2014 (8) TMI 13 - HC - Customs

Rejection of bail application - Applicant booked for possession of contraband articles - Applicant contends that he was booked because he was a son a co-accused - Absence of mens rea - Held that - Under section 437 or 439 of the Code of Criminal Procedure it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail. However, as the definition of section 37 noted above indicate, it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This is the distinction between the two provisions which makes section 37 of NDPS Act, more stringent. The twin conditions under section 37(1)(b)(ii) of the Act required to be satisfied are cumulative and not alternative. It cannot be said that the mandatory provisions with regard to the detention, arrest, search and seizure etc. in respect of the applicant have not been followed, simply because it is premature to give any verdict on the argument of the learned counsel for the applicant and it would be decided after appreciation of the evidence led by the parties in the case - Further in view of the provisions of sections 35 and 54 of the Act, it is the burden of the applicant to prove that he was not in conscious possession of the contraband, if it is proved that he was in possession thereof and that he had no such mental state with respect to the act charged as an offence. The consistent case of the prosecution is that the applicant was found travelling in the car owned by the family along with his father and they were found in possession of 50.300 kgs of Charas hidden in the secret cavity (specially made for the purpose) of the Bolero vehicle. The defence taken by the applicant in para-17 of the affidavit appears to have been taken for the first time in the bail application as it does not find place in the bail rejection order of the applicant passed by the Court below on 3.10.2013. The statement of the applicant recorded by the department under section 67 of the Act falsifies the plea taken by the applicant to explain the recovery of the contraband in their vehicle. Further in view of the provisions of sections 35 and 54 of the Act, it is the burden of the applicant to prove that he was not in conscious possession of the contraband, if it is proved that he was in possession thereof and that he had no such mental state with respect to the act charged as an offence. The consistent case of the prosecution is that the applicant was found travelling in the car owned by the family along with his father and they were found in possession of 50.300 kgs of Charas hidden in the secret cavity (specially made for the purpose) of the Bolero vehicle. The defence taken by the applicant in para-17 of the affidavit appears to have been taken for the first time in the bail application as it does not find place in the bail rejection order of the applicant passed by the Court below on 3.10.2013. The statement of the applicant recorded by the department under section 67 of the Act falsifies the plea taken by the applicant to explain the recovery of the contraband in their vehicle. Indisputably complaint against the applicant had been filed by the department on 17.8.2013 and the trial has begun. The applicant has filed the copy of the statement of PW-1 recorded in the trial Court and his learned counsel has tried to show certain pieces of evidence to demonstrate non-compliance of mandatory provisions of the Act. However, in my opinion, it would not be expedient in the interest of justice to appreciate the evidence of PW-1in these misc. proceedings of summary nature, as any finding of this Court, may be for consideration of the bail application of the applicant, is likely to prejudice any of the parties. - the twin conditions as enumerated in section 37 (1)(b)(ii) of the Act, for grant of bail to the applicant for the offences under NDPS Act are not satisfied, therefore, he cannot be released on bail - Decided against applicant.

Issues Involved:
1. False implication and lack of knowledge of contraband.
2. Absence of independent witness and defective charge-sheet.
3. Compliance with mandatory provisions of NDPS Act.
4. Delay in producing the applicant before the court.
5. Conscious possession of contraband.
6. Applicant's background and judicial custody duration.
7. Applicability of Section 37 of NDPS Act for bail.

Issue-wise Detailed Analysis:

1. False Implication and Lack of Knowledge of Contraband:
The applicant argued that the prosecution story is false and he was illegally implicated because he is the son of co-accused Rajesh Chandra Gupta. It was contended that even if the prosecution's story is true, the applicant had no knowledge of the charas being carried in the Bolero vehicle. This was supported by their statements under section 67 of the NDPS Act.

2. Absence of Independent Witness and Defective Charge-Sheet:
The applicant's counsel argued that there was no independent witness from the locality and the recovery was not made at the spot. Additionally, the charge-sheet was submitted without a chemical analysis report, making it incomplete and defective. Hence, the applicant sought bail under section 167 Cr. P. C.

3. Compliance with Mandatory Provisions of NDPS Act:
The applicant contended that mandatory provisions of sections 42, 50, 52, 55, and 57 of the NDPS Act were not followed, entitling him to bail. However, the court noted that this issue would be decided after the appreciation of evidence and cited the Apex Court's stance that such compliance should not be pre-judged at the bail stage.

4. Delay in Producing the Applicant Before the Court:
The applicant was allegedly produced before the court 48 hours after his detention, which was argued to be illegal. The court, however, found that this delay, even if true, cannot be a ground for bail after successive legal judicial remands.

5. Conscious Possession of Contraband:
The prosecution argued that the applicant was in conscious possession of the contraband due to being found in the vehicle with his father, who was driving. The court cited sections 35 and 54 of the NDPS Act, which place the burden on the applicant to prove lack of conscious possession. The court found the applicant's defense unconvincing and noted that both accused were found in a family-owned vehicle with a concealed cavity containing 50.300 kgs of charas.

6. Applicant's Background and Judicial Custody Duration:
The applicant's counsel highlighted his clean record and preparation for competitive examinations. However, the court found this argument insufficient, noting the incident occurred five years after the applicant completed his BCA, and he could not demonstrate his current educational pursuits.

7. Applicability of Section 37 of NDPS Act for Bail:
The court emphasized that section 37 of the NDPS Act imposes stringent conditions for bail, requiring the accused to show reasonable grounds for believing they are not guilty and are unlikely to commit an offense while on bail. The court found that these twin conditions were not satisfied in the applicant's case.

Conclusion:
The court dismissed the bail application, concluding that the applicant did not meet the stringent conditions under section 37 of the NDPS Act. The court found the prosecution's case credible regarding the applicant's conscious possession of a significant quantity of charas and noted that compliance with mandatory provisions and other issues raised by the applicant would be addressed during the trial.

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