TMI Blog2021 (9) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Uttar Pradesh Special Task Force, Lucknow UP-STF . A surveillance was conducted in the area around Babu Banarasi Das College and at 1600 hours, the car in which the respondent was travelling with the other two co-accused was intercepted. A search was conducted in the presence of a gazetted officer in view of the provisions of Section 50 of the NDPS Act but nothing objectionable was recovered in the course of the personal search. However, a search of the car revealed two polythene packets hidden under the place where the wiper is connected to the front bonnet of the car. The first packet weighed 1.740 kg, while the second packet weighed 1.750 kg. Samples were taken and upon testing with the drug detection kit, the samples tested positive for heroin. 3 Since the occupants of the car were not well- versed with Hindi or English, an official belonging to the Shasastra Seema Bal SSB was summoned at the spot for the purpose of translation as he hailed from Manipur and was conversant with the Manipuri language. The statements of the three accused persons were recorded in English and were translated in Manipuri by the official from the SSB and the accused were placed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or parties, going through the recovery memo, alleged statement of the applicant recorded under Section 67 of the NDPS Act and the certification of Shri L.H. Kapin, it is evident that indisputably the alleged contraband was recovered from the wiper fitted on the front bonnet of the vehicle, which was being driven by Rafiuddin and the applicant was sitting in the said vehicle along with Arif Khan. Admittedly, nothing was recovered from the possession of the applicant. Further, in the search memo prepared by the officials, they categorically mentioned that, since the persons were not well conversed with the Hindi or English language, Shri LH. Kapin, personnel of SSB IV Battalion, Lucknow was requested to arrive on the spot for explaining the contents. A perusal of Annexure No. 3 of the counter affidavit goes to show that the name of the applicant is mentioned on the statement, but it also reveals that while certifying this statement, Shri LH. Kapin mentioned in his certification that Translated the statement as stated by Md. Arif Khan and after recording of stated read over the statement and made understand in Manipuri Language. Thus, since the statement was explained to Mohd. Arif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions Judge at Lucknow as a result of which charges could not be framed and eventually a non-bailable warrant has been issued against the respondent. 11 On the other hand, Mr Rakesh Dahiya, learned Counsel appearing on behalf of the respondent submitted that the contraband in the present case was found concealed in the vehicle in which the respondent was travelling. Thus, it cannot be stated that it was the respondent who was in conscious possession of the contraband. Learned counsel submitted that the respondent is neither the driver nor the owner of the vehicle and in this backdrop, the order of the High Court enlarging him on bail cannot be faulted. 12 At the present stage, it is material to note that: (i) The vehicle which was intercepted at Lucknow was proceeding from Dimapur (Nagaland) towards Rampur (Uttar Pradesh); (ii) The quantity of 3.300 kg of a narcotic substance which is a commercial quantity was found concealed in the vehicle; (iii) The respondent is not an unknown passenger but a person who, according to the prosecution, was closely in contact with the co-accused. 13 The principles that guide this Court while assessing an order of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding. [ ] 16. Where a court considering an application for bail fails to consider relevant factors, an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in force on granting of bail. (emphasis supplied) 18 Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are : (i) The Prosecutor must be given an opportunity to oppose the application for bail; and (ii) There must exist reasonable grounds to believe that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail. 19 The standard prescribed for the grant of bail is reasonable ground to believe that the person is not guilty of the offence. Interpreting the standard of reasonable grounds to believe , a two-judge Bench of this Court in Shiv Shanker Kesari (supra), held that: 7. The expression used in Section 37(1)(b)(ii) is reasonable grounds . The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, namely (i) absence of recovery of the contraband from the possession of the respondent and (ii) the wrong name in the endorsement of translation of the statement under Section 67 of the NDPS Act. 22 We shall deal with each of these circumstances in turn. 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. In Madan Lal and Another v. State of Himachal Pradesh (2003) 7 SCC 465 this Court held that 19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 20. Section 20(b) makes poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erate the governing principles. At this stage of the proceedings, it needs only to be clarified that the trial is to take place this Court where evidence will be adduced. 24 As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik (2009) 2 SCC 624, 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. 25 In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. 26 With regard to the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten information was then sent to the Zonal Director. This Court Karnail Singh v. State of Haryana (2009) 8 SCC 539 held that though the writing down of information on the receipt of it should normally precede the search and seizure by the officer, in exceptional circumstances that warrant immediate and expedient action, the information shall be written down later along with the reason for the delay: 35. [ ](c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontraband found in the vehicle is of a commercial quantity; and (iv) The contraband was concealed in the vehicle in which the respondent was travelling with the co-accused. 31 The impugned order of the High Court, apart from observing that no contraband was found from the personal search of the respondent has ignored the above circumstances. The High Court has merely observed that [ ] In view of the above, the twin conditions contained under Section 37(1)(b) of the NDPS Act stand satisfied. This Court is of the view that if there is reasonable ground, the applicant is entitled to be released on bail. 32 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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