Hardik Chawda vs State Of H.P
2023 Latest Caselaw 15464 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MPM No. 1176 of 2023 Reserved on: 26.09.2023

.

Date of Decision: 06th October, 2023

Hardik Chawda ....Petitioner

Versus State of H.P.

....Respondent

Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No

For the Petitioner : Mr. Ajit Sharma, Advocate.

For the Respondent : Mr. Navlesh Verma, Additional Advocate General with Mr. Prashant Sen, Deputy Advocate General.

Rakesh Kainthla,Judge

The petitioner has filed the present petition seeking

bail. It has been asserted that the petitioner was arrested for the

commission of an offence punishable under Sections 20 &29 of

the ND&PS Act, registered vide F.I.R. No. 44 of 2023, dated

10.02.2023 in Police Station Sadar, Mandi, District Mandi H.P. The

petitioner belongs to Mumbai. He had visited Kasol. He wanted

to travel to Chandigarh from where he was to board his train. He

contacted Gurumukh Singh and asked him to arrange a vehicle.

Whether reporters of the local papers may be allowed to see the judgment? Yes

Gurumukh Singh told the petitioner that his Taxi bearing

registration no. PB01B-9156 had broken down near Jari. Mangat

Mohammad, who was a mechanic, had visited Jari to repair the

.

vehicle and bring it back. It was agreed that the driver of the

vehicle would drop the petitioner for a fare of ₹4200/-. A Nakka

was laid on the Kullu-Mandi, Highway. The vehicle was signalled

to stop for checking at around 12:55 p.m. by the police. The driver

stopped the vehicle. The police recovered a bag containing 4.234

kgs of Charas. The petitioner told the police that he had hired the

vehicle as a passenger. Mr. Bhanu Pratap Singh, the Investigating

Officer, asked the petitioner to call the owner from his mobile

phone and enquire about the status of the driver. The petitioner

called the owner-Gurumukh Singh on his mobile phone, who told

the police that the petitioner had nothing to do with the

commission of the offence and the petitioner was travelling only

as a passenger. This conversation was recorded on the mobile

phone. The parents of the petitioners found the recording when

they got the mobile phone released from the Court. The petitioner

was falsely implicated. He has nothing to do with the

commission of offence. The contraband was already concealed in

the vehicle, unknown to the petitioner. The audio recording shows

the innocence of the petitioner. Even the Investigating Officer was

convinced of the innocence of the petitioner. The petitioner is a

young person and his future would be spoiled by keeping him

.

behind the bars, therefore, it was prayed that the present petition

be allowed and the petitioner be released on bail.

2. The petition was opposed by filing a status report,

asserting that the police were on patrolling duty on 10.02.2023 at

Vindravani. A vehicle bearing registration no.PB01B-9156 was

stopped for checking at around 12:55 p.m. Driver and petitioner

were occupying the vehicle. The petitioner picked up a bag from

the rear seat and tried to hand it over to the driver. The driver

pushed the bag with his elbow towards the petitioner. The police

searched the vehicle in the presence of the witnesses and

recovered a bag containing 4.234 kgs of Charas. The police also

found a leather wallet containing an ATM card, a driving licence of

Mangat Muhammad and currency worth ₹15/-. The petitioner and

driver revealed on enquiry that they had purchased the Charas

from some unknown person. The investigation was completed

and the challan was presented before the Court after the

completion of the investigation. It was found during the

investigation that the petitioner and the driver had talked to each

other, before the incident. The petitioner had also talked to the

owner of the vehicle 212 times within one year. The call detail and

tower location show that the petitioner and the driver were found

.

to be in Kasol (Manikaran). The RC of the vehicle shows that it is

owned by Gurumukh Singh. He had sold the vehicle to Gurtej

Singh vide an agreement. Gurtej Singh produced the documents

of the vehicle, which were seized by the police. Accused Mangat

Muhammad had visited Kullu thrice between 05.02.2023 and

10.02.2023. Mangat Muhammad was found to be in Ajijpur on

09.02.2023 and a receipt of Toll Plaza, Ajijpur, Punjab dated

09.02.2023, pertaining to the vehicle bearing registration No.

PB01B-9156 was recovered from his possession. As per the

certificate of the owner Gurtej Singh and the call details report of

the mobile phone of Mangat Muhammad, he was travelling in the

vehicle on 09.02.2023 at 3:34 p.m. Further investigation was

conducted as per the order passed by this Court by SHO Sakini

Kapoor. The owner Gurtej, made a statement that Mangat

Muhammad was the driver of the vehicle and Manoj Kumar was

not the driver. He had lied to the police during the inquiry. HC

Bhanu Partap Singh had talked to Gurtej Singh to know the

involvement of the other persons and the version of Gurtej Singh,

regarding Manoj, being the driver was found to be incorrect.

Petitioner Hardik Chawda visited Kullu for 5 days in April 2022, 7

days in May 2022, 7 days in July and August 2022, 7 days in

.

September, 2022, 4 days in December, 2022 and 4 days in

February 2023. He also talked to Mangat Muhammad 7 times

between 08.02.2023 and 10.02.2023. The mother of the petitioner

refused to hand over the mobile phone for verification of the

conversation stated to have been recorded in it. However, a USB

drive was seized and the same was sent to the SFSL, Junga where

no tempering was found in it. The challan was prepared and

presented before the Court. The matter is listed for supply of

documents on 04.11.2023.

3. I have heard Mr Ajit Sharma, learned counsel for the

petitioner and Mr. Navlesh Verma, learned Additional Advocate

General with Mr. Prashant Sen, learned Deputy Advocate General

for the State.

4. Mr. Ajit Sharma, learned counsel for the petitioner

submitted that the petitioner is innocent and he has been falsely

implicated. His innocence was asserted by the 0wner of the

vehicle. The bag from which the recovery was effected contained

the documents of the driver; therefore, the petitioner cannot be

said to be in conscious possession of Charas. There are reasons to

believe that the petitioner has not committed the offence. He has

also filed a petition under Section 482 Cr.P.C. for cancellation of

.

the F.I.R. as well as for investigation by an independent agency. He

prayed that the petitioner be released on bail.

5. Mr Navlesh Verma, learned Additional Advocate

General with Mr Prashant Sen, learned Deputy Advocate General

for the State submitted that there is sufficient material on record

to connect the petitioner with the commission of the offence. He

was found in the vehicle from which the contraband was

recovered. He tried to pass on the bag to the driver when the

vehicle was stopped by the police. His version that he had

engaged the vehicle on 10.02.2023 and he is innocent is not

supported by call detail, which shows that he had talked to

Mangat Muhammad as well as Gurtej. He had visited Himachal 6

times during the one year, for which no explanation has been

provided. The theory propounded by the petitioner that the

vehicle had developed a defect and Mangat Muhammad was a

mechanic sent to retrieve the vehicle is falsified by the receipt of

the Toll Plaza. The petitioner was found in possession of a

commercial quantity of narcotics, which is a serious offence.

Therefore, he prayed that the petition be dismissed.

6. I have given considerable thought to the rival

.

submissions at the bar and have gone through the record

carefully.

7. Hon'ble Supreme Court explained the principles of bail

inDeepak Yadav Versus State of U P & Anr 2022 (8) SCC 559 as

under-

A. Principles governing the grant of bail

[19] Section 439 of the Cr. P.C. is the guiding principle

for adjudicating a Regular Bail Application wherein the Court takes into consideration several aspects. The jurisdiction to grant bail has to be exercised cautiously on the basis of well-settled principles having regard to

the facts and circumstances of each case.

[20] In Prahlad Singh Bhati Vs. NCT of Delhi And Another, 2001 4 SCC 280, a two-Judge Bench of this Court stated the

principles which are to be considered while granting bail which are as follows:

"8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard

to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of the accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable

apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail, the

.

Legislature has used the words "reasonable grounds

for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against

the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond a reasonable doubt."

[21] As reiterated by the two-judge Bench of this Court in Prasanta Kumar Sarkar Vs. Ashish Chatterjee And Another, 2010 14 SCC 496, it is well-settled that the

factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if

released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by a grant of bail.

[22] The decision in Prasanta (Supra) has been consistently followed by this Court in Ash Mohammad Vs.

Shiv Raj Singh alias Lalla Babu And Another, 2012 9 SCC 446, Ranjit Singh Vs. State of Madhya Pradesh And Others, 2013 16 SCC 797, Neeru Yadav Vs. State of Uttar Pradesh And Another, 2014 16 SCC 508, Virupakshappa Gouda And

.

Another Vs. State of Karnataka And Another, 2017 5 SCC

406 State of Orissa Vs. Mahimananda Mishra, 2018 10 SCC

516.

[23] In a recent pronouncement of this Court in the case

of 'Y' Vs. State of Rajasthan & Anr. [Criminal Appeal No. 649 of 2022 decided on 19.04.2022] authored by one of us (Hon'ble N.V. Ramana, CJI), it has been observed as under:-

"22. The impugned order passed by the High Court is cryptic and does not suggest any application of mind. There is a recent trend of passing such orders granting or refusing to grant bail, where the Courts

make a general observation that "the facts and the

circumstances" have been considered. No specific reasons are indicated, which precipitated the passing of the order by the Court.

23. Such a situation continues despite various

judgments of this Court wherein this Court has disapproved of such a practice. In the case of Mahipal (Supra), this Court observed as follows:-

25. Merely recording "having perused the record" and "on the facts and circumstances

of the case" does not subserve the purpose of a reasoned judicial order. It is a fundamental

premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment.

Questions of the grant of bail concern both the liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those

.

who commit crimes are not afforded the

opportunity to obstruct justice. Judges are duty-bound to explain the basis on which they have arrived at a conclusion."(emphasis

supplied)

[24] For grant or denial of bail, the "nature of the crime" has huge relevancy. The key consideration which governs the grant of bail were elucidated in the

judgment of this Court in Ram Govind Upadhyay Vs. Sudarshan Singh, 2002 3 SCC 598 wherein it has been observed as under: -

"4. Apart from the above, certain others which r may be attributed to be relevant considerations

may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment if the

accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of

there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of

.

there being some doubt as to the genuineness

of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

[25] Similarly, the parameters to be taken into consideration for the grant of bail by the courts has been described in Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav And Another, 2004 7 SCC 528

as under: -

"11. The law in regard to grant or refusal of bail is very well-settled. The Court granting bail should exercise its discretion in a judicious r manner and not as a matter of course. Though

at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in

such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged with having committed a

serious offence. Any order devoid of such reasons would suffer from non-application of

mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail;

they are:

(a) the nature of the accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

8. As per the prosecution case, the petitioner was found

in possession of 4.234 kg of Charas, which is a commercial

quantity.

.

9. Section 37 of the NDPS Act provides that in an offence

involving commercial quantity, the Court should be satisfied that

the accused is not guilty of the commission of an offence and is

not likely to commit any offence while on bail. Section 37 of the

NDPS Act reads as under:

"37. Offences to be cognizable and non-bailable. - (1)

Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974)--

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity

shall 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.

(2) The limitations on granting of bail specified in clause

(b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or

any other law for the time being in force, on granting of bail."

10. This section was interpreted by the Hon'ble Supreme

.

Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC

738 and it was held that in the absence of the satisfaction that the

accused is not guilty of an offence and he is not likely to commit

an offence while on bail, he cannot be released on bail. It was

observed:

"7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said Section. They are :

(1) In the case of a person accused of an offence

punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and

(4) Of offences involving commercial quantity.

8. The accusation in the present case is with regard to the

fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for

bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be

mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment.

(1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence;

(2) that person is not likely to commit any offence while on bail."

11. This position was reiterated in State of Kerala Versus

Rajesh AIR 2020 SC 721, wherein it was held:

.

"19. This Court has laid down broad parameters to be

followed while considering the application for bail moved by the accused involved in offences under the NDPS Act. In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC 429, it

has been elaborated as under:-

"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder

case, the accused commits the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young

victims, who are vulnerable; it causes deleterious

effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing

in intoxicants clandestinely. The reason may be the large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly

observed about the adverse effect of such activities in Durand Didier vs. Chief Secy., Union Territory of Goa,

(1990) 1 SCC 95) as under:

24. With deep concern, we may point out that

the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in

order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its

.

wisdom, has made effective provisions by

introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

8. To check the menace of dangerous drugs flooding

the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence

while on bail are satisfied. The High Court has

not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of

the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the

court should implement the law in the spirit with which Parliament, after due deliberation,

has amended."

20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations

contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37 which commences with the non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application, and the second is

that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

.

21. The expression "reasonable grounds" means something

more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated

in the provision requires the existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have

completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the

matter of bail under the NDPS Act is indeed uncalled for."

12. The petitioner has heavily relied upon the

conversation held between the Investigating Officer and the

owner of the vehicle. This conversation duly confirms the

recovery from the vehicle. It was submitted that Gurtej Singh had

told the police that the driver Manoj Kumar had taken the vehicle,

which became defective and contraband belonged to him. This

statement shows the innocence of the petitioner. This submission

is not acceptable. This is a statement made by a third person

regarding the involvement of some other person and its veracity

is yet to be tested by a trial. The police recorded the statement of

Gurtej Singh, in which he stated that he had made a false

statement to save the driver Mangat Muhammad. Hence, the

statement cannot be accepted as correct at this stage. It is to be

verified during the trial whether the statement made by Gurtej

.

Singh to the police during the phone conversation or in the

affidavit furnished by him is correct. Prima facie the statement

made by a person, who was not even present on the spot at the

time of the incident will not much have probative value to

determine the innocence of the person present on the spot.

13. At this stage, the police have collected the call detail

record and the receipt of the toll plaza, which shows that the

vehicle bearing No. PB-01B-9156 was present on 09.02.2023, at

Ajijpur, Punjab. This evidence shows that Mangat Muhammad

was also present at Ajijpur, Punjab at that time. Therefore, the

whole theory propounded by Gurtej Singh that the vehicle was

taken by Manoj, which became defective and Mangat Muhammad

was sent to retrieve the vehicle is not supported by the

circumstances.

14. The petitioner claimed that he wanted to visit

Chandigarh and had called Gurtej Singh. He stated that he had

boarded the vehicle as a passenger and could not be held liable for

any article being transported in it. The evidence does not

establish this plea at this stage. The police found that the

petitioner had talked to Gurtej Singh 212 times within 1 year. Even

he had talked to Mangat Muhammad 7 times between 08.02.2023

.

and 10.02.2023. These conversations prima facie support the

submission of Mr. Navlesh Verma, learned Additional Advocate

General that the petitioner knew these persons and that is why he

was in touch with them. These conversations do not establish the

version of the petitioner that Mangat Muhammad was a stranger.

It was specifically stated in the F.I.R. that the bag was found on the

rear seat where the petitioner was sitting. The petitioner tried to

pass the bag to the driver, who pushed it with his elbow. No

explanation of this conduct has been provided. Prima facie a

passenger travelling in a vehicle not knowing about the contents

of the bag would not attempt to pass it to the driver after being

stopped by the police. This conduct coupled with the previous

conversation and the presence of the petitioner and the driver at

Manikarn will not support the plea of the petitioner that there are

no reasonable grounds to connect him with the commission of the

offence.

15. It was submitted that the conscious possession has not

been proved. Reliance was placed upon the judgment of the

Hon'ble Supreme Court in Mohan Lal vs. State of Rajasthan 2015(6)

SCC 222, and the judgment of this Court in Seema vs. State of H.P.,

Cr.MP(M) No. 581 of 2021, decided on 10.05.2021 to submit that the

.

possession has to be conscious. It is not necessary to discuss all

these judgments individually because the matter is concluded by

the judgment of Hon'ble Supreme Court in Madan Lal v. State of

H.P., (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLine SC

874, wherein the Hon'ble Supreme Court held that the persons

travelling in a vehicle knowing each other would be presumed to

be in conscious possession and the burden shifts upon them that

their possession was not conscious. It was observed at page 471:

"18. The other plea which was emphasized was the

alleged statement of accused GoyalNath that he alone was in possession of the contraband bags. The plea centres around a statement of search witness PW 1, who

stated that GoyalNath told him that the contraband articles belonged to him. The statement was made

totally out of context and no credence can at all be attached to the statement. The accused GoyalNath in his examination under Section 313 of the Code of Criminal

Procedure, 1973 (in short "the Code") did not state that he alone was in possession of the contraband articles. On the contrary, he stated that he did not know anything about the alleged seizure.

19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling

in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

.

20. Section 20(b) makes possession of contraband

articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the

possession illicit, there must be a conscious possession.

21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious 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" uniformly applicable to all situations in the context of all statutes.

23. The word "conscious" means awareness about a

particular fact. It is a state of mind which is deliberate or intended.

24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756] possession in a given case need not be physical possession but can be

constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.

25. The word "possession" means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC 498 : (1972) 2 WLR 1306 (HL)] ). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he

must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966 : (1976) 2 WLR 361 (QBD)] .)

26. 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 Act gives a statutory recognition of this position because of the

presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.

27. In the factual scenario of the present case, not only

possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.

28. In fact, the evidence clearly establishes that they

knew about the transportation of charas, and each had a role in the transportation and possession with conscious knowledge of what they were doing. The accused-appellant Manjit Singh does not stand on a

different footing merely because he was the driver of the vehicle. The logic applicable to other accused- appellants also applies to Manjit Singh."

16. In the presence case, the petitioner knew the driver as

he was in touch with him before the incident. He was present with

the driver at Manikarn before the incident; therefore, the primary

requirement that occupants know each other has been satisfied in

the present case and the petitioner would be, prima facie, deemed

to be in conscious possession as per the judgment of the Hon'ble

Supreme Court.

17. In Madan Lal's case(supra), one of the accused had

made the statement in the presence of the search witness that the

contraband belonged to him. However, the Hon'ble Supreme

.

Court refused to rely upon the statement and held that all the

occupants would be deemed to be in conscious possession.

18. In the present case, no statement is coming on record

and even if the statement of Gurtej made during the phone

conversation is taken to be correct, it will not absolve the

petitioner.

19. It was submitted that the investigation was not fair as

the police had not traced Manoj Kumar, and had not made the

owner an accused. This submission is not acceptable. Even the

transcript of the conversation that was placed on record, does not

show that Gurtej was in any manner instrumental in keeping the

Charas in the vehicle. Manoj Kumar, who was stated to be the

driver, could not be traced as his whereabouts were not given. The

police had handed over the investigation to an independent police

officer in the rank of SHO after the conversation was brought to

its notice; therefore, it cannot be said that the investigation was

not fair in the present case.

20. Reliance has been placed upon the various judgments

of the Hon'ble Supreme Court in bail petition. However, in the

present case, the rigours of Section 37 apply and unless the

.

petitioner can get rid of them, he cannot be released on bail as per

the plain language of the statute interpreted by the Hon'ble

Supreme Court. Thus, the judgments on bail will not assist the

petitioner.

21. The recovery of contraband and the presence of the

petitioner in the car are not in dispute. The petitioner is deemed to

be in possession as noticed above. Therefore, it cannot be said

there is no reason to believe that the petitioner is not connected

with the commission of the offence. Hence, the rigours of Section

37 of the ND&PS Act will apply to the present case with full force.

22. In view of the above, the present petition fails and the

same is dismissed. The observations made hereinabove are

regarding the disposal of this petition and will have no bearing

whatsoever on the merits of the case.

(Rakesh Kainthla) Judge

06th October,2023 (Ravinder)

.

.