The Gujarat High Court denied bail to an accused under the NDPS Act, emphasizing that NCB isn't a police station, preventing bail claims related to unrecorded confidential data in the general diary.
Justice Umesh A. Trivedi noted that the Narcotics Control Bureau isn't considered a police station and doesn't maintain such diaries for recording information. Therefore, recording cognizable offense details in a police station is irrelevant for a bail application.
The case centered on a seizure by the NCB's Ahmedabad Unit near the Adalaj Toll Plaza. Acting on prior information, authorities searched a Traveler Bus traveling from Delhi to Mumbai. This operation led to the confiscation of 6.359 kilograms of Charas, considered a commercial quantity. The contraband was found in a red bag with a specific identification mark, jointly possessed by the applicant and other co-accused, as specified in the panchnama.
Both individuals were apprehended when they couldn't explain the contraband in their possession. Following this, NCB officers launched an investigation, resulting in a formal complaint and the registration of an NDPS Sessions Case in the District and Sessions Court, Gandhinagar.
The applicant's lawyer argued that NCB officers should record information about cognizable offenses in a general diary, station diary, or daily diary as per para 120.8 of the Lalita Kumari v. Govt. of U.P. & Ors. case, reported in (2014) 2 SCC 1, when such information is received in a police station.
Upon thorough examination of the arguments from both sides' advocates and a review of the complaint and documents presented by the applicant's attorney, the court concluded that the seizure of 6.359 kilograms of Charas from a bag carried by the applicant and a co-accused demonstrated joint possession.
The Court noted that the bag held clothing belonging to both individuals and a commercial quantity of Charas, as corroborated by the panchnama. Consequently, the court determined that the applicant could not be considered innocent and was likely culpable under the Act.
In response to the applicant's counsel's objection regarding the use of photographs for identification without a test-identification parade, the court clarified that the identity of the accused was not in dispute. The accused was apprehended on the spot with a commercial quantity of Charas, and this was witnessed by two individuals. Any subsequent photo identification was conducted for confirmation purposes and was considered valid.
Furthermore, the Court emphasized that the absence of seat or berth numbers in the panchnama, where the applicant and the co-accused were seated during travel, would not undermine the presumption of a commercial quantity of Charas in their joint possession. This presumption remained valid, especially when the substance was seized in the presence of two witnesses.
The Court further clarified, "However, the specifics of what should be included in the panchnama and whether it was adhered to during the seizure will be established during a full-fledged trial. In that process, the applicant-accused will have the opportunity to cross-examine the panch-witnesses regarding any deficiencies in the panchnama, if they exist."
The Court also discussed the absence of outward/inward numbers and the absence of a higher officer's seal on the loose piece of paper containing the prior/secret information. It stressed that the law mandates the written recording of secret/prior information, and any concerns about outward or inward numbers should be addressed during the trial. These technicalities do not impact the primary issue of the accused's possession of a commercial quantity of Charas.
Moreover, the Court emphasized the legal presumption of a guilty state of mind when an accused is discovered with a commercial quantity of Charas, as per Section 35 of the relevant Act. It also acknowledged the presumption that arises from possession of an illicit article under Section 54 of the Act, placing the burden of disproving this presumption on the accused.
Taking into account the presence of a commercial quantity of Charas in the possession of the applicant, even jointly with a co-accused, the Court determined that it couldn't establish the applicant's innocence under "the Act." It also concluded that granting bail to the applicant wouldn't eliminate the risk of further offenses.
TAGS: seizure Charas joint possession identity photo identification panchnama secret information trial .
