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2015 DIGILAW 653 (GUJ)

Sakir Rahimbhai Shaikh v. State of Gujarat

2015-06-30

Z.K.SAIYED

body2015
JUDGMENT Z.K. Saiyed, J. 1. Rule. Mr. Kodekar, learned APP waives service of Rule on behalf of the respondent - State. 2. This application has been preferred under Section 439 of the Code of Criminal Procedure, 1973 in connection with the offence being CR No. II - 3319 of 2014 registered with Ellis Bridge Police Station, Ahmedabad City, for the offences u/s.8(c), 21 read with Section 29 of the Narcotic and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act). 3. It is alleged in the complaint lodged against the applicant, who is accused No. 2, that on prior information, a vigil was kept by the police and when on 16.11.2014, one red colour Activa bearing registration No. GJ-1-EQ-9234 driven by the accused No. 1 Shahnawaz alias Shanu Rahemanbhai Pathan was intercepted by police. At the time, the present applicant was the pillion rider and one bag was found handing by the hook of the said vehicle in between the legs of the accused No. 1. When the bag was searched by the police, cannabis (Charas) was found at Ellis Bridge, Nr. the corner of Municipal Saraswati Mandir School No. 16, Dr. Hardikar Chowk, Ahmedabad. It is alleged that after following the necessary procedure, the said cannabis was seized and both the accused including present applicant were arrested and offence as alleged was registered. The charge-sheet was filed after completion of investigation. 4. Learned advocate Mr. Agrawal appearing for the applicant submitted that the applicant is an innocent person and he is not connected with alleged commission of offence. He further submitted that the applicant had no knowledge about the existence of any contraband cannabis in the hanging bag on the two wheeler vehicle. He also submitted that the applicant is a pillion rider and the vehicle Activa was driven by the accused No. 1 and said beg was between the legs of the accused No. 1. He also submitted that the present applicant is wrongly implicated in the alleged offence. He also submitted that the recovered quantity is shown as 950 Grms., which is not commercial quantity. He therefore, submitted that the notification specifying small quantity and commercial quantity in the Schedule as prescribed in the Act as 1 Kg. at Sr. He also submitted that the present applicant is wrongly implicated in the alleged offence. He also submitted that the recovered quantity is shown as 950 Grms., which is not commercial quantity. He therefore, submitted that the notification specifying small quantity and commercial quantity in the Schedule as prescribed in the Act as 1 Kg. at Sr. No. 23 and therefore, as per his submission, the quantity of contraband possessed by the applicant is not covered within the purview of the provisions of the N.D.P.S. Act and it is below than the commercial quantity. He submitted that in view of the Schedule as prescribed under the Act, looking to said quantity, the provisions of Section 37 of the N.D.P.S. Act is not applicable to the applicant. He also submitted that as per the Panchnama and complaint, the applicant is a pillion rider and the alleged contraband article was recovered from the accused No. 1. He further submitted that even the provisions of Sections 19, 24 and 27-A for the offence involving commercial quantity, are not applicable to the case of the applicant. He also submitted that it is the case of the prosecution also that no contraband was found from the conscious possession of the present applicant. He also submitted that the applicant is ready and willing to abide by any suitable conditions as may be imposed by the Court. He therefore, prayed to grant regular bail to the applicant. 5. Per contra, learned APP Mr. Kodekar for the respondent strongly opposed the bail application of the applicant. He submitted that looking to the seriousness of the offence, in which the applicant is involved, the applicant is not required to be enlarged on bail. He further submitted that for the small and commercial quantity, the amendment in this regard is passed. He also submitted that no person shall manufacture, possess, transport, import inter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substance. He drew the attention of this Court to the provisions of Section 64 of the N.D.P.S. Act and submitted that if the small quantity is found then it can be presumed that same is for addiction and consumption for the person himself. He also emphasized upon the provisions of Section 64A of the N.D.P.S. Act. He submitted that the contraband article cannabis is recovered of 954 Grms. which is lesser to the extent of 46 Grms. He also emphasized upon the provisions of Section 64A of the N.D.P.S. Act. He submitted that the contraband article cannabis is recovered of 954 Grms. which is lesser to the extent of 46 Grms. of 1 Kg. as prescribed under the N.D.P.S. Act, which is short of the commercial quantity. He submitted that this recovered quantity is near to the commercial quantity. He submitted that the drug traffickers have sufficient knowledge and understanding that if the person should be trapped by any authority with possession of small quantity of contraband, he can be easily bailed out and with that knowledge and intention, now a days, the drug traffickers are carrying such contraband article just lesser than 25 Grms. from the prescribed quantity and always they are trying to get remedy under the guise of small quantity less than commercial quantity. He further submitted that it is the duty of the accused to disclose that the article, which is recovered in lesser quantity than commercial, is for sale or for his personal consumption. He further submitted that the present applicant from Mehsana District, was found with the original accused No. 1 and therefore, presumption is required to be drawn under the provisions of Section 54 of the N.D.P.S. act. He therefore, submitted that considering the submissions as canvassed by him, the applicant is not required to be enlarged on bail. 6. Heard both the learned advocates, perused the complaint, panchnama and recovery made by the trapping officer and other papers and the authority has followed the mandatory provisions prescribed under the N.D.P.S. Act. It is pertinent to note that the applicant is involved in the offence under the provisions of N.D.P.S. Act and recovery of the cannabis is of 954 Grms. The applicant is shown as pillion rider on the Activa vehicle, which was driven by the accused No. 1, from whom a bag between legs of the accused No. 1, containing 954 Grms. cannabis was found. As per the submissions of the learned advocate Mr. Agrawal for the applicant, the recovered quantity which was found to be lesser than prescribed under the Act. Here the ingredients of Section 27 of the N.D.P.S. Act is required to be taken into consideration. Under Section 27 of the Act, the following ingredients should be fulfilled. cannabis was found. As per the submissions of the learned advocate Mr. Agrawal for the applicant, the recovered quantity which was found to be lesser than prescribed under the Act. Here the ingredients of Section 27 of the N.D.P.S. Act is required to be taken into consideration. Under Section 27 of the Act, the following ingredients should be fulfilled. "(a) The person has been found in possession of any narcotic drug or psychotropic substance in 'small quantity'; (b) Such possession should be in contravention of any provision of the Act or any rule of order made or permit issued thereunder; and (c) The said possession of any narcotic drug or psychotropic, substance was intended for his personal consumption and not for sale or distribution;" 7. In view of the provisions of aforesaid Section 27 of the Act and more particularly, ingredients (c) of the same is concerned, the person who is having drug or psychotropic substance has to disclose that the said contraband article is for his personal consumption and is not for sale or distribution. Even if a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution lies on such person. Even the person found with small quantity for his personal use, the person is liable to punished as provided under Section 27 of the N.D.P.S. Act. 8. The provision under Section 27 of the N.D.P.S. Act is very clear and as per explanation 2 of the said Section, the possession of the lesser quantity than the commercial quantity should be disclosed by the person. Here in this case, the applicant has not disclosed the purpose of keeping cannabis with him. Upon inquiry, it is found that the applicant is not holding licence or permission for keeping such cannabis in his possession. 9. In view of the above position and looking to the submissions canvassed by learned advocate Mr. Agrawal for the applicant, this Court is not satisfied for granting of the bail application of the applicant. There is reasonable ground for believing that the applicant has committed the offence under the N.D.P.S. Act and he is likely to commit offence, if he is enlarged on bail. Agrawal for the applicant, this Court is not satisfied for granting of the bail application of the applicant. There is reasonable ground for believing that the applicant has committed the offence under the N.D.P.S. Act and he is likely to commit offence, if he is enlarged on bail. It is pertinent to note that the organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into the country and illegal trafficking in such drugs and substances have lead to drug addiction among a sizable section of the public, particularly, the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. 10. Prima facie it appears that the accused No. 1 was driving two wheeler Activa and it was in his knowledge that the contraband article of cannabis was carrying by him along with the accused No. 2 i.e. present applicant, shown as pillion rider on the said vehicle and therefore, the ingredients of provisions of Section 27 of the N.D.P.S. Act, are attracted to the present applicant. 11. Considering the serious nature and gravity of the offence and the manner in which the offence is said to have been committed and punishment prescribed for such serious offence, this Court is not inclined to enlarge the applicant on bail. Accordingly, this application fails and is hereby dismissed. Rule is discharged.