The burden of proving the purpose of possession of a narcotic drug for personal consumption and the duty to disclose the possession of a quantity lesser than the commercial quantity specified in the N.D.P.S. Act.

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. 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 c