Recovery from a thrown plastic bag raises a debatable issue of conscious possession, and the court may grant bail considering factors such as custody, pending examination of prosecution witnesses, and absence of involvement in other NDPS Act cases.

JUDGMENT

Vikasbahl, J. (Oral) - This is a first petition under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR no.17 dated 27.02.2021 registered under Section 22/61/85 of the Narcotic Drugs and Psychotropic Substances, Act 1985 at Police Station Sadar Rampura, District Bathinda.

2. Learned counsel for the petitioner has submitted that in the preesnt case, the petitioner has been in custody since 27.02.2021 and challan has already been presented and there are 11 prosecution witnesses and none of them have been examined and the petitioner is not involved in any other case. It is further submitted that as per the FIR, the petitioner was stated to be holding a plastic transparent (pardarshi) bag which he had thrown on seeing the police party and had tried to run away but was apprehended by the police on the spot. Learned counsel for the petitioner has relied upon decision of a Coordinate Bench of this Court in CRM-M- 16150-2021 dated 19.07.2021 titled as Balwinder Singh Vs. State of Punjab and on judgment in CRM-M-33733-2020 dated 15.03.2021 titled as Manjit Singh Vs. State of Punjab alongwith connected matters to contend that in such a situation the question as to whether the petitioner was in conscious possession of the contraband is a debatable issue since the alleged recovery had been made from the plastic bag lying on the ground. Further reliance has been placed upon various orders passed by coordinate Benches of this Court i.e. order dated 02.08.2021 passed in CRM-M-4408-2021 titled as 'Banti Kaur @ Bhanti Kaur Vs. State of Punjab, Jaskaran Singh @ Jassu Vs. State of Punjab, reported as 2021(2) RCR (Criminal) 837, Binder Kaur @ Goga Vs. State of Punjab reported as 2021(3) RCR (Criminal) 360, and order dated 28.02.2020 passed in CRM-M-8026-2020 titled as Lakhwinder Singh @ Lakha Vs. State of Punjab in which it was held that in a case where the accused is stated to have been carrying narcotic drugs in a transparent plastic bag, then the said issue would also be a debatable one as it is highly unlikely that the accused would carry such substances in a transparent polythene and would entitle the petitioner to bail.

3. Learned State counsel has opposed the present petition for regular bail and has submitted that the police party had seen the petitioner throwing the plastic bag and thus, the question of the petitioner not being in conscious possession of the recovered contraband, does not arise. It is further submitted that recovery in the present case is of commercial quantity and thus, the bar under Section 37 of the NDPS Act would apply.

4. This Court has heard the learned counsel for the parties.

5. In Balwinder Singh's case (Supra), a Coordinate Bench of this Court has held as under:

'Briefly stated, case of the prosecution against the petitioner is that on 04.03.2019 police party headed by ASI Ravinder Singh on patrolling duty were coming to Tehang Octroi via Saiflabad. When they reached near Civil Hospital, Phillour they saw the petitioner coming on foot who on seeing the police party threw one heavy weight black coloured polythene bag and tried to run away. The police apprehended the petitioner and on search as per prescribed procedure recovered 55 intoxicant injections containing Buprenorhpine 2 ml each and 55 injections containing Avil 10 ml each from the polythene bag.

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On the other hand, learned State Counsel has argued that the petitioner kept in his conscious possession commercial quantity of intoxicant injections. Rigors of Section 37(1)(b) are fully applicable to the case of the petitioner. The petitioner does not deserve the concession of regular bail. Therefore, the petition may be dismissed.

However learned State Counsel has conceded that the petitioner is not involved in any other case under the NDPS Act.

In CRM-M-13662-2020 titled as 'Niranjan Kumar @ Kaka Vs. State of Punjab' decided on 06.07.2020; CRM-M-14474- 2020 titled as 'Dharminder Singh Vs. State of Punjab' decided on 24.06.