The mere presence in a premises with contraband does not imply conscious possession, especially when the accused has no prior criminal record and others involved have been granted bail.

Accused No.1 in Spl.CC.No.912/2023 pending before the Court of XXXIII Addl. City Civil and Sessions Judge and Special Court for NDPS, Bangalore, arising out of NCB Cr.No.48/1/28/2022/BZU of Narcotics Control Bureau, Bangalore Zonal Unit, Bangalore, for the offences punishable under Sections 8(c) r/w 20(b)(ii)(A), 21(b), 22(b), 22(c), 23, 25, 27A, 28 & 29 of NDPS Act, is before this Court under Section 439 of Cr.P.C.

2. Heard the learned counsel for the parties.

3. The Narcotics Control Bureau, Bangalore Zonal Unit, Bangalore, on receipt of credible information had conducted a raid in Flat No.304, 3rd Floor, Maithri Opulence, 6th ‘A’ Main, GM Palya, Bangalore North, New Thippasandra, Bangalore, on 22.11.2022 at about 5:45 hours and had apprehended three persons in the said house and also had seized contraband article LSD paper blots weighing about 0.29 grams, 2.22 grams of Cocaine, 2.14 grams of Amphetamine and 6.18 grams of Hashish from the room of accused No.2. From the room of accused No.3, 85 grams of Ganja was seized.

4. Thereafter FIR in NCB Cr.No.48/1/28/2022/BZU was registered against them. Investigation in the case is completed and charge sheet has been filed. The bail application filed by the petitioner before the trial Court in Crl.Misc.No.11357/2023 was rejected on 01.12.2023. Therefore, he is before this Court.

5. Learned counsel for the petitioner submits that the petitioner had earlier filed Crl.P.No.6216/2023 at the crime stage and the same was dismissed as withdrawn with liberty to file a fresh petition before the Sessions Judge after filing of charge sheet. He submits that accused Nos.2 and 3 have been granted regular bail by the trial Court. The petitioner has no criminal antecedents. He is in judicial custody from 23.11.2022. The investigation in the case is completed and charge sheet has been filed. The premises from which the recovery was made on 22.11.2022 does not belong to the petitioner. Accordingly, he prays to allow the petition.

6. Per contra, learned counsel appearing for the respondent has opposed the bail application and she submits that the petitioner was staying along with accused Nos.2 and 3 in the premises in question where raid was conducted on 22.11.2022. The petitioner was found in the said house when the raid was conducted and from the room of accused No.2, commercial quantity of contraband articles were seized. The contraband article seized from the custody of accused No.1 is of commercial quantity. She also submits that on the basis of the statement made by the petitioner during the course of investigation on 28.11.2022, there has been recovery of 34 grams of Ganja from the courier office. She further submits that in view of Section 37(1)(b) of NDPS Act, since the contraband article seized is of commercial quantity, the petition is liable to be rejected.

7. The material on record goes to show that the raid was conducted to the house, which was taken on lease by accused Nos.2 and 3 and the petitioner was allegedly staying along with accused Nos.2 and 3 when the raid was conducted. Accused Nos.1 to 3 were apprehended on 22.11.2022 in the said house and they were produced before the jurisdictional Court on 23.11.2022 and police custody of accused Nos.1 to 3 was extended upto 25.11.2022. The statement of accused no.1 was recorded by the Investigation Officer on 22.11.2022 and 23.11.2022. The alleged recovery of 34 grams of Ganja from the office of courier is said to be on 28.11.2022 based on the statement made by the petitioner herein during the course of interrogation. It is not in dispute that the petitioner was not taken to the courier office by the Investigation Officer at the time of alleged seizure that was done on 28.11.2022. Further though, the statement was said to have been made on 22.11.2022 and 23.11.2022, the seizure of the contraband article is only on 28.11.2022. This contraband article Ganja weighted only 34 grams which is of small quantity.

8. Insofar as seizure of contraband