Title: Muhammaed Tayyab Shaikh S/o Muhammad Nihal Shaikh Versus Union Of India
Decided on: 22th September, 2023
R/CRIMINAL MISC.APPLICATION NO. 11079 of 2023
CORAM: Hon’ble Justice Umesh A. Trivedi
Facts of the Case
Based on previous information, the Narcotics Control Bureau, Ahmedabad Unit, conducted a search near Adalaj Toll Plaza in a Traveller Bus travelling from Delhi to Mumbai. This resulted in the seizure of 6.359 kg of Charas, a commercial quantity from the joint possession of the present applicant and other co-accused, which was discovered from a red-colored bag. Both individuals were discovered to be on the bus, but were later placed under arrest when it was discovered that they had concealed contraband in their hands.
In response, the Narcotics Control Bureau Officers conducted an investigation and eventually filed a complaint against both of them.
Courts analysis and decision
The Court observed, “there is a presumption of ‘culpable mental state’, when the accused is found in possession of commercial quantity of Charas under Section 35 of “the Act”, coupled with the ‘presumption from possession of illicit article’, as provided under Section 54 of “the Act”
The court addressed the applicant’s attorney’s contention that it was improper to identify the accused using photos in lieu of a test-identification parade and declared that the accused’s identity was not in doubt in this particular situation. Two witnesses saw the accused being arrested on the scene while in possession of a commercial amount of Charas. Any subsequent picture identification that was done was just done for confirmation and was approved.
Additionally, the Court said, “If seat number or berth number, where applicant and other co-accused were travelling, is not mentioned in the panchanama, it will not render presumption of a commercial quantity of Charas from the joint possession of both the accused invalid, which is seized in presence of two panchas.”
The Court emphasised that any matters pertaining to outward or inward numbers must be resolved during the trial because these technicalities have no bearing on the main issue of the accused’s possession of a commercial quantity of Charas, which is that secret or prior information must be recorded in writing as required by law.
The single bench made it clear that the Narcotics Control Bureau (NCB) does not meet the criteria for being a police station when granting bail to an accused person under the NDPS Act. As a result, an accused person cannot request bail on the grounds that the agency neglected to record sensitive information in the general journal.
Further the Court stated, “I am unable to record the conclusion that he is not guilty of an offence under “the Act” and will not commit any offence if released on bail. In view thereof, I am unable to exercise discretion releasing the applicant on bail and it is hereby rejected.”
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Written by- Aashi Narayan
