1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.1161 OF 2010 Dinesh s/o Subhala Barela ...Applicant VERSUS The State of Maharashtra ...Respondent ..... Shri C.R. Deshpande, Advocate for the applicant Shri P.P. More, A.P.P. for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 23rd April, 2010. PER COURT : 1. Heard Mr. C.R. Deshpande, learned counsel for the applicant as well as heard Mr. P.P. More, learned A.P.P. for the respondent. 2. This is an application preferred by the applicant, 2 seeking bail in connection with Crime No.3003/2010, registered with Chopda Town Police Station, District Jalgaon, for the offences punishable under Sections 8, 20 and 22 of Narcotic Drugs and Psychotropic Substances Act, since the applicant was arrested thereunder on 18.1.2010 and is under judicial custody presently. 3. At the outset, the applicant had preferred two bail applications before the learned Additional Sessions Judge, Amalner, but same were rejected by the said Court. 4. It appears that, the offence has been registered on the complaint lodged by the complainant namely Dipak Manikrao Lagad on 18.1.2010, alleging that, a secret information was received on 18.1.2010 that a white Fiat car bearing registration No.MH-12/P-3593 containing the contrabands “Ganja” will be proceeded through Yawal-Chopda Road for the sale of said Ganja. Accordingly, the necessary formalities were completed by the investigating agency i.e. Local Crime Branch, Jalgaon and panchas and photographer were called to the office and the members of raiding party collected weighing scale, sealing wax, candle, match box, thread, plastic bag etc. and made station diary entry to that effect as well as reduced into writing the said information and informed the same to superiors and thereafter proceeded for the 3 raid to the said spot at about 9.00 a.m. and arrived at Yawal Road and stopped at 3 Kms. from Chopda at the side from Yawal Road and laid a trap at the said place. As per information, a Fiat car bearing Registration No. MH-12/P-3593 arrived at the said spot and, therefore, same was halted and taken to the side. The said complaint recites that, there were two persons in the said car, out of them one was driver thereof. Hence, the members of raiding party made enquiry with them that what was contained in the said car. Thereupon, they stated that there was nothing in the said car and they were proceeding to a town. However, the members of raiding party noticed two white colour gunny bags on the rear side seat in the said car. Hence, the members of the raiding party informed the said two persons that they wanted to conduct search thereof and they gave offer to them whether the said search should be conducted before superior officer or Magistrate, but thereupon, they declined therefor. Hence, the members of raiding party conducted the search of the said two gunny bags, which were kept on the rear side seats in presence of panchas as well as took search of four plastic bags kept in the dickey of the said car. There was strong smell to the said substance contained in the said bags. Hence, members of raiding party asked about the contents in the said gunny bags to the said two persons. Thereupon, they stated that it was a fodder for animals. Moreover, on enquiry with the said 4 persons, they gave their names as Dinesh Subhala Barila i.e. the applicant herein and Dilip Champalal Barila i.e. Driver of the said car. On conducting the search of the above referred gunny bags and plastic bags in presence of panchas, it found to contain Ganja in the said six bags, it was weighed and weight thereof was 80 Kgs. Moreover, the members of raiding party separated samples of 100 gms. each from the said seized quantity of Ganja and the said sample packets were packed and the labels under signature of panchas were seized as well as remaining quantity of Ganja was also packed under the labels and signature of panchas and same was seized in presence of the aforesaid panchas. Sample packets as well as bulk quantity bags were seized under the seizure panchanama in presence of panchas and the applicant as well as the driver who were found in the said car were taken into custody after observing the necessary formalities under the N.D.P.S. Act. 5. On the aforesaid background, the learned counsel for the applicant canvassed that, applicant herein was a mere passenger in the said car and he was not aware about the contents in the said car. In substance, it is the contention of the applicant that he was not in conscious possession of the alleged contrabands i.e. Ganja. To substantiate the said contention, the learned counsel for the applicant placed reliance upon the 5 observations made in the order passed in Bail Application No. 2338/2004 on 4.3.2005 in the case of Kamaljeet Singh Vs. Sh. H.K. Pandey (Intelligence Officer, NCB), by Hon’ble Shri Justice Badar Durrez Ahmed of Delhi High Court, in which it is held in paragraph Nos.15, 16 and 17 as under : “15. Of course, these are all materials which will have to be gone into at the stage of trial. However, when an application for bail is under the consideration of this Court and the rigours of Section 37 of the NDPS Act are attracted, it is incumbent upon this Court to examine as to whether there exist or do not exist reasonable grounds for believing that the petitioner is guilty of the offence charged. This consideration has to be on the basis of the materials available on the date on which the application for bail is considered. Moreover, the satisfaction recorded by the Court at this stage is only a prima facie view and would not affect the consideration of the case by the trial Court. 16. Looking at the entire factual material, as indicated above, it does appear that apart from the so called confessional statement and the admission that one packet was recovered from under the seat on which the petitioner was seated in the said Maruti 800 vehicle, there is no other evidence available with the prosecution. The so called confessional statement, at 6 this stage, does not appear to me to be a confession at all. In fact, the statement discloses that the petitioner did not know of the contents of the packet. 17. This being the case, it does appear that the petitioner was not in conscious possession of the said contraband. Therefore, I am satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offences for which he has been charged. As regards the question as to whether he is likely to commit any offence while on bail, no circumstance has been brought to my notice which would indicate that there is such a likelihood. It is also not the case of the State that the petitioner has been involved in any other NDPS related cases. In this view of the matter, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs.50,000/- with two sureties of the like amount to the satisfaction of the concerned trial Court.“ 6. Relying upon the observations in the aforesaid ruling, the learned counsel for the applicant urged that it is incumbent upon the Court to examine as to whether there exists or do not exist reasonable grounds for believing that he is guilty of the offence charged, on the basis of material available and collected by the investigating agency, at the time of bail. The learned counsel 7 for the applicant submitted that, since he was not in conscious possession of the contrabands, there do not exist reasonable grounds for believing that he is guilty of the charge. 7. While opposing the present application by learned A.P.P. vehemently, the learned A.P.P. submitted that the facts and circumstances in the present case and the facts and circumstances in the case before Delhi High Court differ from each other since there was the confessional statement in the case in the hands before Delhi High Court, but so is not the position in the instant case. The learned A.P.P. also submitted that, the complaint reflects that on enquiry with the applicant and the driver about the contents in the said car after accosting them, they gave false and evasive replies that there was nothing in the car, but on search in presence of panchas, the car found to contain in all six bags containing contrabands i.e. “Ganja” therein. Moreover, the learned A.P.P. also pointed out that the contents of the said gunny bags had strong smell and, therefore, enquiry was made by the raiding party with the applicant and the driver as disclosed in the said complaint, but thereupon they stated that it was the fodder for the animals which was the false answer and after search, the said bags found to contain the contrabands Ganja, weighing 80 Kgs. and accordingly, the learned A.P.P. submitted that, the conduct of 8 the applicant and driver speaks volumes for itself. Moreover, the learned A.P.P. also submitted that, the investigation is under progress and same has not been completed and the offence is of serious nature and even it is anti-social and, therefore, the application preferred by the applicant for bail deserves to be rejected. 8. On perusal of investigation papers and also after considering the rival submissions advanced by both the learned respective counsel for the parties, at the outset, it is apparent from the complaint that the applicant was found in a private Fiat car containing contrabands i.e. Ganja and admittedly it was not the passenger car or public vehicle. Moreover, when the members of raiding party made enquiry with the applicant and driver, as stated in the complaint, it appears that they gave false and evasive replies as mentioned hereinabove. In fact, applicant had an opportunity at that time itself to state that he was a mere passenger, but the contents of complaint are silent about the same and, therefore, it is apparent that the applicant did not disclose his identity at that time itself that he was a mere passenger in the said car. Moreover, sight cannot be lost of the aspect that Ganja weighing 80 Kgs. i.e. commercial quantity was found in the said car, wherein applicant was also found. 9 9. As regards the observations made by the Hon’ble Shri Justice Bader Durrez Ahmed of Delhi High Court, in the aforesaid order passed on 4.3.2005, in the aforesaid application, and the contention of the applicant that he was not in conscious possession of the aforesaid contrabands i.e. Ganja, it is apparent as mentioned hereinabove that the applicant had an opportunity to disclose his identity that he was a mere passneger in the said car, but so was not availed by him at that time itself since there is no whisper in the complaint about the same and, therefore, the observations made in the said order cannot be of any aid and assistance to the applicant in the present matter. Besides that, there was confessional statement in the said case, but so is not the position in the instant case and, therefore, it is apparent that the facts and circumstances in the said case and facts and circumstances in the present matter differ from each other and ultimately, cannot come to the rescue of the applicant in the present matter. 10. Moreover, the investigation is still under progress and same has not been completed so far. So also, the allegations made against the applicant are of serious nature and considering the nature and gravity of the offence, it is apparently anti-social 10 offence, it is apparent that the applicant has failed to make out a case for grant of bail at least at this stage and, therefore, present application deserves to be rejected. 11. Thus, having the comprehensive view of the matter and after considering the material on record, prima facie, I am satisfied that there exists reasonable grounds for believing that the applicant is guilty of the offence for which he is charged, and hence, present application, being devoid of any merits, stands dismissed. 12. Needless to say that, the aforesaid observations are prima facie in nature and shall not come in way of any Court while deciding the matter on merits. (SHRIHARI P. DAVARE) JUDGE fmp/cri1161.10