Criminal Misc. No. M-14756 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-14756 of 2009 Date of Decision:27.10.2009 Harchand Singh @ Jhanda .....Petitioner Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. D.S. Pheruman, Advocate for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab. **** HARBANS LAL, J. This petition has been moved by Harchand Singh alias Jhanda under Section 439 of the Code of Criminal Procedure seeking his regular bail in case FIR No.5 dated 3.3.2009 registered under Sections 21, 25, 29, 61, 85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, `the Act') at Police Station S.N.C. Punjab, Amritsar. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. D.S. Pheruman, Advocate appearing on behalf of the petitioner eloquently urged that as per allegations in the FIR, no objectionable item was recovered from the petitioner, who was simply sitting on the motor-cycle and that being so, the Court below was not Criminal Misc. No. M-14756 of 2009 -2- justified in declining the prayer for regular bail. He has sought to place abundant reliance upon the observations rendered by the Apex Court in re: Narcotics Control Bureau, Jodhpur v. Murlidhar Soni and Others, 2004(2) Recent Criminal Reports (Criminal) 900. As against this, the learned State Counsel maintained that the petitioner as well as Narwair Singh co-accused were waiting for the person to whom the heroin in their possession was to be supplied and that being so, the conscious possession of the petitioner is established. I have well considered the rival contentions. The allegations in the FIR are that on catching sight of the police party, the petitioner who was seated on the motor-cycle made an attempt to start the motor-cycle whereas his co-accused Narwair Singh alias Nella, who was standing nearby the motor-cycle started proceeding briskly with the handbag, which he was holding in his hand. Of course as per allegations, no objectionable item was yielded from the personal search of the petitioner but it is not to be lost sight of the fact that it transpires from a careful reading of the entire gamut of the FIR that the petitioner along with his co-accused had come on the motor- cycle carrying 2 kilograms of heroin and they were waiting for the person to whom the same was to be supplied. It gives an inkling that contents of the bag, i.e. heroin, were also within the knowledge of the petitioner. To the query, the learned counsel for the petitioner could not convince the Court as to for what reason, the petitioner was standing with motor-cycle along with his co-accused and waiting for someone. Learned counsel for the petitioner could not give any satisfactory explanation for his being present at the spot along with his co-accused. In re: Murlidhar Soni Criminal Misc. No. M-14756 of 2009 -3- and Others (supra), 2.41 Kgs. of heroin was recovered from two accused persons. Their statements under Section 67 of NDPS Act were obtained under duress. The injuries were found on their person which were caused by the investigating agency. Thus, facts of that case are distinguishable from the one in hand. As observed by the Apex Court in re: Megh Singh v. State of Punjab, 2003(4) Recent Criminal Reports (Criminal) 319, “the words “conscious possession” means awareness about a particular fact. It is a state of mind which is deliberate or intended.” As observed in re: Gunwantlal v. The State of M.P., AIR 1972 Supreme Court 1756, “possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.” Section 37 of the Act reads as under:- “[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 for [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 Criminal Misc. No. M-14756 of 2009 -4- 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.] Herein this case, there is nothing on the record to satisfy the Court that there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail. Sequelly, this petition is dismissed. October 27, 2009 ( HARBANS LAL ) renu JUDGE