Judgment / Order

02/02/2021 The instant bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in relation to F.I.R. No.210/2019, Police Station Dhariyavad, District Pratapgarh for offences under Sections 8/15, 8/25 & 8/29 of the NDPS Act.

Learned counsel Shri Bishnoi vehemently and fervently urges that the petitioner and the co-accused Dharamchand were travelling in the same car (No.RJ 27 CG 5141) from which the contraband poppy-straw was recovered. He urges that the application for bail filed on behalf of Dharamchand has been accepted by this Court and the case of the present petitioner is on the same footing. Shri Bishnoi further urges that the Investigating Officer did not ensure compliance of mandatory provision of Section 42 of the NDPS Act and hence, the search and seizure are vitiated and accordingly, the petitioner deserves indulgence of bail.

Per contra, learned Public Prosecutor points out that a total of 135.4 Kgs of poppy-straw which weighs well above the commercial quantity was concealed in the car being driven by the petitioner and Dharamchand was also present therein. He urges that a misstatement of fact was made before this Court while arguing the bail application of Dharamchand inasmuch as it was portrayed that only 42 Kgs. of poppy-straw was recovered from the said accused whereas the gross 135.4 Kgs. of poppy-straw was recovered from the car in which both the accused were present. He urges that contraband was recovered as a bulk concealed in the car in question, the conscious possession of the whole quantity has to be attributed to both the accused present in the vehicle by virtue of Section 35 of the NDPS Act. He further submits that an application for cancellation of bail has already been moved by the State in the case of Dharamchand. He thus, urges that the petitioner does not deserve indulgence of bail in this case as the conditions under Section 37 of the NDPS Act are not satisfied.

I have given my thoughtful consideration to the submissions advanced at Bar and have through the material available on record.

Suffice it to state that total of 135.4 kgs. of Poppy-straw packed in seven gunny bags was recovered from the car (No.RJ 127 CG 5141) in which the petitioner and the co-accused Dharamchand were found present. As the contraband poppy-straw was found as a bulk, conscious possession of the whole quantity can be attributed to both occupants of the vehicle by virtue of Section 35 of the NDPS Act. The bail application of co-accused Dharamchand was accepted by Co-ordinate Bench of this Court based on the argument of the defence counsel that only 42 Kgs. of contraband poppy-straw was recovered from the said accused. However, the factual position is otherwise as is evident from bare perusal of the challan papers. Hon’ble the Supreme Court has held in the following Cases (i) State of Kerala & Ors. vs. Rajesh & Ors., reported in AIR

2020 SC 721, (ii) Union of India vs. Ratan Malik, reported in (2009)2 SCC

624, (iii) Narcotics Control Bureau vs. Kishan Lal & Ors., reported in AIR 1991 SC 558, (iv) Union of India vs. Shiv Shanker Kesari reported in (2007)7 SCC 798, and (v) Intelligence Officer, Narcotics C. Bueau vs. Sambhu Sonkar & Ors., Control reported in AIR 2001 SC 830.

that while considering the bail application of accused in a case involving recovery of commercial quantity of narcotic drugs and psychotropic substances, recording of satisfaction of Section 37 of the NDPS Act is mandatory. Regarding the contention of learned counsel Shri Bishnoi that the mandatory provision of Section 42 was not complied with while conducting search and seizure, suffice it to say that as the recovery was made from a vehicle in transit, the provisions of Section 43 would apply and not Section 42 of the NDPS Act. Hence, no prejudice is caused to the petitioner by the so-called non-compliance of Section 42 of the NDPS Act. In the present case, I am duly satisfied that no such satisfac