The court reaffirmed that possession of commercial quantities of narcotics creates a presumption of guilt, placing the onus on the accused to prove otherwise.

ORDER :

1. This bail application has been filed by the accused petitioner under section 439 CrPC in connection with FIR No. VIII(IO)09/NCB/JZU/2020 registered at Police Station NCB Jodhpur for the offences punishable under Section 8/18, 8/25, and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act of 1985’).

2. The FIR No. VIII(IO)09/NCB/JZU/2020 was registered with the facts that a secret information was received by one Mr. Banshilal Jat on 19.05.2020 at 10:30 AM and he along-with team reached Peeplaz Toll Plaza, NH-8, where one truck bearing number RJ-19GA-5989 was seen coming from Kishangarh. After stopping the said truck, the name of the driver was asked. The truck driver stated his name as Jairam Vishnoi (petitioner). During the course of search of the truck, inside the seat which was in the back side of the seat of driver, in four plastic ken, liquid substance opium 58.640 kg was found and recovered. He (accused petitioner) was asked about the licence but he told that he is not having any such licence for the same thereafter the petitioner was arrested.

3. Counsel appearing for the accused petitioner submitted that the accused petitioner has falsely been implicated in this case as he has nothing to do with the alleged incident. Counsel submitted that the provisions of sections 42, 50 and sub-section (2) of Section 52A of the Act of 1985 have not been followed properly and as a result whereof, the entire alleged recovery is vitiated. Counsel further submitted the PW2 and PW3 did not support the prosecution story and turned hostile. Counsel also submitted that neither any recovery has been made from the petitioner nor further any recovery has to be made from him. Counsel further submitted that the charge-sheet in the case has since been filed. Counsel also submitted that the accused petitioner is in judicial custody since 19.05.2020 as he has remained in judicial custody for more than four years. Counsel submitted that the trial of the case is likely to take considerable time, hence the accused petitioner may be released on bail.

4. Mr. Tej Prakash Sharma, Special Public Prosecutor appearing for NCB vehemently opposed the bail application and submitted that there is recovery of contraband from the possession of the petitioner which is more than the commercial quantity. He further submitted that the provision of section 37 of the Act of 1985 clearly speaks that no person accused of an offence punishable for the offences involving commercial quantity may not be released on bail because at this stage it cannot be said that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

5. Considered the submissions made by the learned counsel appearing for the accused petitioner as well as learned Public Prosecutor and also perused the challan papers.

6. It is a fact on record that Narcotic Drugs Opium has been recovered from the possession of the accused petitioner and the quantity of such substances is more than the commercial quantity as notified by the Government.

7. The provision of section 37 of the Act of 1985 clearly speaks that prima facie from whose possession contraband more than commercial quantity is found, is guilty of committing offence under the provisions of the Act of 1985.

8. Bare reading of provision of section 37 of the Act of 1985 speaks that it is for the accused to show that he is not guilty of such offence. Normally, a person from whose possession some contraband more than the commercial quantity is found, cannot say that he is not guilty of an offence, but in exceptional circumstances when he could show that either he has been falsely implicated or he could show that he was authorized to possess the same, then it can be believed that he is not guilty of such an offence. In the present case, the counsel appearing for the petitioner has not raised any such argument which could convince the Court tha