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2021 (9) TMI 1054 - SC - Indian LawsSeeking grant of Bail - smuggling - contraband item - Heroin - absence of recovery of the contraband from the possession of the respondent - wrong name in the endorsement of translation of the statement - Section 67 of the NDPS Act - HELD THAT:- The principles that guide this Court while assessing an order of the High Court granting bail have been succinctly laid down in PRASANTA KUMAR SARKAR VERSUS ASHIS CHATTERJEE AND ORS. [2010 (10) TMI 1199 - SUPREME COURT] - In Prasanta Kumar, while the trial court dismissed several bail applications that were filed by the accused who was charged for the commission of an offence punishable under Section 302 of the Indian Penal Code 1860, the High Court allowed the bail application - The decision in Prasanta Kumar was referred to in a judgment of this Court in MAHIPAL VERSUS RAJESH KUMAR @ POLIA & ANR. [2019 (12) TMI 1461 - SUPREME COURT], where the High Court had granted bail to an accused who was charged with the commission of an offence punishable under Section 302 of the IPC. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act - What amounts to “conscious possession” was also considered in DHARAMPAL SINGH VERSUS STATE OF PUNJAB [2010 (9) TMI 1005 - SUPREME COURT], where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, it is noted that in UNION OF INDIA VERSUS RATTAN MALLIK @ HABUL [2009 (1) TMI 844 - SUPREME COURT], a two-judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non-application of mind by the High Court. The High Court has clearly overlooked crucial requirements and glossed over the circumstances which were material to the issue as to whether a case for the grant of bail was established. In failing to do so, the order of the High Court becomes unsustainable. Moreover, it has emerged, during the course of the hearing that after the respondent was enlarged on bail he has consistently remained away from the criminal trial resulting in the issuance of a non-bailable warrant against him. The High Court ought to have given due weight to the seriousness and gravity of the crime which it has failed to do. The application for bail filed by the respondent shall stand dismissed.
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