Orissa High Court: In a bail application under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) for the offence under Section 20(b)(ii)(c) read with Section 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), Sashikanta Mishra, J. rejected the application for large quantity of contraband seized.
In the matter at hand, it was alleged that the applicant, along with five others was transporting contraband ganja, weighing around 476 kgs to the State of Punjab. The applicant’s case was that she is a gypsy and nomadic migrant selling plastic utensils and has five children. She stated that she had taken a lift in the pick-up van and as such was sitting beside the driver along with five others. The applicant has been in custody for more than two years, hence, the present application.
The Court noted that six persons were apprehended, out of whom, all the other five persons excluding the driver, belonged to the State of Punjab. Therefore, the Court said that it is difficult to accept that the present applicant had taken a lift on the vehicle, rather the presence of other members with her in the same vehicle supported the prosecution’s story regarding transportation of contraband to the State. Further, the Court said that constructive possession cannot be ruled out prima facie, as the contraband was seized from the vehicle. The Court explained that the case in hand was completely different from Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC 352, as the contraband was not seized from the petitioner (Mohd. Muslim) but from the co-accused persons and he was implicated co-accused person’s statement and on his own confessional statement. The Supreme Court was inclined to grant bail to the petitioner in Mohd Muslim as he was in custody for more than 7 years and 4 months and trial was progressing slowly.
The Court held that the case cannot be falsified in its entirety as other witnesses were yet to be examined and the witnesses’ examined so far have not supported the applicant’s case. Thus, keeping in view the large quantity of contraband seized, the Court refused to grant bail to the applicant. Hence, the application was rejected.
[Bama Devi v. State of Odisha, Bail Application No. 5492 of 2023, Decided on 22-11-2023]