The main legal point established in the judgment is that when there is an allegation of joint possession of contraband articles, the aggregate volume involved should be considered for determining whether the quantity exceeded the commercial quantity, and the presumption of possession and culpable mental state would operate against the accused.

JUDGMENT

Sanjay Kumar, J. - The petitioners in these two cases are sisters. They have another sister, Seema. These three sisters, who are from Rajasthan, figure as the accused in FIR No.8 dated 08.01.2020 on the file of Police Station City Fatehabad, District Fatehabad, registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act,1985 (for short, 'the Act of 1985'). By way of the present petitions, filed under Section 439 Cr.P.C., the petitioners seek grant of regular bail.

2. As per the F.I.R., the petitioners and their sister, Seema, were apprehended standing near the Bus Stand, Fatehabad, with plastic bags. The police party issued them separate notices under Section 50 of the Act of 1985 and upon due search, found that the bags contained Kachra Doda Post (poppy straw). In all, four bags of 14 kgs. each, aggregating to 56 kgs., were seized. Rajo, the petitioner in CRM-M-13215-2020, was found carrying two such bags while Baljeet Kaur, the petitioner in CRM-M-13636-2020, was found carrying one such bag. Their sister, Seema, was allegedly carrying one bag and a one-year old child, Sameer. In consequence, the subject F.I.R. was registered against the three sisters.

3. The regular bail petition in CRM-M-12037-2020 filed by Seema, the petitioners' sister, was dismissed by this Court on 07.05.2020.

4. However, Mr. Rajesh Lamba, learned counsel for the petitioners, would contend that the issue as to whether Section 37 of the Act of 1985 has application to the case was not dealt with in the proper perspective therein and addressed arguments on that aspect. According to the learned counsel, when separate notices were issued to each of the sisters under Section 50 of the Act of 1985 and admittedly, each of them was separately carrying a limited quantity of poppy straw, it would be incorrect to club the entire seized quantity for making out a case of possession exceeding the 'commercial quantity' prescribed under the Act of 1985. Learned counsel would therefore argue that Section 37 of the Act of 1985 has no application. He would point out that the bail petition of Seema, the third sister, was dismissed by applying this provision and therefore, the cases on hand require independent consideration. He would further state, on facts, that the three sisters were standing at the Bus Stand and were not travelling together and hence, they cannot be imputed with 'joint possession' and only their 'conscious individual possession' should be taken into account for the purpose of Section 37 of the Act of 1985.

5. Per contra, Mr. Deepak Bhardwaj, learned Deputy Advocate General, Haryana, would assert that, in terms of the replies filed by the jurisdictional police authorities in both cases, a single F.I.R. was registered against all the three accused and due investigation resulted in Rajo's disclosure statement to the effect that she alone had purchased the entire 56 kgs. of poppy straw from an unknown person in Bharatpur, Rajasthan, for Rs.30,000/-. He would further point out that the final report under Section 173(2) Cr.P.C. was already filed and 12 witnesses have been cited by the prosecution. The trial is stated to be pending before the learned Additional Sessions Judge, Fatehabad. Learned Deputy Advocate General would contend that the 'joint possession' of the accused would have to be taken into account and in consequence, Section 37 of the Act of 1985 would have application. He would argue that Sections 35 and 54 of the Act of 1985 apply and that the petitioners are not entitled to relief.

6. Before embarking on a factual inquiry, it would be apposite to take note of the legal regime obtaining under the Act of 1985. Section 2 (xviii) of the Act of 1985 defines 'poppy straw' to mean all parts (except the seeds) of opium poppy after harvesting, whether in their original form or cut, crushed or powdered, and whether or not the juice has been extracted therefrom.

7. Section 15 of the Act of 1985 provides the punishment for contr