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TMI Blog2005 (3) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... heroin and the other 1.25 kgs of opium. After investigation, a complaint was filed and therein it was recorded that the accused made a voluntary statement on 05.07.2004 under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'), whereby the accused/petitioner herein is said to have admitted the aforesaid recovery, seizure and other incriminating facts. 2. It is stated in the complaint that the petitioner admitted that on 04.07.2004, he was considering to visit Faridabad for some work and he called his friend Virender Sharma the same day, who is a resident of Jammu and told him that he was planning to go to Faridabad in the evening and that if he had time, he may accompany him as he would take his own vehicle and the same would be driven turn by turn by the two of them. It was stated that they would also meet his father in Delhi. The said Virender Sharma is said to have agreed to this proposal and while they were sitting in his house, a person known to the present petitioner, whose name was Balbir, came and asked them what they were discussing. The petitioner is said to have informed the said Balbir about their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the complaint, the petitioner is alleged to have further given the following statement:- On being asked about the name address of Balbir and his relationship with him, the accused stated that the name of Balbir was Balbir Singh (Billa) son of Gurdeep Singh resident of 84/3, Trikuta Nagar, Jammu and he was the son of his aunt (bua). On being further asked as to whether he had taken any goods from Ashok or he had dealt with him, he stated that he did not know Ashok earlier and he had not done any dealing with Ashok; that these polythene packets were given by him (Ashok) on the asking of Balbir first time. On being asked as to whether he had taken any money or any other thing from Balbir for bringing the maal, the accused replied in negative and stated that he had not taken any money or thing from Balbir; that he had brought the same as Balbir was his cousin and he was not aware that he would give him that type of goods and he would have any idea, he could not have brought the packets. On being asked, the accused stated that he or his family did not have any enmity or grudge with Balbir and why he had done this, only he can tell. 4. In the said complaint, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not have any conscious possession and, therefore, there existed reasonable grounds for believing that he is not guilty of any offence under the NDPS Act. Those decisions will be considered shortly. 8. The learned counsel for the State vehemently opposed the grant of bail. He submitted that since there is a recovery of a commercial quantity, the embargo of Section 37 of the NDPS Act comes into play. He further submitted that the complaint has already been filed and charges have been framed. He further submitted that Balbir is the petitioner's cousin, who handed over the contraband to the petitioner through Ashok. He also submitted that the petitioner is admittedly the actual owner of the vehicle Maruti 800 bearing registration No. HR-26A-2048 and that the recovery of the said 875 gms of heroin and 1.25 gms of opium was made from the vehicle from under the seat on which the petitioner was sitting. Therefore, according to the learned counsel for the State, this is a clear case where the petitioner ought not to be granted granted bail. 9. The learned counsel for the State further invited the attention of this court to the provisions of Section 35 and 54 of the NDPS Act wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Satish Aggarwal, the learned counsel for the State, relied upon the case of Ahmadalieva (supra), to show that the underlying object of Section 37 of the NDPS Act should not be overlooked and the confessional statement of the accused recorded under Section 37 of the Act must be taken note of. He relied upon the case of Babua alias Tazmul Hossain (supra), to show the deleterious effects that narcotic drugs and psychotropic substances have on society in general. He relied upon the observation of the Supreme Court to the following effect:- In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Section 37 have been upheld, we cannot take any other view . 11. The sum total of the arguments of the learned counsel for the State based upon the aforesaid decisions is that once possession is established, the presumption under Section 35 and Section 54 would come into play and the Court ought not to overlook the confessiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the learned counsel for the petitioner referred to the decision of the Supreme Court in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujart: 2000 (1) Crimes 187 (SC). This was a case under the NDPS Act. The learned counsel for the petitioner heavily relied upon this case and, therefore, it would be instructive to examine the facts of the same. The appellant in this case, was an auto rickshaw driver. The said auto rickshaw was intercepted by police personnel. Four gunny bags containing charas were found tagged in the vehicle. The appellant was arrested and prosecuted for offences under Section 20 of the NDPS Act besides Section 66(1)(b) of the Bombay Prohibition Act. What is material to note is that when the appellant in that case was questioned under Section 313 of the Code of Criminal Procedure, 1973, he did not dispute the fact that he rode the auto rickshaw and that the same was intercepted by the police party and that the gunny bags were taken out and were examined by them at the police station. His defense was that those four gunny bags were brought in a truck at Chokha Bazar by two persons, who unloaded them into his vehicle and directed him to transport the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly piece of evidence that has been put up by the prosecution in the present case is the alleged statement of the petitioner under Section 67 of the NDPS Act. He submits that even if the statement is taken to be entirely correct, firstly, it is not a confessional statement and, secondly, it clearly discloses that the petitioner did not have conscious possession of the contraband. In fact, the learned counsel for the petitioner also submitted that the statement of Virender Sharma as mentioned in the complaint itself also does not disclose any knowledge about the recovered substance. Therefore, it is his submission that on the basis of the very materials which have been put forth by the prosecution, it is apparent that the petitioner was not in conscious possession of the offending articles. 15. Of course, these are all materials which will have to be gone into at the stage of trial. However, when an application for bail is under the consideration of this court and the rigours of Section 37 of the NDPS Act are attracted, it is incumbent upon this court to examine as to whether there exist or do no exist reasonable grounds for believing that the petitioner is guilty of the offence c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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