The court clarified that 'conscious possession' under the NDPS Act necessitates awareness and control over the contraband, which was not proven in this case.

JUDGMENT & ORDER (ORAL)

Arindam Lodh, J. - This is an application filed under Section 37 of the NDPS Act read with Section 439 Cr.P.C. for granting bail to the accused persons, namely, Bijoy Kumar Labor and Md. Iddrish Ali, who had been arrested on 22.01.2024 for allegedly committing offences punishable under Sections 8(c)/20(b)(ii) C/25/29/32 of the NDPS Act, 1985. The accused persons had been in custody for 60 days.

2. Shortly stated, the accused persons were driving a 10-wheeler container truck as driver and co-driver. The said container truck was originated from Udaipur, Gomati District, Tripura and was moving towards Assam. On the basis of a secret information, the vehicle was stopped at Churaibari Gate and was checked by the police personnel. There were many packets of various types of articles, and while checking 10 packets were found to be carrying contraband articles. The weight was taken and it was found that those packets were carrying 71.95 kgs. of dry ganjas (cannabis). On such recovery of contraband articles, police arrested both the accused persons and seized those 10 packets containing dry ganjas. The accused persons had moved the jurisdictional Special Judge (NDPS) under Section 437 Cr.P.C. for releasing them on bail, but, such applications were refused. Thereafter, the accused persons had approached this court with the instant bail application.

3. With the aforesaid background of facts, I have heard Mr. Deba Sarmah, learned counsel for the accused persons and Mr. Raju Datta, learned PP appearing on behalf of the State-respondent.

4. At the very outset, Mr. Sarmah, learned counsel has canvassed that the accused persons are the drivers and it was not within their knowledge that out of several packets inside the containers, there were 10 packets containing contraband articles. According to the learned counsel for the accused persons, they were simply the drivers who were given the responsibility to drive the vehicle and carry the vehicle from Agartala to the place of its destination. Another fold of argument as advanced by Mr. Sarmah, learned counsel is that, though, it is true that the contraband articles were seized from the container truck which they were driving, but, those articles were not under their 'conscious possession'. Mr. Sarmah, learned counsel has relied upon the decision of the Supreme Court rendered in Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan, reported in (2021) 10 SCC 100 to establish the meaning of the expression 'conscious possession'. Learned counsel appearing on behalf of the accused persons has emphasized that since the articles were not in conscious possession of the accused persons, they are entitled to be released on bail in consonance with the spirit of Section 37 of the NDPS Act.

5. On the other hand, Mr. Datta, learned PP appearing on behalf of respondent-State has strongly opposed the bail prayer made by the accused persons. Mr. Datta, learned PP has submitted that since the contraband articles were found inside the container truck, it must be presumed that the drivers were in conscious possession of those seized articles as they were driving the vehicle. The second point of argument is that out of the said 10 packets containing contraband articles, only 5 packets were booked by a person to be delivered to the place of destination through a courier service company, namely, Delhivery Ltd. To say it otherwise, 5 packets were booked by the sender and another 5 packets were not booked by any person. Learned PP has also relied upon the judgment rendered in Md. Nawaz Khan (supra), particularly, paragraphs 28 and 30. Mr. Datta, learned PP has also placed into service a decision of the Supreme Court in Union of India vs. Rattan Mallik alias Habul reported in (2009) 2 SCC 624, paras 14 and 15.

6. Before I deal with the merits of the instant bail application and the submissions advanced by learned counsel appearing for the parties, I deem it necessary to find out