1. The present bail application has been filed by the accused petitioner under section 483 of the BNSS, 2023 in connection with FIR No. 0293/2023 dated 21.12.2023 registered at Police Station Peeplu, District Tonk for the offence punishable under section 8/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act of 1985’).
2. Facts of the case in nutshell are that on 31.12.2023 Mr. Jaimal Singh, Sub Inspector- SHO, Peeplu along-with police personnel were on in the night. When they reached in front of Nathdi near Maasi Nahar, one Swift Dzire Car came towards Jhirana. After seeing the patrolling party, they took the car from the main road to the Kachha way going towards Naya Village. The police team after chasing stopped the car and when asked the name then the person driving the car stated his name as Bhajanlal Kumhar s/o Hanuman Kumhar and the person who was sitting adjacent stated his name as Khushiram Jat s/o Rajaram Jat and the person who was sitting in the middle stated his name as Udairam Gurjar s/o Gordhan. During the course of search of Car bearing number RJ-26-CA-4005, on the middle seat, two plastic bags (katte) and two other plastic bags (katta) were found in filled condition in luggage dickey. All the above- named three persons failed to give any satisfactory reply. After opening the bags (katte), when same were checked then it was detected ‘Doda Chura’. When licence in regard to same was asked then they showed inability. The net weight of ‘Doda Chura’ was 75 kg. and 309 gm.
3. Counsel appearing for the accused petitioner submitted that the accused petitioner is an innocent person and he has been implicated in the present case merely because he is the registered owner of the Swift Dzire Car bearing Registration number RJ-26-CA-4005, from which the alleged contraband was recovered at the time when co- accused persons namely; Bhajan Lal Kumhar and Khushi Ram Jat were present inside, in view of the provisions of Section 25 of the NDPS Act.
Counsel further submitted that the accused petitioner is a student and he is preparing for the competitive examinations and he was not present in the car in question at the time of recovery of the contraband article. Counsel also submitted that on demand of the said Car, the accused petitioner has given his car to his relative and the petitioner was not having any knowledge about transporting of the alleged contraband in the aforesaid Car. Counsel further submitted that the accused petitioner is in custody since 11.06.2024 and charge-sheet has already been filed in the matter and the trial of the case will take considerable and prayed that he may be released on bail.
4. Counsel further submitted that co-accused persons namely; Rajulal, Bannalal and Jeevraj Karasadha have been granted indulgence of bail by this Court vide order dated 21.08.2024 and the case of the present accused petitioner is on similar footings. Hence, the present present accused petitioner may also be extended similar benefit of bail by this Court.
Counsel for the accused petitioner in support of his submissions has placed reliance upon the following orders decided by the Co-ordinate Bench of this Court:-
"1. Ravindra & Anr. Vs. State of Rajasthan (S.B. Criminal Misc. Bail Application No.11177/2023, dated 18.09.2023;
2. Babulal Vs. State of Raj. (S.B. Criminal Misc. Bail Application No.6739/2024) decided on 02.08.2024’
3. Mahesh Saini Vs. State of Raj. (S.B. Criminal Misc. Bail Application No.9855/2023) decided on 04.08.2023; and
4. Imran Ahmed Vs. State of Rajasthan (S.B. Criminal Misc. Bail Application No. 9006/2024) decided on 22.08.2024."
5. Learned Public Prosecutor appearing for the State has vehemently opposed the bail application and submitted that the provision of Section 25 of the NDPS Act speaks that the registered owner of the vehicle actively involved in the offence, shall also be an accused. It is not in dispute that the accused petitioner is the registered owner of the vehicle Swift Dzire Car bearing Registration number RJ-26-CA-4005 from which the contraband was recovered which is more than the commercial quantity in the presesence of co-accused persons namely; Bhajan Lal Kumhar and Khusiram Jat. He further submitted that in such cases also the provisions of section 37 of the NDPS Act are also attracted.
6. Considered the submissions advanced by the counsel appearing for the accused petitioner, learned Public Prosecutor appearing for the State and perused the challan papers.
7. The provisions for making consideration of the bail application of the accused petitioner in the facts and circumstances of the present case are sections 25, 35, 37 and 54 of the Act of 1985, which are quoted as under:-
“25. Punishment for allowing premises, etc., to be used for commission of an offence.— Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.
35. Presumption of culpable mental state.—(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.—In this section “culpable mental state” includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section , a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
37. Offences to be cognizable and non-bailable.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 3 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
54. Presumption from possession of illicit articles.—In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of—
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured,for the possession of which he fails to account satisfactorily.”
8. It is not in dispute that the accused petitioner is the registered owner of the vehicle i.e. Swift Dzire Car bearing Registration No. RJ-26-CA-4005 in which co-accused persons namely; Bhajan Lal Kumhar and Khushi Ram Jat were traveling with the alleged contraband i.e. Doda Chura weighing 75.309 kg., which was recovered and seized. The said contraband is more than the stipulated commercial quantity notified by the Government.
9. On notice dated 11.06.2024 issued under section 133 of the Motor Vehicles Act to the accused petitioner by the SHO of Police Station Baroni, the accused petitioner has given in writing that on 31.12.2023 at about 2:00 AM his owned car bearing registration number RJ-26-CA-4005 was being driven by his cousin brother Bhajan Lal. It has not been stated by the accused petitioner that co-accused person namely; Bhajan Lal has taken the car on demand by misleading the accused petitioner. The accused petitioner in the memo of bail application has stated that the car in question on demand was given to the relative of the accused petitioner whereas Bhajan Lal is the family member of the accused petitioner.
10. The Hon’ble Supreme Court in catena of judgments has held that if there is a personal knowledge of existence of narcotic substance in a property and the person has control over the same, even if he is not physically present, he is deemed to be in possession of the prohibited and contraband substance. Personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. To give an example, a person can conceal the prohibited narcotic substance in a property and move out thereafter but he would still be said to be in possession of the same. In the instant case, the applicant was in close relation to the co-accused and had allowed his car to be used by the co-accused at about 2AM in the night. The applicant thus had personal knowledge of the fact that the co-accused had possession of his car in the wee hours of the night and was using it for illegal purposes.
11. In the case at hand, the applicant, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment, it was found to be in his car in the possession of his cousin brother. The said person because of necessary animus, thus, would be said to be in possession of the concerned substance even if he was not, at the moment, in physical control.
12. It is to be noted that it is not in dispute that the applicant is the owner of the vehicle in question, wherefrom 75.309 kgs. of ‘Doda Chura’ was seized and the vehicle was under direct control of the accused petitioner. This fact clearly shows that the applicant had personal knowledge of existence of the contraband in his car on the particular date concerned and the intention, based upon personal knowledge, would constitute a unique relationship and manifest possession.
13. Owing to the fact, which is clinching and admitted to the applicant, i.e., recovery of huge commercial quantity of 75.309 kgs. dodha chura, recovered from the car in question, owned by the applicant; the applicant ought to have been in constant touch with the driver of the car, who is also his paternal uncle’s son.
14. At this stage, what is to be seen is whether there are reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further whether he is likely to commit an offence under the said Act or not, while on bail. A finding of the absence of possession of the contraband on the person of the applicant does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. In the instant case, there is a grave possibility that if the applicant-accused is released then he might run away and/or if there is any Untitled document further amount of contraband at his residence, he would appropriate that as well and he can thus not be absolved of any scrutiny with respect to the offence.
15. The knowledge of possession of contraband has to be ascertained from the facts and circumstances of the case. The standard of conscious possession would be different in case of public transport as opposed to a private vehicle with few persons known to one another. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Possession in a given case need not be physical possession but can be constructive.
16. Section 25 of the NDPS Act creates a vicarious liability against the person who is the owner or is having control of the property concerned and who knowingly permitted usage of such property for the commission of a crime under the Act. The applicant is in close relation with the co-accused and noted to had been in regular contact with the co-accused. Thus, the applicant ought to know about the doings of the co-accused and the fact that he still lent his vehicle to them points towards him having knowledge of the presence of contraband in his vehicle. Thus, it has to be presumed that possession of contraband substance recovered from the vehicle in question was conscious in nature unless the said presumption is dislodged by the applicant.
17. In the present case, the applicant having installed the possession of his vehicle to the co-accused for usage during the night hours is indicative of the fact that he had ‘knowledge’ of the purpose of usage of his vehicle, i.e., transportation of narcotics, thus the sine qua non for the applicability of section 25 of the Act is made out. The fact of handing over of the vehicle’s possession to the co-accused, which is also the offending vehicle, can by reasonable inference, fasten the applicant with the knowledge of its misuse by the driver-accused and others.
18. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. It is an admitted fact that the contraband substance seized is of commercial quantity and role of the applicant-accused is quite clear inasmuch as it appears that the present applicant is the registered owner of the offending vehicle from where contraband ‘Doda Chura” has been seized. Having regard to the contraband substance seized as aforesaid and provisions contained in Section 25, 35 and 37 of the NDPS Act it is not a fit case to enlarge the applicant on bail. Therefore, the applicant has no option but to obtain a verdict of either his innocence or involvement in the offence by following due procedure as laid down in law, since no exceptional circumstances has been pointed out by the learned advocate for the applicant.
19. The Hon’ble Apex Court in the case of CBI Vs. Dhan Singh, reported in (2003) 9 SCC 248, has observed in para No.4,5 and 6 as under:-
“4. On both counts the High Court is factually not correct. The respondent had been charged not only for offence under Section 20(b), but also for offence under Section 25 of the Act in terms of the order of the Special Judge dated 27-9-2001 whereby the charge has been amended. The maximum punishment of the offence of which the respondent had been charged was 10 years and not five years.
5. Section 37 of the Act is mandatory. Before grant of bail the ingredients mentioned therein are required to be examined and bail granted only when the applicant fulfils the conditions stipulated in Section 37. Section 37 was not at all adverted to by the High Court. We may note that the bail granted to the respondent by the Special Judge on 23-4-2001 was cancelled on 29-6-2001 by the Special Judge. Another bail application was rejected on 28-8-2001. On 8-10-2001, the High Court rejected the petition seeking bail. In the said order reference was made to the stringent provisions of Section 37 of the Act. Despite this background and without adverting to Section 37 the High Court decided to grant bail and we say no more, except that some irrelevant matters have been noticed in the order, namely, the respondent having telephone and ration card etc.
6. Under the aforesaid circumstances, we allow the appeal and set aside the impugned judgment of the High Court dated 29-1-2002 and direct that the respondent shall be taken into custody forthwith.”
As regards the orders referred by the counsel for the accused petitioner are concerned, there is no disclosure of facts and circumstances of the cases therein.
20. Having due regards to the contentions of the counsel appearing for the accused petitioner as well as learned Public Prosecutor, the provisions quoted in the foregoing paras and the case law referred, this Court is not inclined to enlarge the petitioner on bail and accordingly the bail application is dismissed.
21. However, in the interest of justice, it is expected from the trial court to expedite the trial as early as possible.
