Possession of narcotics exceeding commercial quantity creates a presumption of guilt under the NDPS Act, placing the burden of proof on the accused to establish innocence.

JUDGMENT :

GANESH RAM MEENA, J.

1. This bail application has been filed by the accused petitioner under section 439 CrPC in connection with FIR No. 0519/2023 registered at Police Station Vishwakarma, District Jaipur (West) for the offence punishable under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act of 1985’).

2. The FIR No. 0519/2023 was registered on 11.10.2023 with the facts that the police personnel received an information from a special informer that there is a person in Flat No. 208 on the second floor of the building- Gokulam who is likely to have the illegal drugs. After complying with the provisions of section 42(2) of the Act of 1985 and considering the fact that in seeking warrant some time may take place, whereas immediate action is necessary, the SHO, Police Station Vishwakarma, Jaipur along-with other Constables having necessary equipment including electronic weighing scale left for the building-Gokulam. When nobody agreed to be the independent witness of search and seizure, two police personnel were made the witnesses and their consent was sought. On entering in Flat No. 208 on the second floor, a person was found sitting in front on a mattress with the black bag and on seeing the police in uniform he got up and tried to run away. He was surrounded and caught with the help of the members of the team and he was instructed to remain sit there. When his name and address was asked, he stated his name as Hanif Khan s/o Haji Muneer Ahmad (accused petitioner), r/o Flat No. 52, Shiv Nagar, Murlipura Scheme, Police Station Murlipura, Jaipur. The said person was informed that the flat has to be searched and if he wishes, he can get the search done in the presence of a Gazetted Officer or a Magistrate and he was informed of his legal rights. A notice under section 50 of the Act of 1985 was issued to Hanif Khan (accused petitioner) for written consent regarding search. He gave the consent for his search and bag and so also the flat. During search two transparent plastic bags were found in the bag which was with Hanif Khan (accused petitioner). In the inside of one of the plastic bag a brown colour substance was found. When the bag was opened, examined and smelled, the illegal drug MDMA was found therein. A white coloured substance was found in another plastic bag which was seen, examined and smelled and found to be drug Cocaine for which Hanif (accused petitioner) was not having any permit / licence for keeping or transporting and the same was a crime under section 8/21 of the Act of 1985. On weighing the substances, the MDMA total 32 gm. and 17 mg. was found in one of the plastic bag and the net weight of the plastic bag separately was found to be 17 mgm and thus weighing of illegal drug MDMA without plastic transparent bag was found to be 32 gm. which was seized. The other illegal drug Cocaine was found to be 2 gm. and 3 mg. and the weight of the plastic bag was found to be 23 mg and thus, the net weight of Cocaine was 1 gm. and 18 mg. and the same was also seized from the possession of the accused petitioner which is found to be an offence under the NDPS Act.

3. Counsel appearing for the accused petitioner submitted that the quantity of Cocaine recovered from the possession of the petitioner is less than the commercial quantity i.e. 2 gm, however, the quantity of MDMA recovered from the possession of the petitioner is more than the commercial quantity. Counsel further submitted that the accused petitioner has kept the search and seizure substance for his personal consumption. Counsel also submitted that the flat from where the recovery has been made, does not belong to the petitioner and the said flat is not in conspicuous possession of the petitioner. Counsel further submitted that there is violation of provision of Section 52A of the Act of 1985 and there are bleak chance of conviction of the accused petitioner as in cases of violation of provision of section 52A of the Act o