Seizure of contraband in transit under Section 43 of NDPS Act does not require compliance with Section 42; the word "or" in Section 43 is disjunctive, and commercial quantity attracts Section 37 embargo.

ORDER :

MRIDUL KUMAR KALITA, J.

1. Heard Mr. H. R. A. Choudhury, learned senior counsel assisted by Mr. M. A. Choudhury, learned counsel for the petitioner. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor appearing for the State of Assam.

2. This bail application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Kumarjit Deb, in connection with Karimganj P.S. Case No. 19/2024, under Section 22(c)/25/29 of the NDPS Act, 1985 praying for his bail.

3. The gist of accusation in this case is that, on 06.01.2024, one Krishnamoni Kolita, WSI of Karimganj Police Station had lodged an FIR before the Officer-in-charge of Karimganj Police Station, inter alia, alleging that on 06.01.2024, at about 5:30 PM, an information was received through reliable sources to the Superintendent of Police of Karimganj that one four wheeler red colour Wagan-R car bearing Registration No. AS-11-D-8655 coming from Badarpur to Patharkhandi through National Highway No. 37 was carrying huge quantity of suspected drugs hidden inside the said vehicle. Accordingly, a GD entry bearing GD Entry No. 152 dated 06.01.2024 was made at Karimganj Police Station. Thereafter, a police team was constituted and a naka checking was arranged near Karimganj bypass road near Sherwali Dhaba on the National Highway No. 37. During naka checking, the vehicle (Wagan-R), bearing Registration No. AS-11-D-8655, which was coming from Badarpur towards Patharkhandi via Karimganj bypass road, was intercepted. The driver of the vehicle along with another occupant was found inside the said vehicle. On enquiry, the driver was identified as Kumarjit Deb (present petitioner) and the other occupant of the vehicle was identified as Dhiman Bhattacharjee. During search of the said vehicle, one big brown packet inside which small packets were found concealed on the back side of the driver's seat and the rear seat, a bag was found to containing total 9,000 numbers of Yabba tablets weighing about 992 grams were recovered from the said vehicle. During investigation, the sample of the seized contraband, which was examined at the Regional Forensic Science Laboratory, Silchar, gave positive test for Methamphetamine. Ultimately, on conclusion of the investigation, finding sufficient materials against the present petitioner and the co-accused Dhiman Bhattacharjee, the charge-sheet was laid against both of them under section 22(c)/25/29 of the NDPS Act, 1985.

4. The learned senior counsel for the petitioner has submitted that the petitioner has been falsely implicated in the instant case and he is innocent and not involved in the offence alleged in the charge-sheet. It is submitted by the learned senior counsel that the petitioner is the employed driver of one Hari Pada Saha, who is the owner of the Wagon-R car which was seized in connection with this case. It is submitted by the learned counsel for the petitioner that on the date of alleged incident, the present petitioner, who is the driver, was asked by the owner of the vehicle to drop his friend, namely, Dhiman Bhattacharjee, from Silchar to Patharkandi. Accordingly, the petitioner drove the car and in the midway, the Police stopped the car and made the search and at that time he came out of the car.

5. It is also submitted that during search by the Police, the contraband was found in the duffel bag belonging to the occupant Dhiman Bhattacharjee. The petitioner, who was merely a driver, was having no idea as to what was carried by the occupant of the vehicle, namely, Dhiman Bhattacharjee. It is submitted that the petitioner was unaware of what was being carried by the said Dhiman Bhattacharjee in his duffel bag and, therefore, he was not in conscious possession of the contraband which was recovered from the car which the petitioner was driving.

6. Learned senior counsel for the petitioner has also submitted that the seizure list which has been annexed along with the bail application as Annexur