Siraj K vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioner is an accused along with one Nisha Dalal in FIR No. 30/2020, registered at Police Station, Bhuntar, District Kullu on 28.1.2020, under

Section 22 of the narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’).

As per prosecution, on 27.1.2020, at around 10:50 P.M. inspection of HRTC AC Deluxe Bus coming from Manikaran side and going on Delhi route

was carried out by a police patrolling party. Passenger on seat No. 33 namely Nisha Dalal appeared baffled. She was not answering properly to the

questions put to her by the police personnel . Getting suspicious, the patrolling party asked her to stand. While doing so, she threw a packet held by her

and tried to push it beneath the seat. Simultaneously, the bail petitioner occupying adjacent seat No. 34, also took out a packet from the pocket of his

shirt and threw it on the side. These packets were retrieved by the patrolling party. Search was carried out in accordance with law and all codal

formalities were completed.

According to the report of State Forensic Science Laboratory, Junga, District Shimla, the packet held by Nisha Dalal contained three inter locked

packets viz one containing 7 Lysergide (LSD) papers total weighing 0.56mg per 07 LSD square papers, second containing MDA (Tenamfetamine)

weighing 2.891grams and the third packet containing intoxicating extra C- 15 tablets with MDA weighing 6.660 grams. The packet thrown by the bail

petitioner contained 0.788 grams of MDA. The joint weight of MDA recovered from both the accused i.e. Nisha Dalal and bail petitioner was 10.339

grams which is more than commercial quantity of 10 grams notified under the NDPS Act.

Learned counsel for the petitioner forcefully submitted that the petitioner deserves to be enlarged on bail as it was not a case of joint possession but

of separate possession of contraband. The petitioner at best can be said to be in possession only of 0.788 grams of MDA. This has been vehemently

opposed by learned Additional Advocate General who contended that in the facts and circumstances of the case the recovery of contraband has to be

treated having been effected from the joint possession of both the accused.

I have gone through the record of the case placed on the file by the State. It will not be appropriate to refer in detail from the record at this stage

lest it may cause prejudice to the case of either of the parties. However, just sketch of facts which needs noticing at this stage is that statedly both the

accused were friends. Petitioner belonged to Kerala and the co-accused belonged to Delhi. They statedly started from Delhi to Kasol,District Kullu

along with one Farhan on 26.1.2020. They allegedly stayed in one room in a hotel at ‘Top’ District Kullu. Petitioner and co-accused left this

hotel for Delhi on 27.1.2020. After their arrest on 28.1.2020, both of them requested that information regarding their arrest be given to said Shri

Farhan, their common friend. NDPS carries reverse burden of proof. In view of rigors of Section 37 of the NDPS Act it is for the petitioner to prove

in accordance with law that it was not a case of joint possession of contraband by the accused persons but of separate possession. Learned counsel

for the petitioner at this stage submitted that he be permitted to withdraw this petition while granting him liberty to file appropriate bail application

afresh in accordance with law at an appropriate stage, if need so arises. Permission granted. Accordingly this petition is dismissed as withdrawn with

leave and liberty as prayed for.

It is made clear that observations made hereinabove be neither considered as findings nor as an expression on the merits of the matter. The

observations shall not even be adverted to by the learned trial Court.