TMI Blog2022 (4) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted as per Panchnama dated 25.03.2020. A seizure report under Section 57 of NDPS Act was accordingly submitted to the Superintendent, NCB by Shri Manoj Kumar, Jr. IO, NCB on 25.03.2020 regarding the seizure. 3. In furtherance to the notices issued under Section 67 of NDPS Act, all the accused persons appeared before Sh. Rajeev Sehrawat, IO and their statements were recorded. Accused Sunil Behera in his statement disclosed that he is engaged in business of supplying Ganja since last one year with the help of his brother Mayadhar Behera Arjun Pahadi. Further, he came to Virender Tanwar's home on 17.02.2020 to collect advance money. Virender Tanwar disclosed that he had already deposited all the amount with Mayadhar Behra and Arjun Pahadi's bank account. Accused Arjun Pahadi disclosed in his statement that he along with co-accused Mayadhar Behera was involved in Ganja business from last one year and they used to supply the said contraband from Ganjam, Orissa to Delhi NCR and Haryana. Further he stated that two months ago co-accused Virender Tanwar came to Orissa and requested him to supply 34 quintals of Ganja to Delhi and also sent money to the bank account of Arjun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the prosecution has failed to prove or even establish the foundation of possession by the petitioner/applicant since no call records between the petitioner and other co-accused have been established. It is submitted that the accused was unaware of the contraband and was merely a driver who had been engaged to drive the truck. The said truck is also stated to be not owned by the petitioner and as such the rigors of Section 35 and 54 of the NDPS Act are not applicable. It is also submitted that no monetary benefit was received by applicant for driving the truck. iii) That the rigors of Section 37 of NDPS Act are not attracted as no specific role was attributed against the petitioner during the alleged recovery and the petitioner has clean past antecedents. iv) That the statements given to the investigating agency under Section 67 of NDPS Act were inadmissible in view of the observations made by Hon'ble Supreme Court in Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1. 6. On the other hand the bail application has been vehemently opposed by learned counsel for the respondent/NCB. Reliance is also placed on the judgment passed by the Supreme Court in Union of India t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 22. The expression possession is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja (1979) 4 SCC 274: 1979 SCC (Cri.) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of possession uniformally applicable to all situations in the context of all statutes. Thus, 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. 9. 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 petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art from the benefit on account of sampling, the contentions had been made that the involvement was alleged on the basis of conspiracy and no incriminating material was recovered from the person of the petitioner/accused therein. 12. Observations of the learned Trial Court in order dated 06.08.2021 while dismissing the application on the point of sampling may be noticed: As the recovery was from the truck which he was driving therefore, there is definite presumption u/s. 35 and 54 NDPS Act against this accused at this stage, which could be rebutted during trial (Madan Lal vs. State of HP 2003(7) SCC 465 and Mohan Lal Vs. State of Rajasthan 2015 (6) SCC 222). The substance from each packet was tested individually and was found positive for ganja thereafter, all the 106 packets were divided into 13 lots and total 26 samples were drawn after mixing of the substance homogeneously and this procedure was found as due compliance as per mandate of judgment Sumit Tomer Vs. State of Punjab, Crl. Appeal No. 1690-1691/2012 dated 19.10.2012 (SC). Furthermore, Delhi High Court in a recent judgment titled Santinu Simone Vs. Department of Customs, Crl. Appeal No. 1088/2017 dated 05.10.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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