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2022 (4) TMI 1552 - HC - Indian LawsSeeking grant of regular bail - smuggling of Ganja - contraband item - whether there are reasonable grounds to believe that accused is not guilty of such an offence and whether he is likely to commit any offence while on bail? - HELD THAT - The knowledge of the possession of contraband has to be gleaned from the facts and circumstances of a case. This Court is cautious of the fact that physical possession means physical possession with animus, exercise of dominion and control as a result of concealment or personal knowledge as to existence of the contraband and the intention based on this knowledge - It is pertinent to note that the possession in the present case is from a private vehicle with few persons known to each other. In the facts and circumstances, it is difficult to assume at this stage that the petitioner who had been driving from Orissa to Delhi with known individuals was unaware of the concealment of contraband. It also does not strike to reason that the petitioner would have been driving the truck without any remuneration or benefit as it is claimed that no monetary benefit was gained by the petitioner. The procedure followed in the present case appears to be distinguishable as referred in the typed copy of the complaint annexed with the application. In the present case, total 58 big packets were divided in 11 lots and 48 small packets were divided in 02 lots. Two samples of 25 gms. each were drawn from each lot (after taking small substance from each packet). Thus, total 26 samples were drawn - at this stage, it may be premature to hold that the procedure adopted for sampling vitiates the entire proceedings since the sampling was done after each of the packets tested positive for Ganja. The prejudice, if any, on account of alleged improper sampling as contended by counsel for the petitioner, can only be appropriately considered after the examination of the witnesses during the course of trial. In the facts and circumstances and considering the connecting evidence on record, wherein the contraband has been recovered from private vehicle driven by the petitioner, it is opined that no grounds for grant of bail are made out in the light of twin conditions laid down in Section 37 of NDPS Act. The application is accordingly dismissed.
Issues Involved:
1. Application for regular bail under Section 439 of Cr.P.C. 2. Admissibility and validity of evidence and statements under NDPS Act. 3. Procedure for sampling and its compliance with legal standards. 4. Application of Section 37 of NDPS Act and the conditions for granting bail. Detailed Analysis: 1. Application for Regular Bail under Section 439 of Cr.P.C.: The petitioner sought regular bail in a case under Sections 8/20/29 of the NDPS Act. The prosecution's case involved the interception of a truck carrying 386 Kgs of Ganja, with the petitioner identified as the truck driver. The petitioner was arrested along with other co-accused after the recovery of contraband from a concealed cavity in the truck. 2. Admissibility and Validity of Evidence and Statements under NDPS Act: The petitioner’s counsel argued that the statements recorded under Section 67 of the NDPS Act were inadmissible, citing the Supreme Court’s decision in Tofan Singh vs. State of Tamil Nadu. The counsel also contended that the petitioner was merely a driver unaware of the contraband and had no call records or monetary benefits linking him to the crime. The prosecution, however, maintained that the petitioner was in conscious possession of the contraband, as he drove the truck from Orissa to Delhi. 3. Procedure for Sampling and Its Compliance with Legal Standards: The petitioner’s counsel challenged the procedure for obtaining samples, arguing that mixing the contents of all recovered packets before drawing samples vitiated the case property’s sanctity. Reliance was placed on previous judgments where similar procedures were deemed improper. However, the court noted that in this case, each packet was tested individually before being divided into lots for sampling. The court found that the procedure followed did not prima facie vitiate the proceedings and any prejudice could be addressed during the trial. 4. Application of Section 37 of NDPS Act and the Conditions for Granting Bail: Under Section 37(1)(b)(ii) of the NDPS Act, bail for offences involving commercial quantities requires: - The prosecutor must be given an opportunity to oppose the bail application. - There must be reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. The court referred to the Supreme Court’s observations in Madan Lal and Anr. v. State of Himachal Pradesh regarding conscious possession. It concluded that the petitioner, driving the truck from Orissa to Delhi with known individuals, was likely aware of the contraband. The court also highlighted the improbability of the petitioner driving without any remuneration or benefit. Considering the evidence and the conditions under Section 37, the court opined that no grounds for granting bail were made out. The application was accordingly dismissed.
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