The presumption of possession under the NDPS Act requires proof of recovery from the accused; bail is granted with conditions to ensure trial cooperation.

COMMON ORDER (ORAL)

1. These batch of bail applications involving similar and identical facts and questions are proposed to be disposed of by this common order.

2. Heard Mr. R. Gurung, learned counsel for the petitioners, who has submitted that an FIR dated 02.05.2023 was lodged before the Officer-in-Charge, Nongpoh Police Station, Ri-Bhoi District, wherein the informant, who is a police official of the Byrnihat Outpost, Ri-Bhoi District has stated that on 01.05.2023, at about 7:30 pm, on receipt of reliable information, a Naka checking was conducted and accordingly, one vehicle (Local Taxi) bearing registration No. ML 10 C 4908 was intercepted at Umling check gate.

3. On a search and seizure being made, the alleged contraband substance was found from the dashboard of the said Local Taxi, wherein four persons who are said to be passengers of the Local Taxi are suspected to be in possession of the contraband substance which substance on being tested, would reveal that it contain heroin. The weight of the suspected drug is 9.64 grams. Accordingly, on investigation being launched, the said four passengers were arrested.

4. In due course, charge sheet was filed by the Investigating Officer, who has found that a prima facie case is well founded to proceed against the said accused persons under the relevant provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, particularly Section 21(b)/29.

5. The case is now at the stage of evidence where one witness, out of the total nine witnesses cited, has been examined.

6. The learned counsel has submitted that the seizure of the alleged drugs was found from the dashboard of the Local Taxi, and as such, it cannot be presumed that it was found from the possession of the accused persons.

7. Reference to the applicability of Section 54 of the NDPS Act was made with the case of Sanjeet Kumar Singh alias Munna Kumar Singh v. State of Chhattisgarh being cited in this regard, the same reported in 2022 SCC OnLine SC 1117, wherein at para 34 of the same, the Hon’ble Supreme Court has observed as follows:

“34. It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the appellant, in our considered opinion will also be entitled to the same benefit as given by the Special Court to the co-accused.”

8. The next point of contention raised by the learned counsel for the petitioners is that the alleged seized contraband drugs, though indicated as intermediate quantity, is actually not so, but in fact, it should be noted as small quantity. In support of his contention, the learned counsel has led this Court to the report of the Forensic Science Laboratory examination of the seized contraband drugs, wherein out of a sample of 5.6664 grams, when tested, it gave a positive test for the presence of diacetylmorphine, the percentage of which comes to 17.5764%. It is the contention of the learned counsel for the petitioners that 17.5764% of the 9.64 grams seized, would reveal that the actual quantity of heroin seized would be 1.69 grams.

9. Considering the fact that the accused persons in question are young persons in the age group of 20 to 30 years, some of them are 26 and some of them are 22, and also the fact that they have been in custody for about 9(nine) months or so, it is prayed that this Court may be pleased to allow these applications and to grant the prayer for enlargement of bail with any conditions as deemed fit and