GULASHAD Vs. STATE OF ODISHA

JUDGEMENT

(1.) This is an application U/S. 439 of Cr.P.C. by the Petitioner for grant of bail in connection with Machakund P.S. F.I.R. No. 36 dtd. 19/4/2021 corresponding to Special T.R. Case No. 40 of 2021 pending in the Court of learned Addl. Sessions Judge-cum-Special Judge, Koraput for commission of offence punishable U/S. 20(b)(ii)(C) of NDPS Act.

(2.) The broad allegations as appearing against the petitioner and others are that on 19/4/2021 at 10. 30 A.M. the informant Police S.I. and staff while performing vehicle verification at Kangrapada bridge, noticed one white colour Swift Dzire car coming towards Lamtaput side from Machkund side and they, accordingly, stopped the car and detained the four occupants of the said car including the driver. On suspicion, they verified the car and found three numbers of tensil jery bags loaded in the dicky of the car with no registration number plate and out of such jery bags, acute smell of ganja was emitting. On being asked, the four occupants detained by the police disclosed their names as Ajay Pratap Kori, Hari Sankar Singh, Gulashad(petitioner) and Rahul Kumar Verma. After procuring weighman and two independent witnesses as well as successfully requisitioning the Executive Magistrate-cum-Tahasildar, the informant-police officer gave notice to the above named accused persons in writing U/S. 50 of NDPS Act and weighed the contents of recovered three numbers of jari bags which were found to be flowering and fruiting tops of cannabis plant (Contraband Ganja) in presence of witnesses and Executive Magistrate and it came to 102 Kgs and 400 grams of Contraband Ganja without jery bags. The informant police officer thereupon, accordingly, seized the aforeaid quantity of Contraband Ganja in presence of witnesses. In the course of search of the said Swift Dzire car, one registration certificate bearing No. UP70CX5086 standing in the name of Nishar Ahmad of Pratapgarh(UP) and one pollution certificate were also recovered. On personal search of each of the four occupants, different articles such as mobile phones, Aadhar cards etc. were found and seized. On the aforesaid fact, the S.I. of Police lodged a FIR before the IIC, Machkund Police Station who registered Machkund Police Station FIR No. 36 dtd. 19/4/2021 which was investigated into and on completion of investigation, charge sheet was filed against the accused persons including the present petitioner for commission of offence U/S. 20(b)(ii)(C) of NDPS Act.

(3.) In the course of hearing of bail application, Mr.Shyam Manohar, learned counsel for the petitioner appearing virtually has submitted that the petitioner is neither the owner nor the driver of the car from which Contraband Ganja was recovered and even in the course of investigation, no materials has been collected to prima facie indicate that the petitioner was dealing with the Contraband Ganja either as a seller or purchaser nor was any Contraband Ganja recovered from the personal search of the petitioner and therefore, by no stretch of imagination, conscious possession of Contraband Ganja can be attributed to the petitioner. It is further submitted by Mr. Manohar that the possession of Contraband Ganja would have been attributed to the petitioner, had he been found alone in the vehicle and when the personal search of the petitioner does not lead to seizure of any Contraband Ganja, he thereby can be safely presumed to be innocent occupant of the vehicle. Additionally, learned counsel for the petitioner has also submitted that apparently there was neither any compliance of Sec. 42 nor of Sec. 50 of the NDPS Act and such non-compliance would strike at the very root of the case and therefore, the petitioner is entitled to bail on the very ground of non-compliance of Sec. 42 and 50 of NDPS Act, compliances of which are mandatory in nature. On summing up his argument, learned counsel for the petitioner has prayed to allow the bail application of the petitioner by relying upon the following decisions (i) Darshan Singh Vrs. State of Haryana; (2016) 14 SCC 358, (ii) Amiri Ali Ligaga Vrs. The State; 1995 SCC Online Delhi 895, (iii) Sanjeev and another Vrs. State of Himachal Pradesh; 2022 Live Law (SC) 267, (iv) SK. Raju @ Abdul Haque @ Jagga Vrs, State of West Bengal; (2018) 9 SCC 708, (v) Rajender Singh Vrs. State of Haryana in Criminal Appeal No. 1051 of 2009 disposed of on 8/8/2011, (vi) State of Punjab Vrs. Balbir Singh; AIR 1994 SC 1872 and (vii) Sarija Banu(A) Janarthani and others Vrs. State through Inspector of Police; (2004) 12 SCC 266.