Jay Shankar Ray vs The Union Of India
2022 Latest Caselaw 170 Gua

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GAHC010135162021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : Bail Appln./2188/2021

            JAY SHANKAR RAY
            HOUSE NO. 18, K.C. SEN ROAD,
            SOLAPARA
            PALTANBAZAR, GUWAHATI-781008,
            DIST.KAMRUP (M), ASSAM



            VERSUS

            THE UNION OF INDIA
            REP.BY STANDING COUNSEL, NARCOTIC CONTROL BUREAU, GUWAHATI.



Advocate for the Petitioner   : MR S BORTHAKUR

Advocate for the Respondent : SC, NCB

BEFORE HON'BLE MR. JUSTICE HITESH KUMAR SARMA

19-01-2022

The Court proceedings have been conducted through Video- Conference due to Covid-19 pandemic.

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This is an application made under Section 439 Cr.P.C., seeking bail by the accused-petitioner, namely, Jay Shankar Ray, in connection with NDPS Case No.81/2019, pending in the Court of learned Special Judge, Kamrup (M), Assam, arising out of NCB Crime Case No.05/2019 under Section 21(C)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel, NCB, for the respondent.

Perused the scanned copy of the case diary/record.

On 7.5.2019, at about 12.30 p.m., the investigating police officer, with his team, went inside the Madhur Courier Service, H/no.78, Sapna Niwas, Opposite Hanuman Mandir, G.S. Road, Lachit Nagar, Guwahati, on the basis of an information received about narcotic drugs and, accordingly, 1000 bottles of contraband Phensedyl cough syrup were recovered and the accused persons including the present petitioner were arrested.

In this case, formal complaint has already been filed within the statutorily prescribed period of 180 days, the contraband seized being commercial in quantity.

Mr. Borthakur, learned counsel for the petitioner has taken this Court to paragraph-52 of the complaint at page-36 of the petition and submitted that as per the statements of accused Mahesh Roy, Nirmal Kumar Sah and Jay Shankar Ray (petitioner), the seized 1000 bottles of Phensedyl cough syrup was booked from Madhur Courier Services, Lucknow, but after proper verification, it has been found that actually the parcels were Page No.# 3/7

booked from Madhur Courier Services, Sultanpur and as per the statement of Abhay Jeet Panday, the Courier Service Manager, Manoj Singh @ Kallka Singh has booked the parcel consignment as consignor of the parcel. The 1000 bottles of Phensedyl cough syrup was to be handed over to Raja Bhai of M/s Rabul Electronics, Agartala by rail. As per the statement of Nirmal Kumar Sah and Jay Shankar Ray (petitioner), the seized 1000 bottles of Phensedyl cough syrup was picked up from Madhur Courier Services, Guwahati, as per direction of Mahesh Roy. He was supposed to keep the same inside the store of Nirmal Kumar Sah for further dispatch to Raja [email protected] Ragu Ravidas of Agartala.

Learned counsel for the petitioner has further referred to page-40 of the complaint, particularly the last paragraph of that page, to impress upon this Court that Jay Shankar Ray (petitioner) was only a labourer who had carried the Phensedyl cough syrup to the godown of co-accused Nirmal Kumar Shah, as he works there in the Courier Service of co- accused Nirmal Kumar Shah as labourer and, therefore, he had agreed to carry the same. He was supposed to be paid Rs.2,000/- for the said work.

Learned counsel for the petitioner has further referred to an order passed by this Court on 22.06.2021 in B.A. No.862 of 2021, particularly paragraph 10 thereof to impress upon this Court that the statement of the co-accused is irrelevant so far the implication of the present petitioner is concerned. Learned counsel for the petitioner has also put sufficient stress on the fact that the petitioner was only a labourer who had carried the contraband Phensedyl cough syrup as directed by the co-accused Nirmal Kumar Shah since he was working under him as a labourer against Page No.# 4/7

payment. The paragraph 10 of the aforesaid order refers to the decision of the Hon'ble Supreme Court in the case of Tofan Singh Vs. State of

Tamil Nadu in Criminal Appeal No.152 of 2013, decided on 29 th October, 2020, which held that the law relating to confessional statement, made before the investigating officer under the NDPS Act, has undergone a change and such statement is not to be treated as a confessional statement and the same is a statement as that of a statement made under Section 161 of the Code of Criminal Procedure.

However, the decision in Tofan Singh (supra) does not appear to be applicable in the instant case in view of the admitted position that in whatever capacity the accused petitioner was carrying the contraband or possessing the contraband, is a question of fact to be decided at the relevant point of time. But, the fact remains that it was recovered from his possession by the investigating officer. The recovery of the contraband from the possession of the petitioner is sufficient to negate the applicability of the decision rendered in Tofan Singh (supra) in the instant case.

Learned counsel for the petitioner has also referred to the decision of the Hon'ble Supreme Court in the case of Sanjeev Chandra Agarwal

and anr. Vs. Union of India, decided on 25th October, 2021, in Criminal Appeal Nos. 1273/2021 and has submitted that the reliance on the statement of co-accused under Section 67 of the NDPS Act by the High Court concerned was stated therein to be incorrect. This decision does not appear to be applicable in the instant case as the contraband was found in the possession of the present petitioner and, such was not the fact in the Page No.# 5/7

case referred to above.

Learned counsel for the petitioner has also referred to the decision of the Hon'ble Supreme Court in the case of Ram Singh Vs. Central Bureau of Narcotics, Tofan Singh (supra) reported in (2011) 11 SCC 347, particularly paragraphs 24 and 25 thereof.

The said paragraphs 24 and 25 of the said judgment are quoted below:-

"24. It is trite that to hold a person guilty, possession has to be conscious. Control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused it could be presumed that he was in conscious possession. Possession is a polymorphous term which carries different meaning in different context and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all the statutes. A servant of a hotel, in our opinion, cannot be said to be in possession of contraband belonging to his master unless it is proved that it was left in his custody over which he had absolute control.

25. Applying the aforesaid principle when we consider the facts of the present case it is difficult to hold that opium was in possession of the appellant. There is no evidence on record to suggest that the appellant was in occupation of the room from where opium was recovered. Further the evidence clearly points out that title to the opium vested in the owners of the hotel. The Page No.# 6/7

confession given by the appellant was only that he was servant of the owners of the hotel from where the opium was recovered. In the face of the state of evidence it is difficult to hold that the appellant was in conscious possession of the opium. Section 18 of the Act prescribes punishment for possession and that possession, in our opinion, has to be conscious. In the facts of the present case it is difficult to hold that the appellant was in possession of the opium and, therefore, his conviction and sentence cannot be sustained."

On perusal of the said decision, particularly, the above paragraphs, referred to by the learned counsel for the petitioner, this Court is not in agreement with the learned counsel for the petitioner as regards the conscious possession of the petitioner in respect of the seized contraband in this case. In the aforesaid decision, the fact indicate that the accused petitioner was not in possession of the room from where the opium involved in that case was recovered. However, in the instant case, the contraband was evidently and admittedly recovered from the possession of the present petitioner. Therefore,, on facts, the above decision of the Hon'ble Supreme Court appears to have no application in the instant case.

In view of the discussion above and the materials available on record as well as the admitted possession in respect of the recovery of the contraband involved in the instant case from the possession of the petitioner, this Court is prevented from recording its satisfaction as required under Section 37(1)(b)(ii) of the NDPS Act to the effect that the petitioner is not guilty of the offence alleged or that there is no probable Page No.# 7/7

materials against him to hold him guilty of the offence.

That being so, the prayer for bail of the petitioner stands rejected.

The bail application stands disposed of accordingly.

JUDGE

Comparing Assistant