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TMI Blog2014 (8) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the learned counsel for applicant that the whole prosecution story is false, the applicant has not committed any offence and has been illegally implicated in the case; that the applicant had recently completed BCA course and was preparing for competitive examinations, has never indulged in any illegal or criminal activities and has been booked in the case only because he is son of co-accused Rajesh Chandra Gupta. It has been contended that even if the prosecution story is taken as true then also it cannot be said that the applicant was having any knowledge of the charas being carried in the Bolero vehicle UK-50M/5586 and this fact is corroborated by their statements u/s 67 of the NDPS Act and in absence of any knowledge that narcotic substance is being transported in the vehicle, the applicant cannot be prosecuted. It has been further submitted that there is no independent witness of the locality and recovery has not been made at the spot; that the charge-sheet has been submitted without any report of chemical analysis, so it cannot be said that the recovered contraband is charas and thus the charge-sheet is incomplete and defective, therefore, the applicant is entitled for ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt; that the statements of the accused are admissible u/s 67 of NDPS Act and are not hit by section 25 of the Evidence Act. It is contended that the samples of the Charas were sent for examination to Central Revenues Control Laboratory, New Delhi and their report dated 4.3.2013 clearly indicates that the samples were received by them in sealed and intact condition and after thorough examination they have opined that the samples in question answers positive test for Charas. Lastly it has been submitted that the recovered Charas is much more than the commercial quantity, therefore, in view of provisions of section 37(1)(b)(ii) of the Act, the applicant is not entitled for bail. 5. This application for bail has been filed under Section 439 Cr. P. C., however, section 37 of the Act being a special enactment, general provisions of S. 439 of the Code will be required to be read subject to the limitations provided in S. 37 in view of Section 4 of Code of Criminal Procedure and sub-section (2) of Section 37 of the Act. 6. Section 37 of the NDPS Act, as substituted by Act 2 of 1989 with effect from 29th May, 1989 with further amendment by Act 9 of 2001 reads as follows: 37. Offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 9. Although at this stage 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 this issue had been illuminatingly answered by the Apex Court in the case of Narcotics Control Bureau Vs. R. Paulsamy (2000)9 SCC 549 and it has been observed in para-6 as under: In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the Court is satisfied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It needs no emphasis that to bring the offence within the mischief of section 20 of the Act possession has to be conscious possession. Section 35 of the Act recognizes that once possession is established the Court can presume that the accused had a culpable mental state, meaning thereby conscious possession. Further the person who claims that he was not in conscious possession has to establish it. Presumption of conscious possession is further available u/s 54 of the Act, which provides that accused may be presumed to have committed the offence unless he accounts for satisfactorily the possession of contraband. The view which we have taken finds support from a judgment of this Court in the case of Madan Lal and another V. State of H. P. 2003 (7) SCC 465, wherein it has been held as follows: 21. 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 the presumption available in law. Similar is the position in terms of section 54 where also presumption is available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. It has been vehemently argued by the learned counsel for the applicant that the accused appellant was produced before the Court 48-hours after his arrest by the department and as such his custody was illegal and it entitles him to be released on bail. Even if we accept this contention for the sake of argument only I am afraid whether this can be a ground for bail, after the accused is being granted successive legal judicial remands. The department has seriously objected to this plea on the premise that the accused was taken in to custody at 8.00 p.m. on 20.2.2013 and the following day he was produced before the Court. The accused was detained for enquiry by the department along with his father on 19.2.2013 at about 8.00 p.m. on Richcha Road and on the request of his father they were taken for search etc. to the office of Customs Department in Bareilly, where they reached at about 11.30 p.m and thereafter further proceedings regarding search, seizure, arrest etc. were undertaken. 15. It is not disputed that the search and seizure was not made by the arresting officer of the department at the spot, but at a quite distant place in the office of the department is wholly illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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