The main legal point established in the judgment is the requirement for reasonable grounds to believe the guilt of the accused under Section 37 of the NDPS Act, especially in cases involving absence of conscious possession and prolonged custody.

JUDGMENT :

Anish Dayal, J.

By this application, the petitioner seeks regular bail in FIR No. 142/2021 PS Kalyanpuri under Sections 21/29 of the NDPS Act. The petitioner has been in judicial custody since 17th April, 2021.

2. As per the case of the prosecution, on 16th April, 2021 around 9.30 pm on the basis of secret information the Office of the Special Staff got approval to conduct a raid and reached Block-20, Kalyanpuri at about 10 : 35 pm. At 10 : 45 pm, a TSR was spotted outside the street and two boys came out of the TSR who were identified, by the secret informer, as the petitioner and Nadeem. Petitioner and Nadeem reached Rais' house and knocked on the door. The door was opened by Rais who was identified by the secret informer. Nadeem handed over a polythene bag to Rais who put the packet in the right pocket of his cargo pants and started talking to each other. ASI Pramod along with the raiding party apprehended all the three accused, namely, Rais, Nadeem and the petitioner and notice under Section 50 of the NDPS Act was served on them. At 11.10 pm, the ACP reached the spot and a personal search of all three accused was conducted. A polythene packet was recovered from the cargo pants worn by Rais out of which a brown colour powder was found which was tested with Field Testing Kit and the result was confirmed as “smack”. On weighing by the weighing machine, its net weight appeared to be 300 gm which was a commercial quantity. Two samples were taken and seized through the seizure memo. A search of Nadeem and the petitioner was conducted but nothing was recovered. During investigation, it was apparently revealed through the disclosures by the accused that petitioner had joined from Anand Vihar Bus Stand.

3. The petitioner has contended that since there is no recovery from the petitioner and the recovery has been from Rais, the petitioner cannot be implicated for conscious possession. Further, no independent witness had joined and even the secret informant has not been examined.

4. The learned counsel for the petitioner, in support of the petition, contended that firstly, there was absence of conscious possession; secondly, the petitioner was a mere companion of the main accused and cannot be held to be an accomplice; thirdly, there was no mens rea which could be established; fourthly, the petitioner has already been in custody for a prolonged period of time and his fundamental rights under Article 21 were violated.

5. The essential thrust of the petitioner's contention is that the petitioner merely accompanied Nadeem who is alleged to have handed over the packet of smack to Rais and even as per the investigation, albeit through a disclosure (which is not admissible), the petitioner had joined Nadeem at Anand Vihar Bus Stand. Reliance is placed on Union of India v. State of Gujarat, 2022 SCC OnLine Guj 1533 where the Gujarat High Court based on a similar fact differentiates between the role of a mere informal companion to that of an incriminating role of an accomplice under the NDPS Act and acquits the accused who was merely the wife of the other co-accused. Further reliance is placed on the judgment of this Court in Dilbagh Singh v. D.R.I., 2009 SCC OnLine Del 1424 where the petitioner/accused was the driver and merely accompanied the other co-accused and was released on bail. It was held that no prima facie case could be made out against such an accused, let alone bring a case of conscious possession. The confessional statement under Section 67 was not substantial piece of evidence and the accused did not even come into physical contact with the contraband. It is contended that in this matter, the petitioner also never came in physical contact with the contraband and was merely standing alongside him when the arrest was made. Reliance is placed on the decision of this Court in Kamaljeet Singh v. H.K. Pandey, 2005 (3) JCC 220 where it has been held adverting to Section 35 of the NDPS Act that the accused was not in conscious po