on record. The huge quantity

of 157.570 Kgs Ganja cannot be planted. The mandatory requirements as

provided under the Narcotics Drugs & Psychotropic Substances Act have

been followed by the officer concerned. Samples were sent to laboratory

for chemical analysis. Applicant is also involved in a case being case

crime no.598 of 2020, under Section 2/3 U.P. Gangsters and Anti Social

Activities (Prevention) Act. Sonu Shukla (brother of applicant) is owner

of the vehicle Swift Dzire car in question, who has also made an accused

in this case and has been arrested on 03.04.2021. Swift Dzire car bearing

no. U.P.70 EW 0246 has been seized by the police, thereafter a letter has

been sent to the District Magistrate for initiating confiscation proceedings.

So far as bail order dated 31.05.2021 of co-accused Rishabh Shukla is

concerned, it is submitted by learned A.G.A. that argument advanced on

behalf of State of UP has neither been considered nor noted in the order

dated 31.05.2021 and the same has been passed without considering the

provisions of section 37 of Narcotics Drugs & Psychotropic Substances

Act accepting wrong submission on behalf of co-accused that recovered

Ganja is less than commercial quantity and the same was not sent for

chemical examination, therefore no case of parity is made out and bail

application of the applicant is liable to be rejected.

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Now rival submissions fall for analysis.

Issue

7. After having heard the learned counsel for the parties, I find that

one of the issue that arises for consideration before this Court is “ as to

whether applicant is entitled to be released on bail only on the ground of

parity of bail order dated 31.05.2021 of co-accused Rishabh Kumar”.

8. Before delving into the matter it would be relevant to quote the

relevant extract of bail order dated 31.05.2021 of co-accused Rishabh

Kumar passed in Criminal Misc. Bail Application No.17226 of 2021,

which is being reproduced herein-below:

“This matter is listed for hearing through video

conferencing. Link has been sent to the respective

learned counsels. Learned Counsel for the applicant

and learned A.G.A. for the State are connected through

the link.

Heard learned counsel for the applicant as well as

learned A.G.A for the State and perused the record.

By means of this application, the applicant who is

involved in Case Crime No.325 of 2020, under Section

8/20 N.D.P.S. Act, Police Station Jhunsi, District

Prayagrj, is seeking enlargement on bail during the

trial.

Submission made by learned counsel for the applicant is

that the applicant has been falsely implicated in the

present case. Learned counsel for the applicant submits

that nothing incriminating materials have been

recovered from the possession of the applicant at the

time of recovery. He further submits that the police has

falsely shown the recovery of Ganja from the possession

of the applicant and the alleged recovery of Ganja was

also not sent for chemical examination. The applicant

has no criminal history. He further submits that the

alleged recovery of Ganja is less than the commercial

quantity. The applicant is nothing to do with the

aforesaid offence. The applicant is languishing in jail

since 23.06.2020.

Learned counsel for the informant as well as learned

A.G.A opposed the prayer for bail but could not dispute

the aforesaid facts and the legal submissions as argued

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by the learned counsel for the applicant.

Keeping in view the nature of the offence, evidence,

complicity of the accused and submissions of learned

counsel for the parties, I am of the view that the

applicant has made out a case for bail.

Let the applicant Rishabh Kumar, who is involved in

Case Case Crime No.325 of 2020, under Section 8/20

N.D.P.S. Act, Police Station - Jhunsi, District Prayagrj,

be released on bail on his furnishing a personal bond

and two sureties each in the like amount to the

satisfaction of the court concerned subject to following

conditions. Further, before issuing the release order, the

sureties be verified....................”

Section 37 of N.D.P.S. Act

9. There is no dispute that commercial quantity of Ganja is 20 Kgs.

Recovered and seized total 157.570 Kgs. of Ganja (recovery of 92.410

Kgs. of Ganja from Honda City car and 65.160 Kgs. of Ganja from Swift

Dzire car) in this case are much more than the commercial quantity,

therefore, provisions of section 37 of Narcotics Drugs & Psychotropic

Substances Act are attracted in this case, which is in addition to section

439 of Cr.P.C. and mandatory in nature.

10. In view of Section 37 of the N.D.P.S. Act, before granting bail

for the offence under N.D.P.S. Act twin conditions as provided under

Section 37(1)(b) (i) and (ii) have to be satisfied. Section 37 of the

N.D.P.S. Act is quoted herein below:

"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

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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."

11. On several occasions, the Apex Court has considered the issue

relating to provisions of Section 37 of the N.D.P.S. Act and after

wholesome treatment laid down guidelines in this regards, which would

be useful to quote herein-below:

i. The expression 'reasonable grounds' has not been defined in the

N.D.P.S. Act, but the Apex Court in the case of Union of India Vs.

Rattan Mallik @ Habul, 2009 (1) SCC (Crl) 831, has settled the

expression "reasonable grounds". Relevant paragraphs no. 12, 13

and 14 are quoted herein below:

"12.It is plain from a bare reading of the non-obstante

clause in the Section and sub-section (2) thereof that the

power to grant bail to a person accused of having

committed offence under the NDPS Act is not only

subject to the limitations imposed under Section 439 of

the Code of Criminal Procedure, 1973, it is also subject

to the restrictions placed by sub-clause (b) of sub-

section (1) of Section 37 of the NDPS Act. Apart from

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giving an opportunity to the Public Prosecutor to

oppose the application for such release, the other twin

conditions viz; (i) the satisfaction of the Court that there

are reasonable grounds for believing that the accused is

not guilty of the alleged offence; and (ii) that he is not

likely to commit any offence while on bail, have to be

satisfied. It is manifest that the conditions are

cumulative and not alternative. The satisfaction

contemplated regarding the accused being not guilty,

has to be based on "reasonable grounds".

13.The expression `reasonable grounds' has not been

defined in the said Act but means something more than

prima facie grounds. It connotes substantial probable

causes for believing that the accused is not guilty of the

offence he is charged with. The reasonable belief

contemplated in turn points to existence of such facts

and circumstances as are sufficient in themselves to

justify satisfaction that the accused is not guilty of the

alleged offence. [Vide Union of India Vs. Shiv Shanker

Kesari, 2007(7) SCC 798] Thus, recording of

satisfaction on both the aspects, noted above, is sine

qua non for granting of bail under the NDPS Act.

14. We may, however, hasten to add that while

considering an application for bail with reference to

Section 37 of the NDPS Act, the Court is not called

upon to record a finding of 'not guilty'. At this stage, it is

neither necessary nor desirable to weigh the evidence

meticulously to arrive at a positive finding as to

whether or not the accused has committed offence under

the NDPS Act. What is to be seen is whether there is

reasonable ground for believing that the accused is not

guilty of the offence(s) he is charged with and further

that he is not likely to commit an offence under the said

Act while on bail. The satisfaction of the Court about

the existence of the said twin conditions is for a limited

purpose and is confined to the question of releasing the

accused on bail."

ii. In case of Union of India Vs. Ram Samujh 1999 (9) SCC 429,

Apex Court has made following observations in paragraph 7 of the

said judgment, which are reproduced herein below:-

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"7. It is to be borne in mind that the aforesaid legislative

mandate is required to be adhered and followed. It should be

borne in mind that in murder case, accused commits murder of

one or two persons, while those persons who are dealing in

narcotic drugs are instruments in causing death or in inflicting

death blow to number of innocent young victims, who are

vulnerable: it causes deleterious effects and deadly impact on

the society; they are a hazard to the society; even if they are

released temporarily, in all probability, they would continue

their nefarious activities of trafficking and/or dealing in

intoxicants clandestinely. Reason may be large stake and

illegal profit involved. This Court, dealing with the contention

with regard to punishment under NDPS Act, has succinctly

observed about the adverse effect of such activities in Durand

Didien v. Chief Secretary. Union Territory of Goa. [1990] 1

SCC 95 as under:

"24.With deep concern, we may point out that the

organised activities of the underworld and the

clandestine smuggling of narcotic drugs and

psychotropic substances into this country and illegal

trafficking in such drugs and substances have led to

drug addiction among a sizeable section of the

public, particularly the adolescents and students of

both sexes and the menace has assumed serious and

alarming proportion in the recent years. Therefore,

in order to effectively control and eradicate this

proliferating and booming devastating menace,

causing deleterious effects and deadly impact on the

society as a whole, the Parliament in the wisdom

has made effective provisions by introducing this Act

81 of 1985 specifying mandatory minimum

imprisonment and fine."

iii. In Union of India Vs. Shiv Shankar Kesari, (2007) 7 SCC

798, Apex Court elaborated and explained the conditions for

granting of bail as provided under Section 37 of the Act. Relevant

paragraph Nos. 6 and 7 are extracted here in below :

"6. As the provision itself provides no person shall be

granted bail unless the two conditions are satisfied.

They are; the satisfaction of the Court that there are

reasonable grounds for believing that the accused is not

guilty and that he is not likely to commit any offence

while on bail. Both the conditions have to be satisfied. If

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either of these two conditions is not satisfied, the bar

operates and the accused cannot be released on bail.

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 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."

iv. In recent decision of Apex Court in State of Kerala Etc. Vs.

Rajesh Etc. AIR 2020 Supreme Court 721, Apex Court again

considered the scope of Section 37 of N.D.P.S. Act and relying

upon earlier decision in Ram Samujh (Supra) held as under:

"20. The scheme of Section 37 reveals that the exercise

of power to grant bail is not only subject to the

limitations contained under Section 439 of the CrPC,

but is also subject to the limitation placed by Section 37

which commences with non-obstante clause. The

operative part of the said section is in the negative form

prescribing the enlargement of bail to any person

accused of commission of an offence under the Act,

unless twin conditions are satisfied. The first condition

is that the prosecution must be given an opportunity to

oppose the application; and the second, is that the

Court must be satisfied that there are reasonable

grounds for believing that he is not guilty of such

offence. If either of these two conditions is not satisfied,

the ban for granting bail operates.

21.The expression "reasonable grounds" means

something more than prima facie grounds. It

contemplates substantial probable causes for believing

that the accused is not guilty of the alleged offence. The

reasonable belief contemplated in the provision requires

existence of such facts and circumstances as are

sufficient in themselves to justify satisfaction that the

accused is not guilty of the alleged offence. In the case

on hand, the High Court seems to have completely

overlooked the underlying object of Section 37 that in

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addition to the limitations provided under the CrPC, or

any other law for the time being in force, regulating the

grant of bail, its liberal approach in the matter of bail

under the NDPS Act is indeed uncalled for."

v. The Apex Court in Union of India vs Prateek Shukla, AIR,

2021 SC 1509 has held that merely recording the submissions of

the parties does not amount to an indication of a judicial or, for that

matter, a judicious application of mind. The provisions of Section

37 of the N.D.P.S. Act provide the legal norms which have to be

applied in determining whether a case for grant of bail has been

made out. The relevant paragraph nos. 11,12 and 13 of the said

judgment are reproduced herein under :

“11. Ex facie, there has been no application of mind by

the High Court to the rival submissions and,

particularly, to the seriousness of the allegations

involving an offence punishable under the provisions of

the NDPS Act. Merely recording the submissions of the

parties does not amount to an indication of a judicial or,

for that matter, a judicious application of mind by the

Single Judge of the High Court to the basic question as

to whether bail should be granted. The provisions of

Section 37 of the NDPS Act provide the legal norms

which have to be applied in determining whether a case

for grant of bail has been made out. There has been a

serious infraction by the High Court of its duty to apply

the law. The order granting bail is innocent of an

awareness of the legal principles involved in

determining whether bail should be granted to a person

accused of an offence under the NDPS Act. The

contention of the respondent that he had resigned from

the Company, Altruist Chemicals Private Limited, must

be assessed with reference to the allegations in the

criminal complaint which has been filed in the Court of

the District and Sessions Judge. Gautam Budh Nagar

(Annexure P-6).

The relevant part of the complaint reads as follows:

“18. That during investigation of the case,

letter dated 27.11.2018 was sent to the

Registrar of Companies for providing details

of the Directors etc of the company in

question i.e. U/s Altruist Chemicals Pvt Ltd

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and vide its report dated 03.12.2018 Registrar

of Companies provided the said information

and from the perusal of said

information/documents, it reveals that

accused Prateek Shukla and Bismillah Khan

are the Directors.

Accused Himanshu Rana was also Director

but he has resigned from the directorship.

From the perusal of the documents, it also

reveals that they had registered the company,

i.e., Altruist Chemical Pvt. Ltd. At 001, Block

Ab-Sector-45, Noida, which is a residential

area and accused persons also obtained

Unique Registration No. from the NCB on the

above said premises.”

12.We may also note at this stage the contention of

the respondent in the application for bail which was

filed before the High Court (Annexure P-8) that he had

transferred 99% of his shareholding in the Company to

Bismilla Khan Ahmadzai. Bismilla Khan Ahmadzai, as

the prosecution alleges at this stage, is an Afghan

national. The application for bail which had been filed

before the High Court as well as the counter affidavit

which has been filed in the present proceedings

suppress more than what they disclose. Be that as it

may, we are of the view that the High Court was clearly

not justified in granting bail and the reasons provided

by the High Court, as we have already indicated above,

do not reflect application of mind to the seriousness of

the offence which is involved. Indicating that the

respondent as an educated person with a Bachelor of

Technology “may not commit any offence” is an

extraneous circumstances which ought not to have

weighed with the High Court in the grant of bail for an

offence under the NDPS Act.

13. For the above reasons, we are of the view that the

High Court has mis-applied the law to the facts in

arriving at a decision for the grant of bail to the

respondent. We accordingly allow the appeal and set

aside the impugned judgment and order of the High

Court dated 7 May 2019. As a consequence, the bail

which has been granted by the High Court to the

respondent shall stand cancelled. The respondent shall

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surrender forthwith as a result of the cancellation of

bail by the present order of this Court.”

vi. Narcotics Control Bureau vs Laxman Prasad Soni, Etc,

(Criminal Appeal No. 438-440 of 2021 decided by the Apex Court

on 19.04.2021).

In the said case, there was recovery of 229 Kgs. of Ganja from the

possession of accused persons. Out of which 25 Kgs. of Ganja was

recovered from one vehicle occupied by the accused. There was

another vehicle namely truck in which rest of the contraband

material was found. The accused persons, who were arrested along

with 25 Kgs. Ganja have been granted bail by the co-ordinate

Bench of this Court vide order dated 23.09.2019 in Criminal Misc.

Bail Application Nos. 38036 of 2019, 38066 of 2019 and 38048 of

2019 without considering provisions of Section 37 of the N.D.P.S.

Act.

The aforesaid order dated 23.09.2019 has been set-aside by the

Apex Court on account of the reason that the applications for bail

were allowed by the High Court without considering the import and

effect of Section 37 of the N.D.P.S. Act.

Possession

12. Possession is the core ingredient to be established before the

accused are made criminally liable. The expression 'possession' is a

polymorphous term, which assumes different colour in different context

as settled by the Apex Court. There are three kind of possession, namely,

Physical Possession, Constructive Possession and Conscious Possession.

The words 'conscious possession' connotes a particular state of mind

which is deliberate and intended.

i.Supreme Court while dealing with the question of possession and

application of Section 50 in the case of Megh Singh Vs. State of Punjab,

2003 CRI. L.J. 4329, held that word 'possession' includes conscious

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possession. Further Section 50 applies in case of personal search of a

person and it does not extend to search of a vehicle or container or a bag

or premises. Relevant paragraph nos. 9 to 13 and 16 are extracted here as

under:

"9. The expression 'possession' is a polymorphous term which

assumes different colours in different contexts. It may carry

different meanings in contextually different backgrounds. It is

impossible, as was observed in Superintendent &

Remembrancer of Legal Affairs, West Bengal v. Anil Kumar

Bhunja and Ors. (AIR 1980 SC 52), to work out a completely

logical and precise definition of "possession" uniformally

applicable to all situations in the context of all statutes.

10.The word 'conscious' means awareness about a

particular fact. It is a state of mind which is deliberate or

intended.

11.As noted in Gunwantlal v. The State of M.P. (AIR 1972

SC 1756) possession in a given case need not be physical

possession but can be constructive, having power and control

over the article in case in question, while the person whom

physical possession is given holds it subject to that power or

control.

12.The word 'possession' means the legal right to

possession (See Health v. Drown (1972) (2) All ER 561 (HL).

In an interesting case it was observed that where a person

keeps his fire arm in his mother's flat which is safer than his

own home, he must be considered to be in possession of the

same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844

(QBD).

13. Once possession is established the person who claims that

it was not a conscious possession has to establish it, because

how he came to be in possession is within his special

knowledge. Section 35 of the Act gives a statutory recognition

of this position because of presumption available in law.

Similar is the position in terms of Section 54 where also

presumption is available to be drawn from possession of illicit

articles. This position was highlighted in Madan Lal and Anr.

v. State of Himachal Pradesh (2003 (6) SCALE 483).

X X X X X X X

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16. A bare reading of Section 50 shows that it only applies in

case of personal search of a person. It does not extend to

search of a vehicle or a container or a bag, or premises. (See

Kalema Tumba v. State of Maharashtra and Anr. (JT1999 (8)

SC 293), The State of Punjab v. Baldev Singh (JT1999 (4) SC

595), Gurbax Singh v. State of Haryana(2001(3) SCC 28). The

language of Section 50 is implicitly clear that the search has

to be in relation to a person as contrasted to search of

premises, vehicles or articles. This position was settled

beyond doubt by the Constitution Bench in Baldev Singh's

case (supra). Above being the position, the contention

regarding non-compliance of Section 50 of the Act is also

without any substance."

ii. The Apex Court in the case of Dehal Singh v. State of Himanchal

Pradesh, 2011 (72) ACC 661, has again consider the issue of “conscious

possession”.

In the said case, two accused persons were travelling in a car and

they knew to each other. From the windows/door of the said car, recovery

of 27 Kgs. 800 gms. of charas was made, which were found concealed

between the shields and doors of the car. The Apex Court in the said case

taking into consideration the provisions of Sections 35 and 54 of the

N.D.P.S. Act has held that accused was not only in possession, but

conscious possession of recovered contraband also.

Presumption under Section 54 of the N.D.P.S. Act

13. In this case, total 157.570 Kgs. Ganja has been recovered from

two vehicles, out of which 92.410 Kgs. Ganja has been recovered from

Honda City car, in which three persons, namely, Rishabh Kumar (driver),

Dhiraj Maurya and Praveen Maurya alias Punit Maurya (owner of

vehicle) were travelling. Similarly, 65.160 Kgs. Ganja has been recovered

from Swift Dzire car, which was driven by the applicant, which is in the

name of his brother Sonu Shukla, who also made accused during

investigation. Both the aforesaid vehicles were apprehended together by

police personnel. The applicant was the only person, who was in actual

control of Swift Dzire car containing 65.160 Kgs. of Ganja. As such,

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conscious and constructive possession of the accused applicant over the

recovered Ganja is apparent on record.

There is specific statutory presumption in relation to contraband

that comes within the ambit of N.D.P.S. Act. In view of Section 54 of the

N.D.P.S. Act presumption shall be drawn against the accused unless and

until the contrary is proved. The expression “unless and until the contrary

is proved”, clearly imposes the burden of proving that possession of

prohibited substance is legal on the accused himself.

Enmity and False Implication

14. No material has been brought on record by the applicant to

show that there was any prior ill-will or enmity of the applicant with the

police personnel concerned. Illicit trafficking is an organized crime and

are done adopting different modus operandi by a group of persons with

their different role. So far as plea of false implication is concerned, in my

view, it is a stereo typed defence raised in every case, where accused are

found in possession of contraband. Experience shows that such statements

are made in almost every case, therefore, such kind of plea of false

implication without any basis is not liable to be accepted at this stage.

Independent Witness

15. Nowadays, totally unconcerned people do not dare to become

witness against criminals, as they have a lot of financial and political

patronage available to them as well as muscle power. Public witnesses

against the criminals and drug traffickers are always under the threat,

therefore police personnel cannot be seen within eye of suspicion

particularly when there is a huge recovery of contraband and there is no

prior ill-will of police personnel with the accused and they are discharging

their official duty. Huge quantity of recovered 157.570 Kgs. Ganja cannot

be planted.

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Detention Period

16. So far as argument of learned counsel for the applicant that

applicant is in jail since 24.06.2020 is concerned, it is relevant to mention

that in the case of Union of India v. Rattan Mallik (supra), the accused

was in jail for last three years, but the Apex Court has made an

observation that the stated circumstances may be relevant for grant of bail

in matters arising out of conviction under Penal Code etc., but are not

sufficient to satisfy the mandatory requirements as stipulated in clause (b)

of sub-section (1) of Section 37 of the N.D.P.S. Act.

Parity

17. From perusal of bail order dated 31.05.2021 of co-accused

Rishabh Kumar passed in Criminal Misc. Bail Application No. 17226 of

2021, I find that co-accused Rishabh Kumar has been granted bail without

considering the provisions of Section 37 of N.D.P.S. Act. It is well settled

that recording of finding in terms of Section 37 of N.D.P.S. Act is a sine

qua non for granting bail under N.D.P.S. Act. Though, there was a huge

recovery of 92.410 Kgs Ganja from the Honda City car, which was driven

by co-accused and the same is much more than commercial quantity, but

on behalf of co-accused it has been wrongly argued before the co-ordinate

bench that alleged recovery of Ganja is less than commercial quantity.

Apart from above, no reason has been recorded while granting bail to co-

accused Rishabh Kumar. In such circumstances, this Court is of the

considered view that if co-accused obtained bail by misrepresentation of

facts, other accused on same footing are not entitled to bail on the ground

of parity, ergo order dated 31.05.2020 is not helpful to the applicant.

In quite recent, the Apex Court in the case of Sonu vs Sonu Yadav

and another, AIR 2021 SC 201; deprecated the practice of passing such

kind of orders. The relevant paragraph nos. 11 and 12 of the said

judgments are reproduced herein under :

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“11. In the earlier part of this judgment, we have

extracted the lone sentence in the order of the High

Court which is intended to display some semblance of

reasoning for justifying the grant of bail. The sentence

which we have extracted earlier contains an omnibus

amalgam of (i) “the entire facts and circumstances of

the case”; (ii) “submissions of learned Counsel for the

parties”; (iii) “the nature Crl.A.377/2021 of offence”;

(iv) “evidence”; and (v) “complicity of accused”. This

is followed by an observation that the “applicant has

made out a case for bail”, “without expressing any

opinion on the merits of the case”. This does not

constitute the kind of reasoning which is expected of a

judicial order. The High Court cannot be oblivious, in a

case such as the present, of the seriousness of the

alleged offence, where a woman has met an unnatural

end within a year of marriage. The seriousness of the

alleged offence has to be evaluated in the backdrop of

the allegation that she was being harassed for dowry;

and that a telephone call was received from the accused

in close-proximity to the time of death, making a

demand. There are specific allegations of harassment

against the accused on the ground of dowry. An order

without reasons is fundamentally contrary to the norms

which guide the judicial process. The administration of

criminal justice by the High Court cannot be reduced to

a mantra containing a recitation of general

observations. That there has been a judicious

application of mind by the judge who is deciding an

application under Section 439 of the CrPC must emerge

from the quality of the reasoning which is embodied in

the order granting bail. While the reasons may be brief,

it is the quality of the reasons which matters the most.

That is because the reasons in a judicial order unravel

the thought process of a trained judicial mind. We are

constrained to make these observations because the

reasons indicated in the judgment of the High Court in

this case are becoming increasingly familiar in matters

which come to this Court. It is time that such a practice

is discontinued and that the reasons in support of orders

granting bail comport with a judicial process which

brings credibility to the administration of criminal

justice. Crl.A.377/2021.

12.For the above reasons, we are of the view that the

order of the High Court granting bail without due

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application of mind to the relevant facts and

circumstances as well to the provisions of the law

requires the interference of this Court.”

18. As such, in the light of dictum of aforesaid judgments of the

Apex Court as well as the reasons mentioned in preceding paragraph

no.17, this Court is of the view that the orders which have been passed

ignoring the settled law laid down by the Apex Court regarding Section

37 of the N.D.P.S. Act have no persuasive value and the same is not

binding upon this Court. Hence, the benefit of parity of order dated

31.05.2021 of co-accused Rishabh Kumar cannot be extended to present

applicant. Accordingly, the submission of learned counsel for the

applicant for granting bail to the applicant on the ground of parity of order

dated 31.05.2021 is hereby rejected. The issue of parity as mentioned in

paragraph no. 7 is decided against the applicant.

Discretion

19. At this juncture it would be relevant to note that discretion is

required to be exercised judiciously and judicially. The devastating effects

of narcotic drugs and psychotropic substance on any person who comes to

its touch are well known. Normally, such person ceases to be a normal

human being. It is also well settled that a proper administration of the

criminal justice delivery system, requires balancing the rights of the

accused and the prosecution. Undoubtedly rights of the accused are

important, but equally important is the societal interest for bringing the

offender to book and for the system to send right message to all in the

society. Undue sympathy for offender would be more harm to justice

system to undermine the public confidence in the efficacy of law.

Conclusion

20. In the light of analysis of the case as mentioned above and

considering the recovery of huge quantity of Ganja as mentioned above,

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coupled with the fact that applicant was apprehended at the spot and was

having conscious and constructive possession over the recovered Ganja, I

do not find any reasonable ground in terms of Section 37 of the N.D.P.S.

Act to hold that applicant is not guilty of an offence and he is not likely to

commit any offence while on bail.

It is made clear that this finding is for a limited purpose and is

confined to the question of releasing the accused applicant on bail only.

The trial court shall be absolutely free to arrive at its independent

conclusions on the basis of evidence led unaffected by anything said in

this order.

Result

21. In view of the facts and circumstances of the case and on

account of the reasons mentioned above, I do not find any good ground

for enlarging the applicant on bail at this stage. The bail application of the

applicant is accordingly rejected.

Order Date :- 06.07.2021

Sunil Kr. Gupta