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2024 DIGILAW 23 (UTT)

Rajeev v. State of Uttarakhand

2024-01-05

RAVINDRA MAITHANI

body2024
JUDGMENT : Ravindra Maithani, J. Applicant Rajeev is in judicial custody in FIR No.57 of 2023, under Sections 8/22/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Pulbhatta, District Udham Singh Nagar. He has sought his release on bail. 2. Heard learned counsel for the parties and perused the record. 3. According to the FIR, on 18.03.2023, police was on patrolling duty. At 9:45 PM, they spotted a three-wheeler. The police signalled the three wheeler to stop, but the driver of the vehicle tried to turn the three wheeler and moved it in another direction, but he could not do so. He was apprehended. From the dickey of the three wheeler, narcotic substances in commercial quantity were recovered. 4. Learned counsel for the applicant would submit that the applicant had no knowledge that there was any contraband in his vehicle. It is a tempo. Many people travel in it. The applicant has no criminal history; there is no evidence of conscious possession. Therefore, it is a case of bail. 5. On the other hand, learned State Counsel would submit that narcotic substances in commercial quantity were recovered from the possession of the applicant. Applicant, having sensed fear, tried to escape from the place, when the police had signalled him to stop. Therefore, it is a case of presumption of Section 35 of the Act. 6. It is a stage of bail. Much of the discussion is not expected of. Arguments are being appreciated with the caveat that any observation made in this order shall have no bearing at any subsequent stage of the trial, or in any other proceeding. 7. The terms “possession” and “conscious possession” both are related, but have different connotation. A person having possession of bags in all cases may not be presumed to know as to what contains in those bags. With regard to recovery of narcotic substances in private vehicle and public transport vehicle, the rules are different. Insofar as the private vehicle is concerned, any stranger cannot board the vehicle, therefore, the occupants are presumed to be in conscious possession of anything, which is found in the private vehicle. Whereas, in the case of public transport, such assumption cannot be made with regard to the conscious possession. After the factum of recovery, possession is established. Insofar as the private vehicle is concerned, any stranger cannot board the vehicle, therefore, the occupants are presumed to be in conscious possession of anything, which is found in the private vehicle. Whereas, in the case of public transport, such assumption cannot be made with regard to the conscious possession. After the factum of recovery, possession is established. There may be a presumption under Section 35 of the Act, which is rebuttable, and which can very well be rebutted by the driver or other occupants of the public transport vehicle that they were not in conscious possession of the articles, so recovered from the vehicle. 8. In the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, (2000) 2 SCC 513 , the Hon’ble Supreme Court has discussed these aspects while interpreting Section 35 of the Act. In Paragraphs 20 and 21, the Hon’ble Supreme Court observed as follows:- “20. In the above context, learned counsel for the State sought to rely on the legal presumption envisaged in Section 35 of the Act. In fact the Division Bench of the High Court also mainly rested on that legal premise. Section 35 reads thus: “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.” 21. No doubt, when the appellant admitted that the narcotic drug was recovered from the gunny bags stacked in the autorickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in sub-section (2) as “beyond a reasonable doubt”. No doubt, when the appellant admitted that the narcotic drug was recovered from the gunny bags stacked in the autorickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in sub-section (2) as “beyond a reasonable doubt”. If the court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the court entertains strong doubt regarding the accused's awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt undispelled. Even so, it is for the accused to dispel any doubt in that regard.” 9. The applicant is the driver of the vehicle, which was intercepted at 9:45 late in the evening. According to the FIR, narcotic substances in commercial quantity were recovered from the possession of the applicant. The FIR states that having been signalled to stop, the applicant did not stop, instead he tried to run away. Does it mean that the applicant was in conscious possession of the narcotic substances? This and many more questions would find answer during trial. 10. Having considered, this Court does not see any reason, which may entitle the applicant to bail. Accordingly, the bail application deserves to be rejected. 11. The bail application is rejected.