JUDGMENT Badar Durrez Ahmed, J.
1.The case for the prosecution is that on 05.07.2004, a secret information was received by the Narcotic Control Bureau, Delhi that a blue coloured Maruti 800 car bearing registration No.HR-26A-2048 carrying narcotic drugs would arrive for delivery in New Delhi on 05.07.2004 itself. A search authorisation was issued in favor of H.K. Pandey, Intelligence Officer, NCB, New Delhi and his associates and these officers apprehended the said vehicle at about 8.45 p.m. on 05.07.2004 near the Bus Stand (Near Purti Canteen of CRPF of R.K. Puram, New Delhi). The present petitioner (Kamaljeet Singh) and one Virender Sharma were apprehended. Allegedly, one polythene bag marked "School Uniform" libas Internation" was recovered under the seat where the petitioner had been sitting. This seat was adjacent to the driver's seat. On opening the polythene bag, two further packets were found, one of which is said to have contained 875 gms of 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 proposed plan to go to Faridabad and Delhi. The said Balbir, after taking tea with them, left and returned after about 1 to 11/2 hours and told them that he too was to go to Delhi for some urgent work but due to some reasons he was unable to go. However, he (Balbir) had to give some goods to his friend Ravinder in Delhi and if the petitioner could take the same, then he would arrange to send the goods through his friend Ashok, who would deliver the same to him at Satwari Chowk. He also told the petitioner that Ashok was a resident of Rehari Bus Stand. The petitioner gave Balbir his vehicle number and Balbir told him that he need not contact Ashok and Ashok himself would reach Satwari Chowk and would meet them in their vehicle.
3. As agreed, on 04.07.2004, the petitioner and Virender Sharma are said to have departed from their home in the evening and reached Satwari Chowk. After some time one boy came to them and disclosed his name as Ashok and said that he has been sent by Balbir and he handed them a polythene bag. The petitioner kept this polythene bag under his seat and they drove off to Faridabad. The petitioner and the said Virender Sharma reached Faridabad in the morning on 05.07.2005 and stayed with his brother. During the day, the said Balbir telephoned and informed the petitioner that Ravinder would meet them in the evening in Delhi in front of CRPF Canteen, Sector-1, R.K. Puram, which is opposite the Fire Brigade and he had given his vehicle number to him. He said that Ravinder would meet them and on his demand, the polythene packet may be delivered to him. It is further stated that the petitioner and Virender Sharma reached the designated place, i.e., the said CRPF Canteen at about 8 p.m. on 05.07.2004 and waited for Ravinder in their vehicle. However, after some time, some persons surrounded them and informed that they were NCB officers. On being asked as to whom the packet, recovered from the vehicle, was to be delivered, the petitioner stated that he had nothing to do with the packet recovered from his vehicle and that the same was given to him by Ashok on the asking of Balbir in Jammu which was to be delivered to a person named Ravinder at this place. It is alleged that the petitioner further stated that Ashok gave him the packet at Satwari Chowk in Jammu and that he was not at all aware that the same contained smack (heroin) and opium. As 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 further stated that Virender Sharma, in his statement under Section 67 of the NDPS Act also admitted the aforesaid recovery, seizure in his presence and, inter alia, admitted the correctness of the panchnama but denied any knowledge about the recovered substance.
5. In this background, the learned counsel for the petitioner has argued for the grant of bail. Undoubtedly, the alleged recovery is of a commercial quantity and, therefore, the provisions of Section 37 of the NDPS Act would be attracted. Section 37 of the NDPS Act does not bar the grant of bail, however, it imposes certain restrictions inasmuch as, no person, inter alia, accused of an offence involving commercial quantity, can be released on bail or on his own bond unless--
i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
Section 37(2) makes it clear that the limitation on granting bail specified in Section 37(1)(b) is in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on grant of bail.
6. The learned counsel for the petitioner submitted that insofar as the first part of the limitation is concerned, that has been satisfied inasmuch as the Public Prosecutor has been granted an opportunity to oppose the application and the Public Prosecutor has opposed the grant of bail and has, in fact, even filed a reply in this case. Thus, before the petitioner can be released on bail, the court has to be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such an offence and further that he is not likely to commit any offence while on bail.
7. The learned counsel for the petitioner submitted that the statement of the petitioner, as indicated in the complaint itself, is not a confession inasmuch as it is exculpatory and not inculpatory. He submits that the petitioner has admitted the recovery but has explicitly denied any knowledge of the contents of the polythene packet. The learned counsel for the petitioner relied upon several decisions of the Supreme Court to substantiate his arguments that the petitioner 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 which read as under:-
"35.Presumption of culpable mental state.--(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.--In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in or reason to believe a fact.
(2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
"54. Presumption from possession of illicit articles.--In trial sunder this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of--
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specifically designed or any group of utensils specially adopted for the manufacture of any narcotic drugs or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substances or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily."
10. The learned counsel for the State specifically relied upon the following three decisions:-
i) Madan Lal and Anr v. State of Himachal Pradesh: 2003 (2) CC Cases 227 (SC);
ii) Customs v. Ahmadalieva Nodira: 2004 (2) CC Cases (SC) 148; and
iii) Babua alias Tazmul Hossain v. State of Orissa: 2001 AIR SCW 682 (SC).
In Madan Lal (supra), it has been observed that once possession is established, the person, who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the NDPS Act gives a statutory recognition of this possession because of presumption available in law. Mr 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 confessional statement of the petitioner, nor should the underlying object of Section 37 as indicated in the case of Babua alias Tazmul Hossain (supra), be ignored. Accordingly, he submitted that the petitioner, who had made a confessional statement and admitted the recovery of the heroin and opium ought not to be released on bail. The learned counsel for the State made a further argument which only needs to be stated to be rejected. This argument was that once a charge is framed, in view of Section 37 of the NDPS Act, bail should not be granted. In fact, since he was adamant about this submission, I had asked the learned counsel to produce one precedent which supported his contention. He was unable to do so.
12. Now, I shall take up the submissions made by the counsel for the petitioner and in particular, the judgments which he relied upon. The learned counsel for the petitioner submitted various judgments. However, only two may be considered. First of all, the learned counsel for the petitioner relied upon the decision in the case of Sanjay Dutt v. State: (II) 1994 5 SCC 410 and in particular he referred to paragraph 19 thereof which considered the meaning of "conscious possession" as appearing in Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'the TADA Act'). The said paragraph reads as under:-
"19.The meaning of the first ingredient of 'possession' of any such arms etc. is not disputed. Even though the word 'possession' is not preceded by any adjective like 'knowingly', yet it is common ground that in the context the word 'possession' must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood."
13. So, it was held by the Supreme Court in the context of the TADA Act that "possession", although not prefixed by any adjective, must mean possession with requisite mental element, i.e., conscious possession. Thereafter, 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 to the destination mentioned by them. He carried out the assignment without knowing what were the contents of the load in the gunny bags. The High Court in that case, convicted the said appellant on the basis of presumption under Section 35 of the Act inasmuch as according to the High Court the appellant had failed to prove that he did not know the contents of the load. The Supreme Court after examining the provisions of Section 35 of the NDPS Act, observed that if the court entertains a strong doubt regarding the accused's awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt undispelled. In this context, the Supreme Court observed that the burden of proof cast on the accused under Section 35 can be discharged through different modes. In paragraph 22 of the said judgment, the Supreme Court held as under:-
"22.The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defense. In other words, if circumstance appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defense."
14. Thus, the accused may discharge the burden cast upon him by virtue of the presumptions raised under Section 35 and Section 54 of the NDPS Act by either relying on the materials available in the prosecution evidence itself or elicit answers in cross-examination from prosecution witnesses to dispell the doubts or he may adduce evidence of his own. The learned counsel for the petitioner submitted in this context that the facts of the present case are similar to that in the case of Abdul Rashid Ibrahim Mansuri(supra), where the appellant had been acquitted for not being in conscious possession of the offending articles. He further submitted that the only 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 charged. This consideration has to be on the basis of the materials available on the date on which the application for bail is considered. Moreover, the satisfaction recorded by the court at this stage is only a prima facie view and would not affect the consideration of the case by the trial court.
16. Looking at the entire factual material, as indicated above, it does appear that apart from the so-called confessional statement and the admission that one packet was recovered from under the seat on which the petitioner was seated in the said Maruti 800 vehicle, there is no other evidence available with the prosecution. The so-called confessional statement, at this stage, does not appear to me to be a confession at all. In fact, the statement discloses that the petitioner did not know of the contents of the packet.
17. This being the case, it does appear that the petitioner was not in conscious possession of the said contraband. Therefore, I am satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offences for which he has been charged. As regards the question as to whether he is likely to commit any offence while on bail, no circumstance has been brought to my notice which would indicate that there is such a likelihood. It is also not the case of the State that the petitioner has been involved in any other NDPS related cases. In this view of the matter, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs.50,000/- with two sureties of the like amount to the satisfaction of the concerned trial court.
The application stands disposed of.
dusty.