SHAJI THOMAS Vs. STATE

JUDGEMENT

(1.) I have heard the Learned Counsel for the Petitioners & the Learned Counsel for the State. The Petitioners in this case have been indicted in C.T. Case No. 172 of 2014, arising out of Padmapur P.S. Case No. 49 of 2014, pending in the court of the Learned Sessions Judge -cum -Special Judge, Rayagada & the offence alleged against them is punishable under Section 20(b)(ii)(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act").

(2.) THE prosecution allegation against the Petitioners is that on 14.10.2014 at about 4.30 a.m., the S.I. of Police, Kenduguda Police Outpost under Padampur Police Station along with other Police staff while conducting patrol duty, intercepted a vehicle, i.e., a Tata Sumo bearing registration No. OR 07D -8886 at Mandiguda Chowk & on search, they found two HDPE bags, each containing ten Kgs. of 'Ganja' in the dickey of the said vehicle. It is alleged that the present Petitioners were there in the said vehicle including owner -cum -driver - Dama Majhi, but he could manage to escape from the spot. After conducting all formalities, police seized the aforesaid 'Ganja', apprehended the Petitioners & another & forwarded them to the Court as they alleged to have committed offence under Section 20(b)(ii)(C) of the N.D.P.S. Act. The prayer for bail of the Petitioners having been rejected by the Learned Special Judge -cum -Sessions Judge, Rayagada, this petition under Section 439 Cr.P.C. has been filed for their release on bail. It has been submitted by the Learned Counsel for the Petitioners that since in this case the owner himself was driving the vehicle & the Petitioners were the bona fide passengers in the said vehicle, they cannot be attributed with the conscious possession of 'Ganja' in the vehicle which is a sine -qua -non to fasten the criminal liability under the Act. Therefore, the prayer for bail of the Petitioners deserves sympathetic consideration, more particularly when they have no chance of abscondence or tampering with the prosecution evidence, if released on bail.

(3.) FROM the mandate of Section 37(2) of the N.D.P.S. Act, it appears that the limitation provided to grant bail for the offences involving commercial quantity is in addition to the limitations for grant of bail provided under the Code of Criminal Procedure, 1973 or any other law for the time being in force on grant of bail. The Hon'ble Apex Court in the case of Narcotics Control Bureau vrs. Dilip Pralhad Namade, reported in : (2004) 3 S.C.C. 619, have taken note of the earlier decision of the Hon'ble Apex Court in the case of Union of India vrs. Thamisharasi & held as follows;