IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3078 OF 2009 Santosh Pundlik Kale ..... ..... ...Applicant V/s The State of Maharashtra ..... ..... ...Respondent. Mr.A.P.Mundargi Sr. Adv. i/by Mr.Shounak Mehta, Adv. for the applicant. Mr.H.J.Dedhia, APP for the Respondent. CORAM: A.P.DESHPANDE, J. 24th July, 2009. PC: The present application is moved under section 439 of Criminal Procedure Code for bail in connection with Special Sessions Case No.2/09 for offence punishable under section 20(b) of Narcotic Drugs and Psychotropic Substance Act (NDPS Act) in CR No.11/09 registered with Pandharpur city police station. According to the prosecution the applicant was found to be in possession of 556 kg ganja stocked in gunny bags and aluminum tins, the value of ganja is stated to be Rs.5,59,000/- approximately. As he was found in possession of ganja he was arrested and is in custody since then. Deputy Superintendent of Police Smt. Dubule on receiving information relating to storing of ganja in a house in Shivdutt Nagar, Pandharpur caused a raid on the premise in the presence of panchas. Perusal of the complaint reveals that definite information was received that one Santosh Pundlik Kale had stored huge quantity of ganja at his residence for the purpose of sale. After obtaining search warrant the raiding party along with panchas reached near the house accompanied by photographer. The house open. The raiding party gave a call as to whether Kale stays at the said place?. On such inquiry being made a 30 year old person came out of the house and informed that he is Santosh 1 Pundlik Kale. The panchas and the police party informed him the purpose for carrying out the raid and inquired whether he has any objection to carry out the search. The said person agreed for the house being searched and did not object. He was informed that he can search the members of the raiding party. But he declined to do so. Hence raiding party entered the house. On entering the house on the southern side of the house they saw that there was a small tin shade room admeasuring 10 x 10 feet. In the said room ganja was stocked in gunny bags and aluminum tins weighing 556 kg as stated here in above. 2. In the above fact situation the learned senior counsel Shri Mundargi has contended that the prosecution has utterly failed to collect material with a view to connect the accused with possession of house/room wherein ganja was stored. It is submitted that in the absence of cogent material being produced by the prosecution the applicant cannot be said to have been in possession of contraband substance. Reliance has been placed on some of the judgments of this Court and the Supreme Court to contend that an accused need to be shown to be in conscious possession which element is absent in the present case. Needless to mention that the judgments relied upon are delivered after the conclusion of the trial and are judgments dealing with merit of the matter. Learned APP on the other hand invited my attention to the provisions of section 37 of the NDPS Act which limits power of the Court in granting bail in relation to the offences under the said Act. The applicant’s prosecution is under section 20(b) of the Act. Section 37 which begins with a non obstante clause overrides the provisions of the Criminal Procedure Code. The quantity involved in the present case is commercial quantity. The prosecutor has opposed the grant of bail. The accused, under the said section, can only be released on bail subject to satisfaction of two conditions viz; (i) An opportunity to be made available to prosecution to oppose the application, which is obviously complied with and (ii) the Court need to be satisfied that 2 there are reasonable grounds for believing that the accused is not guilty of offence and further that the accused is not likely to commit any offence when released on bail. Having regard to the facts and circumstances it is difficult to record a finding that there exists reasonable ground for believing that the applicant-accused is not guilty of the offence solely because an issue is raised in regard to possession of the accused of the house in question. It is also not possible to record a satisfaction that if released on bail the applicant will not commit an offence. In that view of the matter the present application for bail is rejected. 24.7.2009. 3