Rajasthan High Court

Jeetram S/O Bhanwar Lal vs State Of Rajasthan on 11 September, 2024

Author: Ganesh Ram Meena

Bench: Ganesh Ram Meena

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

     S.B. Criminal Miscellaneous Bail Application No. 10750/2024

Jeetram S/o Bhanwar Lal, Aged About 32 Years, R/o Truck Stand
Malpura, Police Station Malpura, District Tonk.


                     (At Present In District Jail, Tonk)
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Abdul Kalam Khan with
                                  Mr. Ritesh Kumawat and
                                  Mr. Sanjay Gurjar
For Respondent(s)           :     Mr. N.S. Dhakad, learned Public
                                  Prosecutor

HON'BLE MR. JUSTICE GANESH RAM MEENA

Order

Reserved on ::: Sept. 03, 2024 Pronounced on ::: Sept. 11, 2024

1. The present bail application has been filed by the

accused petitioner under section 483 of the BNSS, 2023 in

connection with FIR No. 0293/2023 dated 21.12.2023

registered at Police Station Peeplu, District Tonk for the

offence punishable under section 8/25 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (for short 'the Act of

1985').

2. Facts of the case in nutshell are that on 31.12.2023

Mr. Jaimal Singh, Sub Inspector- SHO, Peeplu along-with

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police personnel were on patrolling in the night. When they

reached in front of Nathdi near Maasi Nahar, one Swift Dzire

Car came towards Jhirana. After seeing the patrolling party,

they took the car from the main road to the Kachha way

going towards Naya Village. The police team after chasing

stopped the car and when asked the name then the person

driving the car stated his name as Bhajanlal Kumhar s/o

Hanuman Kumhar and the person who was sitting adjacent

stated his name as Khushiram Jat s/o Rajaram Jat and the

person who was sitting in the middle stated his name as

Udairam Gurjar s/o Gordhan. During the course of search of

Car bearing number RJ-26-CA-4005, on the middle seat, two

plastic bags (katte) and two other plastic bags (katta) were

found in filled condition in luggage dickey. All the above-

named three persons failed to give any satisfactory reply.

After opening the bags (katte), when same were checked

then it was detected 'Doda Chura'. When licence in regard to

same was asked then they showed inability. The net weight of

'Doda Chura' was 75 kg. and 309 gm.

3. Counsel appearing for the accused petitioner

submitted that the accused petitioner is an innocent person

and he has been implicated in the present case merely

because he is the registered owner of the Swift Dzire Car

bearing Registration number RJ-26-CA-4005, from which the

alleged contraband was recovered at the time when co-

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accused persons namely; Bhajan Lal Kumhar and Khushi

Ram Jat were present inside, in view of the provisions of

Section 25 of the NDPS Act.

Counsel further submitted that the accused

petitioner is a student and he is preparing for the competitive

examinations and he was not present in the car in question at

the time of recovery of the contraband article. Counsel also

submitted that on demand of the said Car, the accused

petitioner has given his car to his relative and the petitioner

was not having any knowledge about transporting of the

alleged contraband in the aforesaid Car. Counsel further

submitted that the accused petitioner is in custody since

11.06.2024 and charge-sheet has already been filed in the

matter and the trial of the case will take considerable and

prayed that he may be released on bail.

4. Counsel further submitted that co-accused persons

namely; Rajulal, Bannalal and Jeevraj Karasadha have been

granted indulgence of bail by this Court vide order dated

21.08.2024 and the case of the present accused petitioner is

on similar footings. Hence, the present present accused

petitioner may also be extended similar benefit of bail by this

Court.

Counsel for the accused petitioner in support of his

submissions has placed reliance upon the following orders

decided by the Co-ordinate Bench of this Court:-

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1. Ravindra & Anr. Vs. State of Rajasthan (S.B. Criminal Misc.

Bail Application No.11177/2023, dated 18.09.2023;

2. Babulal Vs. State of Raj. (S.B. Criminal Misc. Bail Application No.6739/2024) decided on 02.08.2024'

3. Mahesh Saini Vs. State of Raj. (S.B. Criminal Misc. Bail Application No.9855/2023) decided on 04.08.2023; and

4. Imran Ahmed Vs. State of Rajasthan (S.B. Criminal Misc.

Bail Application No. 9006/2024) decided on 22.08.2024.

5. Learned Public Prosecutor appearing for the State

has vehemently opposed the bail application and submitted

that the provision of Section 25 of the NDPS Act speaks that

the registered owner of the vehicle actively involved in the

offence, shall also be an accused. It is not in dispute that the

accused petitioner is the registered owner of the vehicle Swift

Dzire Car bearing Registration number RJ-26-CA-4005 from

which the contraband was recovered which is more than the

commercial quantity in the presesence of co-accused persons

namely; Bhajan Lal Kumhar and Khusiram Jat. He further

submitted that in such cases also the provisions of section 37

of the NDPS Act are also attracted.

6. Considered the submissions advanced by the

counsel appearing for the accused petitioner, learned Public

Prosecutor appearing for the State and perused the challan

papers.

7. The provisions for making consideration of the bail

application of the accused petitioner in the facts and

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circumstances of the present case are sections 25, 35, 37 and 54

of the Act of 1985, which are quoted as under:-

"25. Punishment for allowing premises, etc., to be

used for commission of an offence.-- Whoever,

being the owner or occupier or having the control or

use of any house, room, enclosure, space, place,

animal or conveyance, knowingly permits it to be used

for the commission by any other person of an offence

punishable under any provision of this Act, shall be

punishable with the punishment provided for that

offence.

35. Presumption of culpable mental state.--(1) In

any prosecution for an offence under this Act which

requires a culpable mental state of the accused, the

court shall presume the existence of such mental state

but it shall be a defence for the accused to prove the

fact that he had no such mental state with respect to

the act charged as an offence in that prosecution.

Explanation.--In this section "culpable mental state"

includes intention motive, knowledge of a fact and

belief in, or reason to believe, a fact.

(2) For the purpose of this section , a fact is said to be

proved only when the court believes it to exist beyond

a reasonable doubt and not merely when its existence

is established by a preponderance of probability.

37. Offences to be cognizable and non-bailable.--

(1) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974),--

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(a) every offence punishable under this Act shall be

cognizable;

(b) no person accused of an offence punishable for 3

[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.

54. Presumption from possession of illicit

articles.--In trials under this Act, it may be presumed,

unless and until the contrary is proved, that the

accused has committed an offence under this Act in

respect of--

(a) any narcotic drug or psychotropic substance or

controlled substance;

(b) any opium poppy, cannabis plant or coca plant

growing on any land which he has cultivated;

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utensils specially adopted for the manufacture of any

narcotic drug or psychotropic substance or controlled

substance; or

(d) any materials which have undergone any process

towards the manufacture of a narcotic drug or

psychotropic substance or controlled substance, or any

residue left of the materials from which any narcotic

drug or psychotropic substance or controlled substance

has been manufactured,

for the possession of which he fails to account

satisfactorily."

8. It is not in dispute that the accused petitioner is the

registered owner of the vehicle i.e. Swift Dzire Car bearing

Registration No. RJ-26-CA-4005 in which co-accused persons

namely; Bhajan Lal Kumhar and Khushi Ram Jat were traveling

with the alleged contraband i.e. Doda Chura weighing 75.309 kg.,

which was recovered and seized. The said contraband is more

than the stipulated commercial quantity notified by the

Government.

9. On notice dated 11.06.2024 issued under section 133

of the Motor Vehicles Act to the accused petitioner by the SHO of

Police Station Baroni, the accused petitioner has given in writing

that on 31.12.2023 at about 2:00 AM his owned car bearing

registration number RJ-26-CA-4005 was being driven by his cousin

brother Bhajan Lal. It has not been stated by the accused

petitioner that co-accused person namely; Bhajan Lal has taken

the car on demand by misleading the accused petitioner. The

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accused petitioner in the memo of bail application has stated that

the car in question on demand was given to the relative of the

accused petitioner whereas Bhajan Lal is the family member of the

accused petitioner.

10. The Hon'ble Supreme Court in catena of judgments has

held that if there is a personal knowledge of existence of narcotic

substance in a property and the person has control over the same,

even if he is not physically present, he is deemed to be in

possession of the prohibited and contraband substance. Personal

knowledge as to the existence of the "chattel" i.e. the illegal

substance at a particular location or site, at a relevant time and

the intention based upon the knowledge, would constitute the

unique relationship and manifest possession. To give an example,

a person can conceal the prohibited narcotic substance in a

property and move out thereafter but he would still be said to be

in possession of the same. In the instant case, the applicant was

in close relation to the co-accused and had allowed his car to be

used by the co-accused at about 2AM in the night. The applicant

thus had personal knowledge of the fact that the co-accused had

possession of his car in the wee hours of the night and was using

it for illegal purposes.

11. In the case at hand, the applicant, had the requisite

degree of control when, even if the said narcotic substance was

not within his physical control at that moment, it was found to be

in his car in the possession of his cousin brother. The said person

because of necessary animus, thus, would be said to be in

possession of the concerned substance even if he was not, at the

moment, in physical control.

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12. It is to be noted that it is not in dispute that the

applicant is the owner of the vehicle in question, wherefrom

75.309 kgs. of 'Doda Chura' was seized and the vehicle was under

direct control of the accused petitioner. This fact clearly shows that

the applicant had personal knowledge of existence of the

contraband in his car on the particular date concerned and the

intention, based upon personal knowledge, would constitute a

unique relationship and manifest possession.

13. Owing to the fact, which is clinching and admitted to

the applicant, i.e., recovery of huge commercial quantity of 75.309

kgs. dodha chura, recovered from the car in question, owned by

the applicant; the applicant ought to have been in constant touch

with the driver of the car, who is also his paternal uncle's son.

14. At this stage, what is to be seen is whether there are

reasonable ground for believing that the accused is not guilty of

the offence(s) he is charged with and further whether he is likely

to commit an offence under the said Act or not, while on bail. A

finding of the absence of possession of the contraband on the

person of the applicant does not absolve it of the level of scrutiny

required under Section 37(1)(b)(ii) of the NDPS Act. In the instant

case, there is a grave possibility that if the applicant-accused is

released then he might run away and/or if there is any Untitled

document further amount of contraband at his residence, he

would appropriate that as well and he can thus not be absolved of

any scrutiny with respect to the offence.

15. The knowledge of possession of contraband has to be

ascertained from the facts and circumstances of the case. The

standard of conscious possession would be different in case of

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public transport as opposed to a private vehicle with few persons

known to one another. The word 'conscious' means awareness

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

intended. Possession in a given case need not be physical

possession but can be constructive.

16. Section 25 of the NDPS Act creates a vicarious liability

against the person who is the owner or is having control of the

property concerned and who knowingly permitted usage of such

property for the commission of a crime under the Act. The

applicant is in close relation with the co-accused and noted to had

been in regular contact with the co-accused. Thus, the applicant

ought to know about the doings of the co-accused and the fact

that he still lent his vehicle to them points towards him having

knowledge of the presence of contraband in his vehicle. Thus, it

has to be presumed that possession of contraband substance

recovered from the vehicle in question was conscious in nature

unless the said presumption is dislodged by the applicant.

17. In the present case, the applicant having installed the

possession of his vehicle to the co-accused for usage during the

night hours is indicative of the fact that he had 'knowledge' of the

purpose of usage of his vehicle, i.e., transportation of narcotics,

thus the sine qua non for the applicability of section 25 of the Act

is made out. The fact of handing over of the vehicle's possession

to the co-accused, which is also the offending vehicle, can by

reasonable inference, fasten the applicant with the knowledge of

its misuse by the driver-accused and others.

18. Once possession is established, the person who claims

that it was not a conscious possession has to establish it, because

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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. The standard of

conscious possession would be different in case of a public

transport vehicle with several persons as opposed to a private

vehicle with a few persons known to one another. It is an admitted

fact that the contraband substance seized is of commercial

quantity and role of the applicant-accused is quite clear inasmuch

as it appears that the present applicant is the registered owner of

the offending vehicle from where contraband 'Doda Chura" has

been seized. Having regard to the contraband substance seized as

aforesaid and provisions contained in Section 25, 35 and 37 of the

NDPS Act it is not a fit case to enlarge the applicant on bail.

Therefore, the applicant has no option but to obtain a verdict of

either his innocence or involvement in the offence by following due

procedure as laid down in law, since no exceptional circumstances

has been pointed out by the learned advocate for the applicant.

19. The Hon'ble Apex Court in the case of CBI Vs. Dhan

Singh, reported in (2003) 9 SCC 248, has observed in para

No.4,5 and 6 as under:-

"4. On both counts the High Court is factually not correct. The respondent had been charged not only for offence under Section 20(b), but also for offence under Section 25 of the Act in terms of the order of the Special Judge dated 27-9-2001 whereby the charge has been amended. The maximum punishment of the offence of which the

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respondent had been charged was 10 years and not five years.

5. Section 37 of the Act is mandatory. Before grant of bail the ingredients mentioned therein are required to be examined and bail granted only when the applicant fulfils the conditions stipulated in Section 37. Section 37 was not at all adverted to by the High Court. We may note that the bail granted to the respondent by the Special Judge on 23-4-2001 was cancelled on 29-6-2001 by the Special Judge. Another bail application was rejected on 28-8-2001. On 8-10-2001, the High Court rejected the petition seeking bail. In the said order reference was made to the stringent provisions of Section 37 of the Act. Despite this background and without adverting to Section 37 the High Court decided to grant bail and we say no more, except that some irrelevant matters have been noticed in the order, namely, the respondent having telephone and ration card etc.

6. Under the aforesaid circumstances, we allow the appeal and set aside the impugned judgment of the High Court dated 29-1-2002 and direct that the respondent shall be taken into custody forthwith."

As regards the orders referred by the counsel for the

accused petitioner are concerned, there is no disclosure of facts

and circumstances of the cases therein.

20. Having due regards to the contentions of the

counsel appearing for the accused petitioner as well as

learned Public Prosecutor, the provisions quoted in the

foregoing paras and the case law referred, this Court is not

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inclined to enlarge the accused petitioner on bail and

accordingly the bail application is dismissed.

21. However, in the interest of justice, it is expected

from the trial court to expedite the trial as early as possible.