Tripura High Court

Rabindra Debnath For And On Behalf vs The State Of Tripura on 5 March, 2021

                             HIGH COURT OF TRIPURA
                                   AGARTALA

                               B.A No. 13 of 2021
      Rabindra Debnath for and on behalf
      of accused Uttam Debnath
                                                         ............Petitioner(s)
                                   Versus
      The State of Tripura
                                                        ............Respondent(s)

      For Petitioner (s)       :   Mr. Somik Deb, Sr. Adv.
                                   Mr. Raju Datta, Adv.
                                   Mr. Abir Baran, Adv.

      For Respondent(s)        :   Mr. R. Datta, P.P.


                HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                                     Order

05/03/2021

[1]               This is an application under Section 439 of the Code of

Criminal Procedure, 1973 (Cr.P.C in short) for granting bail to the

petitioner who is an FIR named accused in Melaghar PS case No. 2020

MLG 048 under Sections 22(c), 25 and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (NDPS Act in short).

[2]               Facts

of the case can be summarized as follows:

Inspector Paloram Das, officer in charge of Melaghar

police station lodged a suo motu FIR on 24.10.2020 at Melaghat police

station alleging that pursuant to a secret information he along with

other police staff conducted raid in a bus carrying registration No. TR 03

1399 which was coming to Agartala from Sonamura with passengers

inside it. The search was allegedly carried out at Melaghar AOC point

and during search 55gm brown sugar in a box was recovered and seized

from the possession of the petitioner and 550 Nos. of Yaba tablets in 4

(four) packets were seized from the possession of co-accused Alil Miah.

After the said search and recovery both the accused were arrested and

brought to the police station.

[3] Based on his FIR, Melaghar PS case No. 2020 MLG 048

under Sections 22(c), 25 and 29 of the NDPS Act was registered and

the investigation was taken up. Both the accused are in custody since

their arrest on 24.10.2020.

[4] Similar application was filed by the present petitioner

seeking release on bail which was rejected by this court vide order

dated 29.01.2021 after hearing learned counsel of the parties. The

accused petitioner has again approached this court by filing the present

petition under section 439 Cr.P.C for granting bail to him.

[5] Heard Mr. Somik Deb, learned senior advocate

appearing for the petitioner who is assisted by Mr. Raju Datta and Mr.

Abir Baran, learned advocates. Mr. R. Datta, learned P.P is representing

the State respondent.

[6] Mr. Deb, learned senior advocate has emphasized on

the ground of serious illness of the accused petitioner. It is also

contended by Mr. Deb, learned senior advocate that the child and the

wife of the accused are also seriously ill at home and as a result of the

prolonged detention of the accused petitioner in custody for about 130

days, all the family members have been suffering from great hardship.

In this regard, in paragraph 7 of the petition, it has been stated as

follows:

"7. That the petitioner humbly states that the accused is seriously ill and as such he has been shifted from Sonamura Jail to Kendriya Sansodhangarh, Bishalgarh as per the order of the Ld. Trial Court for better medical treatment of the accused person. The petitioner further states that the child and the wife of the accused person are seriously ill and there is no male member in the family except the accused person to take care of them and the family members are suffering from great hardship. The petitioner also states that without the assistance of accused person the family members of the accused are unable to collect the amount/medical fees required for medical treatment of his ailing mother and wife. Copies of the medical prescription are annexed hereto and those are marked as Annexure-5."

[7] Besides, it is contended by Mr. Deb, learned counsel

that the Special Judge (Sessions Judge), Sepahijala Judicial District,

Sonamura while considering the application of the petitioner under

Section 439 Cr.P.C in B.A No. 70 of 2020 observed vide order dated

15.12.2020 that the contraband seized from the possession of the

petitioner was below commercial quantity. Observation of the learned

Sessions Judge in this regard is as follows:

"On perusal of the same it appears that there is sufficient incriminating materials as against the accused petitioner Uttam Debnath so far collected by I/O regarding his involvement in carrying about 55 grams of brown sugar in his possession without valid document which is a below commercial quantity and as such this Court finds no scope to believe that the accused petitioner Uttam Debnath is innocent and not involved in the alleged offence."

[8] Mr. Deb, learned senior advocate further submits that

since the contraband allegedly recovered and seized from the

possession of the petitioner is less than commercial quantity, he has

been entitled to default bail in terms of Section 36A (4), NDPS Act read

with Section 167(2) Cr.P.C. Moreover, it has been contended by Mr.

Deb, learned senior advocate that it is settled proposition of law that a

person cannot be booked under the NDPS Act for possession of

contraband unless it is shown that he was in physical possession of the

same with animus. According to Mr. Deb, learned senior advocate

apparently, the contraband which was allegedly seized from the

possession of the petitioner was less than commercial quantity. He

cannot be said to have possessed a commercial quantity taking into

account the contraband which was seized from the possession of the

other accused without proof of actual physical possession of the same

against the petitioner. This apart the prosecution could not also adduce

any material for the court to presume that petitioner had any

knowledge or animus that the other accused who was travelling in the

same bus with him was also possessing contraband. In support of his

contention Mr. Deb, learned senior advocate has relied on the following

decisions of the Apex Court:

1. Inder Sain Vs. State of Punjab reported in (1973) 2

SCC 372.

2. Sanjay Dutt Vs. State through C.B.I, Bombay (II)

reported in (1994) 5 SCC 410.

3. Gurmail Singh Vs. State of Punjab reported in

(2002) 3 SCC 748.

In the case of Inder Sain (Supra) the appellant was

charged under section 9a of the Opium Act and he was convicted and

sentenced for the offence. When the matter came up before the Apex

Court in appeal the court observed as under:

"20. It does not follow from this that the word 'possess' in s. 9 does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word 'possess' connotes, in the context of s. 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge an offence. A conviction under s. 9 (a) would involve some stigma and it is only pro- per then to presume that the

legislature intended that possession must be conscious possession."

In the case of Sanjay Dutt (Supra) the Apex Court

while considering the ingredients of "possession" within the meaning of

section 5 of TADA Act observed as under:

"19. The meaning of the first ingredient of "possession' of any such arms etc. is not disputed. Even though the word 'possession' is not preceded by any adjective like 'knowingly', yet it is common ground that in the context the word 'possession' must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood. (See Warner v. Metropolitan Police Commissioner, (1969) 2 A.C. 256 and Sambasivam v. Public Prosecutor, Federation of Malaya.

The Apex Court reiterated the same in the case of

Gurmail Singh (Supra) and observed as under:

"2...................The expression "possession" in Section 5 has been stated to mean in Sanjay Dutt a conscious possession introducing thereby involvement of a mental element i.e. conscious possession and not mere custody without awareness of the nature of

such possession and as regards the meaning of the word "unauthorized" in the context, means and implies without any authority of law."

Mr. Deb, learned senior advocate therefore, argued

that no material has been placed on record by the prosecution

wherefrom this court can presume that the accused was in conscious

possession of contraband of the commercial quantity. According to Mr.

Deb, learned senior advocate since the contraband allegedly seized

from the physical possession of the petitioner is less than commercial

quantity and he has already suffered detention for about 130 days in

custody and the investigation is yet to be completed he has become

entitled to default bail.

[9] Appearing for the State, Mr. R. Datta, learned P.P

vehemently opposes the bail application. According to Mr. Datta,

learned P.P similar application of the accused was rejected by this court

by order dated 29.01.2021 and there is no change in the circumstances

to consider similar application filed on behalf of the accused. It is

argued by Mr. Datta, learned P.P that the case diary indicates that the

accused has also been charge sheeted in Kakraban PS Case No. 106 of

2019 under Section 22(b), 25 and 29 of the NDPS Act. Therefore, in

view of his past record, he does not deserve bail at this stage. Apart

from it Mr. Datta, learned P.P has also argued that when raid was

conducted in the bus in which the accused was travelling with the other

accused of the case, they tried to flee away together when police raided

the bus from which the animus of the petitioner about the possession of

contraand by the other accused stands proved. Mr. Datta, learned P.P

argues that even though the accused was not in actual physical

possession of the commercial quantity of the contraband he is not

entitled to default bail. Since, The two accused together were in

possession of commercial quantity and the petitioner was aware about

the possession of contraband by the other accused. In support of his

contention Mr. Datta, learned P.P has relied on the decision of the Apex

Court in Mohan Lal Vs. State of Rajasthan reported in (2015) 6 SCC

222 wherein the Apex Court vide paragraph 22 of the judgment has

held as follows:

"22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the appellant- accused was in possession of the prohibited or

contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such the offence under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the coming into force of the NDPS Act and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the appellant-accused cannot take the plea that he had committed an offence under Section 9 of the Opium Act and not under Section 18 of the NDPS Act.

[10] On the same issue Mr. Datta, learned P.P has

also relied on the following decisions:

1. Madan lal & Anr. Vs. State of H.P reported in

(2003) 7 SCC 465.

2. Kulwinder Singh & Anr. Vs. State of Punjab

reported in (2015) 6 SCC 674.

[11] In Madan Lal (Supra) the Apex Court while

examining the expression "possession' has held 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 and Ors. (AIR 1980 SC 52), 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. (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 case in question, while the person whom physical possession is given holds it subject to that power or control.

25. The word 'possession' means the legal right to possession (See Health v. Drown (1972) 2 All ER

561. In an interesting case it was observed that where a person keeps his fire arm 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.

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 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."

[12] The factum of conscious possession was further

explained by the Apex Court in the case of Kulwinder Singh (supra)

wherein the Apex Court held as under:

"17. In this context reference to the decision in Madan Lal V. State of H.P (2003) 7 SCC 465 would be fruitful wherein it has been held thus: (SCC p.472, paras 22-25)

"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 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. (1972) 2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.

25. The word 'possession' means the legal right to possession (See Health v. Drown (1972) 2 All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm 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."

It is finally argued by Mr. Datta, learned P.P that

conscious possession of commercial quantity having been proved

against him, the petitioner does not deserve bail.

[13] I have gone through the materials placed before this

court including the case diary. I have also considered the submissions

of the learned counsel representing the parties.

[14] It is true that the petitioner is in custody since

24.10.2020 and the investigation is not likely to be completed very

soon. In support of the contention of the petitioner about the illness of

his wife and son, medical certificates of Udai Debnath, son of the

petitioner who is 7 years' old and his wife Smt. Anjana Debnath have

been filed. Keeping in view the period of detention already undergone