Kharaiti Lal vs State of Punjab

N.K. Kapoor, J.

Petitioner seeks grant of bail in a case registered under Sections 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act.

As per complaint dated 6.9.1996 filed by the Seizing Officer it reveals that in pursuance of a secret information it came to light that petitioner alongwith Gurmit Singh is involved in illegal drug trafficking and exchange of foreign currency. Consequently, a raid was conducted at the premises known as M/s Kartar Fashion Wearing, Rainak Bazar, Amritsar. Recovery of Rs. 4 lacs Indian currency and foreign currency equivalent to Indian currency of Rs. 17,000/ and two packets containing 400 grams of brown sugar from the flush to Toilet in the first floor of the business premises was made. Statement of Kharaiti Lal under Section 108 of the Customs Act was recorded. At the time of search petitioner who is stated to be the Manager was found present at the shop and so the recoveries are effected in his presence.

Praying for the grant of bail the learned counsel for the petitioner has argued that premises from which the alleged recovery of brown sugar has been effected by the Custom authorities is in fact owned and possessed by Gurmit Singh whereas the petitioner is only a Manager in the business of exchange of foreign currency only and so the recovery of brown sugar from the flush of Toilet in the first floor of the business premises cannot be thrust upon the petitioner. Petitioner cannot be said to be in conscious possession of this banned article as the same has no connection with the business of exchange of foreign currency. Moreover, the status of the petitioner is that of a Manager and so at best; case, if any, could be made against Gurmit Singh alone.

Counsel for the respondent on the other hand argued that petitioner alongwith Gurmit Singh is in illegal trade of banned articles like the brown sugar besides violating the provisions of Foreign Exchange and Regulation Act. It is on the basis of secret information that a raid was conducted at the premises which was in exclusive possession of the petitioner and Gurmit Singh. At the time of raid petitioner as well as son of Gurmit Singh were found present and on search a sum of Rs. 4 lacs Indian currency and foreign currency equivalent to Indian currency of Rs. 17,000/ and two packets of 400 grams of brown sugar were recovered from his possession. Petitioner''s statement was recorded in terms of Section 108 of the Customs Act wherein he has specifically admitted that two packets were recovered from the flush tank of the latrine which contained brownish powder. This recovery was effected in my presence. Petitioner describes himself to be the Manager appointed by Gurmit Singh whereas in his statement under Section 108 of the Customs Act he admits that he has 50% share in the business which is being carried out in the premises from which the recovery is stated to have been effected. Thus, in the context of the present case the petitioner had physical control of the premises and so the things recovered would be deemed to be in his possession in law. As per Section 25 of the NDPS Act any person, be it as owner or occupier or having the control or use of any house owned, enclosure, space etc. too is liable to be punished in case such premises is being put to use for commission of an offence. So, the argument of the learned counsel for the petitioner that petitioner had no knowledge of these articles is wholly mis placed. Since the recovery has been effected from the premises in his exclusive possession, petitioner is per se guilty of the crime and in view of Section 37 of the Act does not deserve the concession of bail.

Having heard the learned counsel for the parties, I am of the view that the petitioner does not deserve the concession of bail. Petitioner is accused of having committed an offence in terms of Sections 21, 25 and 29 of the NDPS Act. On a search conducted by the Custom authorities, petitioner was found to be in possession of foreign currency as well as two packets of brown sugar stealthily kept in a flush of a latrine. Admittedly, the premises in dispute was in exclusive possession of the petitioner and his partner Gurmit Singh. At the time of raid petitioner was found to be present. In a statement recorded under Section 108 of the Custom Act, the factum of recovery of brown sugar as well as money in rupees and foreign currency was admitted by the petitioner.

The sole plea advanced by the petitioner is that since he was only a partner with Gurmit Singh in the business of exchange of foreign currency, a packet or two of banned article kept stealthily in a flush of a latrine and recovered could not be fastened upon the petitioner so as to make him liable for the offence as he could not be said to be in conscious possession of the banned article. According to the learned counsel for the petitioner his status is only that of a partner whereas ownership and possession in law vest in Gurmit Singh. Question of ownership is not relevant as even an occupier can be held to have committed the offence. Occupier in common parlance is a person, who is in occupation of a premises and has a right to use the same. In the context of the present case admittedly the petitioner and Gurmit Singh are stated to be in possession of the premises which according to the petitioner is being used primarily for a business of exchange of foreign currency. Even if it be taken that ostensibly the petitioner alongwith Gurmit Singh set up the aforesaid business any recovery of the banned article from the premises which is in their exclusive occupation would be prima facie sufficient to charge them of having committed offences under Sections 21, 25 and 29 of the NDPS Act.

Delay in lodging of the FIR too would not be valid ground to grant bail in view of the mandate of Section 37 of the Act.

I also do not find much substance that petitioner deserves to be enlarged on bail on account of physical infirmity. Sessions Judge while examining the petitioner''s plea of being an infirm man has dilated upon the same by making reference to the deposition of Dr. A.S. Saini and also the fact that petitioner had a fractured bone even at the time of his arrest. According to the learned Sessions Judge as per opinion of the doctor the petitioner can easily be treated in the jail hospital and so this ground is nothing but a ruse to get the concession of bail. On examining the matter in entirity, I also find no substance in this plea of the counsel that petitioner be granted bail on account of his back bone problem.

Dismissed.