IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION ( BAIL ) NO. 262 OF 2010 MR. RAKESH SHANKAR DAS, PRESENTLY IN JUDICIAL LOCK-UP ... Applicant Versus STATE REP. BY OFFICER IN CHARGE, ANJUNA POLICE STATION AND ANR., ... Respondents Mr. K. Poulekar, Advocate for the Applicant. Mr. C.A. Ferreira, Public Prosecutor for the Respondents. Coram:- N. A. BRITTO, J. Date:- 16th December, 2010 P.C.: Heard Shri Poulekar, learned Counsel on behalf of the applicant and Shri C.A. Ferreira, learned Public Prosecutor on behalf of the respondents. 2. The applicant herein along with one Mushtaq Ahmad are facing trial in Special Criminal Case No.22/2010 under Section 20(b)(ii)(C) r/w Section 29 of the NDPS Act, 1985. Charge is already framed against them. Applicant's application for bail was first rejected by order dated 15/05/2010 and then by order dated 13/10/2010 and, as such, the applicant has filed the present application for bail. 3. The learned Special Judge of NDPS Court in rejecting the first application for bail by order dated 15/05/2010 observed that in this case, there was evidence to indicate that the applicant and the said Mushtaq Ahmad were proceeding on one scooter and upon seeing the Police Jeep, both of them started running away. There is also evidence to indicate that the bag carried by the said Mushtaq Ahmad contained 1123 gms of charas which is apparently a commercial quantity. Thus, there was prima facie evidence to indicate that the applicant was in conscious possession of the commercial quantity of charas which was in possession of Mushtaq Ahmad and, hence, the rigor of Section 37 of the said Act will apply in this case. 4. Shri Poulekar, the learned Counsel appearing on behalf of the applicant submits that the story of the prosecution that on seeing the police party both the accused stopped their motorcycle and started running appears to be improbable for the accused would have escaped much faster on the motorcycle itself. Learned Counsel next submits that in case both the accused were apprehended within the distance of about 50 metres, the police party could not have taken about 15 minutes from 13.45 hrs. to 14.00 hrs. Next, learned Counsel submits that the facts disclosed that the other accused Mushtaq Ahmad was in possession of the said bag containing charas and as such no offence was made out against the applicant. 5. Shri Ferreira, the learned Public Prosecutor on the other hand submits that whether the story of the prosecution is probable or not can only be tested at the trial of the case and for the present it is to be accepted, as stated by the prosecution, without going into the merits of the case. Learned Public Prosecutor further submits that the fact that both the accused started running on seeing the police party would clearly disclose that both were of conscious possession of the said charas which was actually in the hands of the said Mushtaq Ahmad. Learned Public Prosecutor has placed reliance on the decision of State of Punjab V/s. Lakhwinder Singh & Anr. (2010 (4) SCC 402). That was a case where a man and the woman were found sitting on some plastic bags and on seeing the police party they tried to hide themselves behind the said bags. The said bags contained poppy husk and, in the circumstances, the Apex Court held that their conduct of hiding behind the bags showed their guilty mind. 6. At this stage, it is not necessary to go into the probative value of the statement of the Police Inspector and the other members of the raiding party. The fact remains as stated by them that on seeing the police party both the accused started running away and then were subsequently apprehended by the police. It is true that it is the said Mushtaq Ahmad, who was actually carrying the said bag containing charas while the applicant was driving the scooter. Their conduct of running away, on seeing the police party is, sufficient to infer at this stage that both of them were carrying the said contraband article which is of commercial quantity and, therefore, as noted by the learned Special Judge the rigors of Section 37 of the Act would apply to the case of the applicant as well. Their conduct of running away shows their guilty mind. 7. There is no merit in this application and, consequently, the same is hereby dismissed. N. A. BRITTO, J. NH