Mohd. Ali vs State (National Capital ...
2015 Latest Caselaw 8046 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   BAIL APPLN. 2109/2015
                             Date of Decision : October 19th, 2015
    MOHD. ALI
                                                      .....Petitioner
                        Through    Mr.Rajat Srivastav and Mr.Mohd.
                                   Jarjish, Advs.

                        Versus

    STATE (NATIONAL CAPITAL TERRITORY OF DELHI)
                                        .....Respondent

                        Through    Mr.G.M. Farooqui, APP with Insp.
                                   Pardeep, PS H.N. Din

           CORAM:
           HON'BLE MR. JUSTICE P.S.TEJI

    P.S.TEJI, J.

1. The present application has been filed by the applicant under

Section 439 read with Section 482 of the Code of Criminal Procedure,

1973 for the grant of regular bail in FIR No. 173/2014, Police Station

Hazrat Nizamuddin Railway Station, under Section 20 of the NDPS

Act.

2. The facts, in brief, are that the FIR of the present case was

registered as on 26.10.2014 inspector Satbir Singh with SI

Chandershekhar went for patrol at the Hazrat Nizamuddin Railway

Station and saw two persons, namely, Mohd. Ali (petitioner-herein)

and Munna Bhai roaming in suspicious condition checking the

parcels. Due to suspicion since both the persons sat on one parcel and

started checking with their fingers the said parcel, inspector Satbir

checked it and found Ganja in the parcel. Both the accused persons

failed to provide any authority letter for bringing Ganja from

Bhuvneshwar to Nizamuddin and thus both committed offence for

illegally bringing Ganja under the NDPS Act. The parcel weighed

around 52 kgs. Parcel was enclosed in white plastic cover upon which

railway mark R-19-10 BBS870289 P1 NZM was written with black

ink and 26.10.14 with blue ink. There was one cardboard carton

inside having seven packets sealed with tapes which were opened.

Total weight of all the 7 packets was 50 kgs. All the pulandas were

sealed and taken into the police custody. Since the petitioner-herein

and co-accused Munna Bhai were found possessing Ganja unlawfully,

thus FIR for offence under Section 20 NDPS Act was registered.

3. Arguments advanced by the learned counsel for the applicant

and the learned APP for the State were heard.

4. The arguments advanced by the learned counsel for the

petitioner/accused are that perusal of the order on charge reveals that

the applicant is connected with the alleged crime on the basis of

presumption, as prescribed in Section 35 of NDPS Act. It is further

submitted that possession cannot be presumed but when possession is

found, culpable mental state is to be presumed under Section 35 of the

NDPS Act. There was no conscious or actual possession of the

alleged contraband from the petitioner. It is further argued that the

applicant was arrested in this case on 27.10.2014 and is undergoing

judicial custody since then; nothing has been recovered from the

person of the applicant; applicant has the responsibility of his family;

charge sheet has already been filed; the bilti on which delivery was to

be collected was not in the name of either of the accused persons.

5. The learned Additional Public Prosecutor for the State has

opposed the bail application on the ground that production of the

parcel slip shows that both the accused persons had come to collect

the delivery of the parcel containing the Ganja and as such they would

be presumed to have deemed possession of Ganja. Further that from

investigation and circumstances till now, enough evidence against

applicant has been found.

6. The record reveals that the petitioner/accused Mohd. Ali along

with co-accused was found by the police at the railway station and

due to their suspicious behaviour around the parcel room, they were

apprehended. It is clear from the facts that 50 kgs of Ganja was

recovered from the parcel seized by the police on which the applicant

and his co-accused were sitting. Even during the search of the

accused, one receipt of the said parcel was recovered from him, which

connects him with the recovery of the contraband.

7. Keeping in view the quantity of the recovered Ganja which is

50 kgs and it being a commercial quantity which is covered under

Section 37 of the NDPS Act and also that the petitioner/accused and

the co-accused were having the possession of the bilti/deliver slip

which was having the same number on the document as on the parcel

seized, prima facie connects the accused with the alleged offence. As

the delivery slip was found to be in the possession of the accused and

looking at the seriousness of the offence committed by him, this Court

is of the view that the plea of the accused for grant of regular cannot

be allowed.

8. The application is accordingly dismissed. However, it is made

clear that the observations made above shall not affect the merits of

the case.

(P.S. TEJI) JUDGE OCTOBER 19, 2015 dd