The burden of proof on the accused to demonstrate lack of conscious possession of contraband under the N.D.P.S. Act.

Anil Kumar Sharma, J.: -

Applicant-Sushant Gupta seeks bail in Case Crime no. 57 of 2013 u/s 8/20/25/29 of N.D.P.S. Act, P. S. Custom Department, District Bareilly.

2. After exchange of affidavits arguments of parties' counsel have been heard at length and the record had been perused.

3. It has been argued by the learned counsel for applicant that the whole prosecution story is false, the applicant has not committed any offence and has been illegally implicated in the case; that the applicant had recently completed B.C.A. course and was preparing for competitive examinations, has never indulged in any illegal or criminal activities and has been booked in the case only because he is son of co-accused Rajesh Chandra Gupta. It has been contended that even if the prosecution story is taken as true then also it cannot be said that the applicant was having any knowledge of the charas being carried in the Bolero vehicle UK-50M/5586 and this fact is corroborated by their statements u/s 67 of the N.D.P.S. Act and in absence of any knowledge that narcotic substance is being transported in the vehicle, the applicant cannot be prosecuted. It has been further submitted that there is no independent witness of the locality and recovery has not been made at the spot; that the charge-sheet has been submitted without any report of chemical analysis, so it cannot be said that the recovered contraband is charas and thus the charge-sheet is incomplete and defective, therefore, the applicant is entitled for bail u/s 167 Cr. P. C. Mandatory provisions of sections 42, 50, 52, 55 and 57 have not been followed, which entitles the applicant to be released on bail, argued the learned counsel. It has been further contended that the alleged recovery of contraband was made on 19.2.2013 at about 8 p.m., but its memo had been prepared on 20.2.2013 and the applicant was produced before the Court on 21.2.2013 i. e. 48-hours after his detention, which is patently illegal so the applicant deserves bail. The case of the applicant is that the officials of the Customs Department found the alleged Bolero car in abandoned condition and on suspicion his father was called by the officials. The applicant accompanied his father and thereafter both of them were illegally challaned by the department. Lastly it has been submitted that the applicant is a young man having clean record preparing for competitive examinations and is in judicial custody since 21.2.2013, so he may be released on bail.

4. Opposing the bail application learned Special Public Prosecutor of Customs & Central Excise has argued that on the basis of secret information, the Bolero vehicle UK-04M/5586 was intercepted by the officers of the Customs Department on 19.2.2013, which was being driven by co-accused Rajesh Chandra Gupta, father of the applicant and applicant was also travelling therein. The applicant was detained, searched, and 50.300 kgs charas was recovered which was kept in the hidden cavity of the aforesaid vehicle and thereafter he was arrested in accordance with the mandatory provisions of the N.D.P.S. Act by the officials of the Customs department and all documents in this regard were properly drawn up. The accused was arrested on 20.2.2013 at 8.00 p.m. and was thereafter produced in the Court on 21.2.2013 and since then he is in judicial custody. It has been further submitted that being the son of main accused Rajesh Chandra Gupta, the applicant was also in conscious possession of the contraband in view of the provisions of section 35 and 54 of the Act and both of them were indulged in illegal trafficking of the narcotic drugs from Nepal. It has been further submitted that the applicant and his father both have voluntarily confessed their guilt and the new bolero vehicle was purchased about a year before in the name of the father of the applicant which had been released vide order dated 06.06.2013 by the Court; that the statements of the accused are admissible u/s 67 of N.D.P.S. Act and