The main legal point established in the judgment is that the reverse burden principle, association with co-accused, call detail records, and Section 54 of the NDPS Act require substantial and conclusive evidence to establish the accused's involvement in the alleged offence.

JUDGMENT :

Atul Sreedharan, J.

1. Heard.

This application has been filed U/s. 439 Cr.P.C. on behalf of applicant Dinesh Rajod, in connection with Crime No. 90/2019 of the Investigating Agency: DRI, Bhopal, for offences U/s. 8/20(b)(ii)(c), 29 of the NDPS Act, 1985. The applicant is in judicial custody since 22/10/2019.

2. At the very outset, Ld. Counsel for the applicant has submitted that the case of the applicant is identical to that of the co-accused Dharmendra, who was granted the benefit of bail by this Court vide order dated 24/11/2020 passed in M.Cr.C. No. 14440/2020. The said order is elaborate and has taken into consideration the facts in detail while deciding the application in favour of the co-accused. For the sake of brevity, this Court adopts the factual aspects laid down in the order dated 24/11/2020 passed in M.Cr.C. No. 14440/2020.

3. However, Ld. Counsel for the respondent/DRI while opposing the application for grant of bail to the applicant herein, has argued that the applicant was travelling in the Baleno Car, which was allegedly escorting the Truck carrying the contraband article. As regards this submission, this Court has already dealt with it in M.Cr.C. No. 14440/2020 and for the reasons stated therein, has held that the said suggestion was speculative.

4. The second argument put forth by the Ld. Counsel for the DRI is that the confession of the applicant was made in the presence of independent Panchas/witnesses. However, it is not disputed that the said statement was made by the applicant after he was taken into custody by the respondent. Under the circumstances, the three Bench judgment of the Supreme Court in the case of Tofan Singh Vs. The State of Tamil Nadu would squarely apply in this case and the said confession, prima facie is to no avail.

5. The third argument put forth by the Ld. Counsel for the DRI is the principle of reverse burden, that is provided under Section 35 of the N.D.P.S. Act, which deals with the presumption of culpable mental state, would apply against the applicant herein. However, before the said presumption can be raised, the prosecution must establish the actus-reus on the part of the accused. Where that is done, the mens-rea of intention or knowledge shall be presumed. The said mens-rea can be rebutted by the accused by producing evidence to the effect that he never had knowledge of conscious possession. However, sub-section (2) carves out an exception to the general principles of criminal jurisprudence and provides that in such a situation, the accused has to prove the non-existence of the mental state (relating to conscious possession) beyond reasonable doubt and not merely on a preponderance of probability.

6. However, in this particular case, there is inadequate evidence to prima-facie reveal the involvement of the applicant herein though his action may come under the category of "suspicion" of his involvement in the incident. Suspicion can never take the place of legally cognizable proof whether it be a degree of prima-facie evidence or beyond reasonable doubt.

7. Ld. Counsel for the respondent/DRI has also referred to Section 30 of the Act and has argued that the act of the applicant herein would be covered under the said Section. Section 30 of the Act makes the "preparation" to commit an offence involving commercial quantity of a contraband or offences U/s. 19, 24 and 27A of the N.D.P.S. Act. There are four stages that an act must go to before it can be said to have been an offence. The first stage is "intention" to commit the offence. The second stage is "preparation" to commit an offence. The third stage is the "attempt" to commit the offence and the fourth stage is the "commission" of an offence. For obvious reasons, stage one, i.e., intention to commit the offence is never an offence, as it is impossible to prove an intention until it is connected/associated with actus-reus and it is always the action, on the basis of which the intention stands proved. The second stage is p