IMPORTANT POINT
Bail – Keeping a person in custody for such a long time without any trial is not justified and violative of his fundamental right.

ORDER

This matter is taken up by virtual/physical mode.

2. Heard, learned counsel for the Petitioner and learned counsel for the State.

3. The Petitioner being in custody in connection with R. Udayagiri PS Case No. 18 of 2020 corresponding to G.R. Case No.19 of 2020, pending in the court of the learned District and Sessions Judge, Gajapati, Paralakhemundi, registered for the alleged commission of offence under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act and Section 473 of IPC, has filed this application under Section 439 of CrPC for his release on bail.

4. The allegation of the prosecution is that on 07.03.2020 at about 10 a.m. the S.I. of Police, R. Udayagiri Police Station Mr. Biswajeet Jena reported in the police station that he along with other police staff while returning to the police station after performing their patrolling duty, at about 5 a.m. they found one commander jeep without number plate was going towards R. Udayagiri in front of their bolero in high speed. On suspicion the police party chased the vehicle and detained the commander jeep on the RD road at Kusum Ghati near village Pariveta. One person was able to run away towards Jungle side while the other two persons were detained. During checking 14 Nos. of jerry bags were found from the jeep and as alleged that carried ganja. The driver disclosed his name as Pratap Majhi and other disclosed his name as Kishore Bira, the present petitioner. On enquiry, the driver told that he along with Junesh Lima of Partipanka collected the ganja at the jungle area of nearby villages and they were transporting the same from Anugur to Berhampur. Junesh Lima who was the owner of the contraband Ganja and inside the jeep fled from the spot seeing the police. On being asked Kishore Bira, the present petitioner confessed that he was assisting Janesh Lima and Pratap Majhi during packing and loading of the jerry bags. The driver also could not produce any license or documents towards the transportation possession of such contraband. After weighing, a total of 400kgs of ganja was seized. After observing all the formalities, the ganja was seized and the petitioner was arrested and forwarded to the learned court below.

5. Learned counsel for the Petitioner submits that the contraband was not seized out of the exclusive possession of the petitioner. The petitioner is a daily wage labourer and earns his livelihood through labour works. On the date of occurrence, the petitioner was hired as a labourer for loading and unloading of the bags. He was fully ignorant about the materials in the bags. So the contraband ganja seized from the vehicle cannot be said to have been seized from the conscious possession of the petitioner.

6. He further submits that the desertion by an owner of a cargo in a vehicle does not entitle possession for the driver and the others sitting inside the vehicle. There is no such law to automatically transfer possessory rights over the cargo deserted by the owner to the driver of the carriage or the workers hired to load and unload the same. Moreover, the petitioner has been languishing in jail for more than 18 months.

7. Learned counsel for the State vehemently opposes the bail prayer of the Petitioner.

8. Section 20(b) of the NDPS Act makes possession of contraband articles an offence. Section 20 appears in chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

9. Hon’ble Supreme Court in the case of Avtar Singh and others vs. State of Punjab, 2002 (7) SCC 419, held that:—

“The word “possession” no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not alway