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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.
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