Case Note & Summary
The petitioner, Mr. Sayyad Mohammad @ Nasim, filed a successive bail petition under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail in Crime No.30/2021 registered by the Economic and Narcotic Crime Police Station, Mangaluru City, for offences punishable under Sections 8(c) and 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), Sections 4 and 25(1B)(b) of the Arms Act, 1959, and Section 201 read with 34 of the Indian Penal Code, 1860. The petitioner was accused No.5 and had been in custody for 1 year and 7 months. His earlier bail petition (Crl.P.No.3484/2022) was rejected on 07.06.2022 with liberty to approach the court after receipt of the FSL report. The FSL report was subsequently received, prompting the present petition. The prosecution's case involved the seizure of 60 kilograms of ganja from a car and 217.740 kilograms from a lorry. The petitioner was allegedly present in the car, but the ganja was found in the dicky, not in his conscious possession. The petitioner's counsel argued that the petitioner was not the owner of the car or lorry and had no connection with the larger seizure. The State opposed bail, citing the commercial quantity of ganja and the presumption under Section 37 of the NDPS Act. The court, after hearing both sides, noted that the FSL report did not directly implicate the petitioner and that the petitioner had been in custody for a substantial period. The court held that the petitioner was not in conscious possession of the contraband and that the rigors of Section 37 were not attracted. Consequently, the court allowed the petition and granted bail to the petitioner on certain conditions, including furnishing a bond of Rs.2,00,000 with two sureties, reporting to the police station once a month, and not tampering with evidence or leaving the jurisdiction without permission.
Headnote
A) Criminal Procedure Code - Bail - Successive Bail Petition - Section 439 CrPC - The petitioner, accused No.5, sought bail after earlier rejection, with liberty to approach after FSL report. The court considered the FSL report and the fact that the petitioner was not in conscious possession of the contraband found in the car's dicky, and granted bail subject to conditions. (Paras 1-6) B) Narcotic Drugs and Psychotropic Substances Act - Conscious Possession - Sections 8(c), 20(b)(ii)(c) - The court held that the petitioner, being a passenger in the car, was not in conscious possession of the ganja kept in the dicky, and the presumption under Section 37 was not attracted as the FSL report did not directly implicate him. (Paras 4-6)
Issue of Consideration
Whether the petitioner is entitled to bail under Section 439 CrPC in a case involving commercial quantity of ganja under the NDPS Act, given the FSL report and long incarceration.
Final Decision
The petition is allowed. The petitioner is ordered to be released on bail on executing a bond of Rs.2,00,000 with two sureties, subject to conditions including reporting to the police station once a month, not tampering with evidence, and not leaving the jurisdiction without permission.
Law Points
- Bail under Section 439 CrPC
- Successive bail petition
- Conscious possession under NDPS Act
- Commercial quantity presumption under Section 37 NDPS Act
- FSL report relevance
