Allahabad High Court
Shivam Singh vs U.O.I. Thru. N.C.B. Lko. on 4 January, 2023
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7348 of 2021
Applicant :- Shivam Singh
Opposite Party :- U.O.I. Thru. N.C.B. Lko.
Counsel for Applicant :- Raj Kumar Singh
Counsel for Opposite Party :- G.A.,Akhilesh Kumar Awasthi,Shikha Sinha
Hon'ble Mrs. Renu Agarwal,J.
Heard learned counsel for the applicant, Shri Akhilesh Kumar Awasthi, learned counsel for NCB and perused the record.
By means of this application the applicant has prayed to be enlarged on bail in Case Crime No.29 of 2020 under Sections 8/20/25/29 of the Narcotic Drugs and Psychotropic Substances Act, Police Station NCB, District Barabanki.
Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the instant case due to ulterior motive. The applicant was travelling from Bachhrawan to Haidergarh and has bona fidely hitched a ride with the co-accused Satyam Pandey. The applicant was not aware of the fact that ganja is being carried in the aforesaid car. There is no independent witness to the recovery. Mandatory provisions of Section 50 of the NDPS Act have been violated.The weight of the recovered substance is unreliable as scientific instruments were not applied in its weighment. The applicant does not have any criminal history apart from this case. The applicant is languishing in jail since 20.10.2020 hence the applicant is entitled to be enlarged on bail.
Learned A.G.A on the other hand has vehemently opposed the prayer for bail and submitted that no cause for falsely implicating the applicant has been disclosed by the applicant, 144 kg of ganja is said to have been recovered from the joint possession of the applicant and co-accused Satyam Pandey, the recovered substance is much higher than its commercial value which is 20kg, the burden of proof is on the applicant to show that he is not aware of the fact that such a huge amount of ganja is being carried in the car. Reliance is placed on the judgment of Supreme Court in the case of Union of India through Narcotics Control Bureau, Lucknow Vs. Md. Nawaz Khan reported at AIR 2021 Supreme Court 4476 to submit that once possession is established, the person who claims that it was not a conscious possession has to establish it. The relevant part of the judgment is reproduced below:
"Once possession is established, the person who claims that it was not a conscious possession has to establish it, because ow he came to be in possession is within his special knowledge; Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law."
Considering the facts and circumstances of the case and the fact that the 144 kg ganja is said to have been recovered from the car in which the applicant was travelling, and the applicant has failed to prove that he was not aware of the fact that contraband was being carried in the car, the quantity of recovered ganja is much higher than its commercial quantity which is 20kg, the applicant has also failed to satisfy the Court that he is not likely to commit any offence while on bail in view of Section 37.(b) (ii) of the Narcotic Drugs and Psychotropic Substance Act, 1985, the relevant provision is reproduced below:
"(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"
In view of the aforesaid discussions, this Court is not inclined to enlarge the applicant on bail.
Hence the bail application filed on behalf of the applicant is rejected.
(Mrs. Renu Agarwal,J.)
Order Date :- 4.1.2023
Nadeem
