Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Ori) 728

IN THE HIGH COURT OF ORISSA AT CUTTACK
S.K.PANIGRAHI, J.
Sarat Pradhan – Appellant
Versus
State of Odisha – Respondent
BLAPL No. 5719 of 2022
Decided On : 27-10-2022

Advocates Appeared:
For the Appellant : A.R. Panda
For the Respondent: G.R. Mohapatra

Mere presence in a vehicle with contraband does not equate to conscious possession; prosecution must prove knowledge and control to establish guilt, emphasizing the fundamental right to a speedy trial.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act - Sections 20(b)(ii)

(C) and 29 - Bail application - Driver of vehicle seized with contraband - Mere presence in vehicle does not equate to conscious possession - Prosecution must prove direct control over contraband - Constitutional right to speedy trial emphasized. (Paras 6, 10, 16)

Facts of the case:
The petitioner, while driving a vehicle, was intercepted and found in possession of 69 kg 800 grams of ganja, without knowledge or documentation regarding it. (Paras 6-7)

Findings of Court:
The court held that the petitioner has not established conscious possession of the contraband and emphasized the need for evidence of knowledge and control. (Para 8)

Issues: The key issues were whether the petitioner had conscious possession of the contraband and the implications of the right to speedy trial. (Paras 6, 16)

Ratio Decidendi: The court ruled that mere possession in a vehicle does not prove conscious possession; the prosecution has the burden to show knowledge and control over contraband. Additionally, prolonged custody without trial was found unjustifiable. (Paras 10, 16)

Result: Bail granted with conditions.

Judgement Key Points

The legal document pertains to a bail application filed by Sarat Pradhan, who is in custody in connection with a case involving the alleged transportation of contraband (ganja) under the NDPS Act. The court examined the circumstances surrounding the seizure, the actions of the petitioner, and the evidence presented.

The court noted that the petitioner was driving the vehicle and claimed to be acting on the instructions of the vehicle's owner, with no evidence suggesting his direct control or knowledge of the contraband's presence. The court emphasized that mere presence in a vehicle containing contraband does not automatically establish conscious possession, especially in the absence of proof of control or awareness of the illicit contents.

The court also considered the petitioner’s conduct, noting that there was no attempt to escape, and he has no prior criminal record. The court highlighted the importance of the right to a speedy trial and observed that the petitioner had been in custody for a significant period without trial, which could violate his constitutional rights.

Taking into account all these factors, including the lack of evidence proving conscious possession, the petitioner’s conduct, and the absence of criminal antecedents, the court found that the petitioner had made out a case for bail. The court granted bail under stringent conditions, including regular appearance, non-engagement in similar activities, and non-tampering with evidence, with the understanding that any breach could lead to cancellation of bail.

Overall, the court’s decision was based on the principles of individual liberty, the presumption of innocence until proven guilty, and the necessity of balancing societal interests in combating drug trafficking with the constitutional rights of the accused.

Table of Content
1. prosecution's brief summary of events. (Para 2 , 3)
2. arguments of the respective parties presented. (Para 4 , 5)
3. assessment of conscious possession in context. (Para 6 , 10)
4. judicial interpretations on possession requirements. (Para 7 , 8 , 9 , 11)
5. court's observations on the petitioner’s conduct and societal impact. (Para 12 , 14)
6. importance of speedy trial and its application. (Para 15 , 16)
7. bail conditions imposed and order for release. (Para 17 , 18 , 19 , 20)

ORDER :

1. This matter is taken up through hybrid mode.

2. The Petitioner is in custody in connection with G. Udaygiri P.S Case No. 49 of 2020 corresponding to C.T Case No.33 of 2020 pending before the court of the Learned Addl. District & Sessions Judge-cum-Special Judge, Balliguda for commission of offences u/s 20 (b) (ii)(C)/29 of N.D.P.S. Act.

3. The prosecution story, in brief, has been summarised in the following points:

i. On 08.07.2020, as per direction of the IIC, G. Udaygiri P.S, the informant and the S.I of Police, Kausalya Behera formed a raiding party and proceeded towards Kalinga Ghat Road in order to intercept an Indigo e-CS car having Regd. No. OR 02 BZ 8030 which was carrying contraband articles and likely to pass Kalinga ghat road.

ii. At Kalinga Chhak, the raiding party saw a car coming at high speed and signalled the driver (petitioner) to stop and cordoned the vehicle to prevent the petitioner from escaping. The raiding party searched the vehicle and seized three bags containing 69 kgs 800 grams of contraband ‘Ganja’.

iii. Upon interrogation, the petitioner disclosed his name and identity but was not able to produce any license regarding transportation of the contraband. Moreover, the petitioner also disclosed that on the direction of Bhawanisankar Pattnaik of village-Panasapodi, he was merely transporting the bags containing contraband article to be delivered at Nayagarh.

4. It is submitted by Learned Counsel for the Petitioner that the Petitioner was the driver of alleged seized vehicle and was merely acting upon the direction of the owner of the vehicle. He further contended that the petitioner is innocent and has been falsely implicated in this case as he has no criminal antecedents.

5. Per Contra, the Learned Counsel for the State vehemently opposed the bail petition on the grounds that commercial quantity of ganja was seized from exclusive and conscious possession of the accused.

6. On going through the allegations made in the complaint and on perusal of the charge-sheet, it appears that on the relevant time, the petitioner was merely driving the alleged vehicle to deliver the bags containing contraband article at Nayagarh. The petitioner didn’t have any knowledge regarding the articles present in the bag and was merely acting according to the instructions of the owner of the vehicle.

7. The Supreme Court in the case of Avtar Singh v. State of Punjab , (2002) 7 SCC 419 : AIR 2002 SC 3343 held that the driver of the truck vehicle and the persons who were found sitting on gunny bags containing poppy husk could not be attributed “conscious possession” of such bags unless there was proof of the concern of those persons with the goods. The relevant observations of the Apex Court may be reproduced as below:

“possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle, one of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable