The recovery of contraband from a transparent polythene bag raised doubts about conscious possession, and the legal principles related to bail under Section 37 of the Act of 1985 were considered in granting regular bail to the petitioner.

JUDGMENT

Vikas Bahl, J. (Oral) - Prayer in the present petition is for grant of regular bail to the petitioner in FIR No.178 dated 29.07.2021 registered under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as 'the Act of 1985') at Police Station City South Moga, District Moga.

2. Learned counsel for the petitioner has submitted that the petitioner is in custody since 29.07.2021 and the investigation is complete and challan has been presented and there are 11 prosecution witnesses, out of which, none have been examined as yet and thus, the conclusion of trial is likely to take time. It is further submitted that the petitioner is not involved in any other case. On merits, it has been argued by the learned counsel for the petitioner that as per the prosecution case, the petitioner on seeing the police party, threw a transparent polythene bag and started turning towards the street and was thereafter, apprehended. It is further argued that a perusal of report (Annexure P-3) under Section 173 of Cr.P.C. would show that the said bag had been picked up from the ground by SI Balwinder Singh. It is argued that it has been repeatedly held by Coordinate Benches of this Court that it is highly unlikely for a person who has to carry contraband, to carry the same in a transparent polythene bag and on the basis of the said point alone, the Coordinate Benches of this Court have granted the concession of bail to the accused persons in such cases. Reference has been made to the various orders passed by the Coordinate Benches of this Court i.e. order dated 02.08.2021 passed in CRM-M-4408-2021 titled Banti Kaur @ Bhanti Kaur Vs. State of Punjab, Binder Kaur @ Goga Vs. State of Punjab reported as 2021(3) RCR (Criminal) 360, Jaskaran Singh @ Jassu Vs. State of Punjab, reported as 2021(2) RCR (Criminal) 837, order dated 28.02.2020 passed in CRM-M- 8026-2020 titled as Lakhwinder Singh @ Lakha Vs. State of Punjab.

3. It is further contended that the question whether the recovery effected from the ground has been effected from the conscious possession of the petitioner or not in the present case, is also a debatable issue and on the said aspect, learned counsel for the petitioner has relied upon a judgment passed by the Coordinate Bench of this Court in Ravi Kumar Vs. State of Punjab, reported as 2019(4) RCR (Criminal) 714.

4. On the other hand, learned State Counsel has opposed the present petition for grant of regular bail to the petitioner and has submitted that the petitioner had thrown the transparent polythene bag containing the contraband in the presence of the police officials and thus, it cannot be said that the recovery effected from the petitioner is not from his conscious possession.

5. This Court has heard the learned counsel for the parties and has perused the paper book. A Coordinate Bench of this Court in Banti Kaur @ Bhanti Kaur's case (Supra) has held as under:-

'1. The petitioner has approached this Court seeking grant of regular bail in respect of a case registered against her vide FIR No.191, dated 8.10.2020, Police Station Cantt Bathinda, District Bathinda, under Section 22 of NDPS Act, wherein it is alleged that the petitioner was caught red- handed while carrying a transparent plastic polythene bag which was found to contain 1000 tablets of 'Clovidol'.

2. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the instant case and that she has an unblemished record and is not involved in any other case and it is highly unlikely that any person who is carrying contraband would carry the same in a transparent bag so as to invite attention, including that the police.

3. Opposing the petition, learned State counsel has not disputed the fact that the contraband is alleged to have been carried in a transparent plastic polythene bag. He has however, submitted that the weight of the total recovered contraband works out to 410 grams of 'Tramadol' which would