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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 ..... hat 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 bail u/s 167 Cr. P. C. Mandatory provisions of sections 42, 50, 52, 55 and 57 have not been followed, which entitles the applicant to be released on bail, argued the learned counsel. It has been further contended that the alleged recovery of contraband was made on 19.2.2013 at about 8 p.m., but its memo had been prepared on 20.2.2013 and the applicant was produced before the Court on 21.2.2013 i. e. 48-hours after his detention, which is patently illegal so the applicant deserves bail. The case of the applicant is that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, 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 there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which the learned Single Judge should have been taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 be drawn from possession of illicit articles. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of section 35 and 54 of the Act." 11. The facts of the above are quite similar to the instant case, where both the accused are father and son; the vehicle is owned by the family i. e. registered in the name of the father of the applicant and both of them were found travelling in the car w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 illegal, argued the counsel for the applicant and it entitles him to be released on bail has been seriously objected to by the special counsel for the department and he has placed reliance on the case of Khet Singh vs. Union of India 2002 (45) ACC 41. In this case search and seizure was made at crossing where truck was intercepted but neither mahazar was drawn up at the spot nor the sample was taken, but they were prepared at the office of Customs where appellant was also present. The Hon'ble Court did not interfere in the conviction of the appellant on the premise th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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