Rajasthan High Court - Jodhpur
Megha vs State Of Rajasthan ... on 21 September, 2023
Bench: Kuldeep Mathur
[2023:RJ-JD:31288]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 8015/2023
Megha S/o Unkarlal Bheel, Aged About 42 Years, R/o Village
Manakpura, Police Station Bijaypur, Dist. Chittorgarh(Raj). (At
Present Lodged In Dist. Jail Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Shekhar Mewara
For Respondent(s) : Mr. S.K. Bhati, P.P.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
21/09/2023
This application for bail under Section 439 Cr.P.C. has been
filed by the petitioner who has been arrested in connection with
F.I.R. No.31/2020 registered at Police Station Vijaypur, District
Chittogarh for offences under Sections 8/15, 25 and 29 NDPS Act.
Heard learned counsel for the petitioner and learned Public
Prosecutor. Perused the material available on record.
As per prosecution, on receiving specific information, the
house of the petitioner was raided by SHO, PS, Bassi since the
post of SHO, PS Vijaynagar was vacant. A huge quantity of
contraband (poppy husk/ straw) was recovered from the
conscious/ constructive possession of the petitioner.
Learned counsel for the petitioner submitted that the
petitioner has been falsely implicated in the present case. Learned
counsel vehemently and fervently submitted that the documents
relating to the ownership of the house/ place from where
[2023:RJ-JD:31288] (2 of 4) [CRLMB-8015/2023]
contraband was recovered had not been obtained by the
Investigating Officer and thus, it cannot be said that the petitioner
was in conscious possession of the contraband. Learned counsel
further submitted that the sample of the contraband seized by the
Seizure Officer was not produced before competent criminal court
at the time when statements of the Seizure Officer were recorded.
Learned counsel submitted that the petitioner is in judicial
custody; challan against him has already been filed before
competent criminal court and the trial of the case is likely to
consume sufficiently long time to concerned and therefore, bail
may be granted to the accused-petitioner.
Per contra, learned Public Prosecutor vehemently opposed
the bail application.
Hon'ble the Supreme Court in the case of Madan Lal v.
State of H. P., reported in (2003) 7 SCC 465 while dealing with
the term 'conscious possession' observed that the question
regarding the same has to determined on the factual situation of
each case. The relevant paras of judgment rendered in the case
of Madan Lal (supra) are as follows:-
"....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 to work out a
completely logical and precise definition of
"possession" uniformally 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.
possession in a given case need not be
[2023:RJ-JD:31288] (3 of 4) [CRLMB-8015/2023]
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). 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.)
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.
(emphasis supplied)"
Having considered the arguments advanced by learned
counsel for the petitioner and the facts and circumstances of the
case, this Court prima facie finds that on receiving a specific
information, police party raided the place/house of the petitioner
from where contraband greater than commercial quantity was
recovered in his presence. This Court prima facie is of the view
that the petitioner may not be in actual physical possession of the
contraband but in the given facts and circumstances of the case, it
can be prima facie said that the contraband was under the power
and control of the petitioner. In the prima facie opinion of this
Court, in view of aforesaid factual scenario, the documents with
regard to ownership of the place/house were not required to be
obtained.
[2023:RJ-JD:31288] (4 of 4) [CRLMB-8015/2023]
Further, this Court prima facie finds that the trial against the
petitioner has already commenced and more than 12 cited
prosecution witnesses have already been examined. The trial is
therefore likely to be concluded in near future. The argument with
regard to violation of procedure and producing contraband by the
investigating agency thus can be considered by the competent
criminal court at appropriate stage during trial.
Since, the contraband was recovered from
conscious/constructive possession of the petitioner, the rigors of
Section 37 of NDPS Act apply to the prejudice of the petitioner
and therefore, this Court is not inclined to enlarge the petitioner
on bail.
The instant application for bail stands rejected.
(KULDEEP MATHUR),J
tarun goyal/-
Sr.No.718
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