Page No.# 1/5 GAHC010179102024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2639/2024 SHYAM LAL GUPTA S/O LATE MANIK CHAND GUPTA, R/O LALPOTTY, P.S.-HOJAI, DIST- HOJAI, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY, MS R DEKA,MR. I U CHOWDHURY Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 21.01.2025 Heard Mr. H.R.A. Choudhury, learned Senior counsel assisted by Mr. I.U. Chowdhury, learned counsel for the petitioner. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State. 2. By this bail application filed under section 483 of the Bharatiya Nagarik Page No.# 2/5 Suraskha Sanhita, 2023, the accused petitioner namely, Shyam Lal Gupta, has prayed for bail in connection with Special NDPS Case No. 38(H)/2024 (arising out of Hojai P.S. Case No. 530/2023) under Section 22(C)/29 of NDPS Act, pending in the court of learned Special Judge, Hojai. 3. The learned Senior counsel for the petitioner submits that the petitioner has been detained in custody since 17.02.2024. It is also submitted that after completion of investigation, police submitted charge sheet against the petitioner including three other co-accused persons and one Ainul Hoque shown as absconder. 4. It is further submitted that the petitioner has been falsely implicated in the present case and he is a businessman involved in the courier service industry, working with various agencies. During the investigation, the police found no incriminating evidence against the petitioner, leading to his release on PR bond, as indicated in the FIR. Furthermore, the petitioner had no knowledge of the contents of the goods inside the cartons, as these were sealed and the petitioner was not obligated to open it. 5. The learned Senior counsel for the petitioner further submitted that no prohibited psychotropic substance was recovered from the conscious possession of the petitioner. It was also noted that, out of the nine witnesses, only two witnesses have been examined so far, indicating that the examination of the remaining witnesses may take considerable time, and thus the trial is unlikely to conclude in the near future. In view of the acquisition spelt out against the petitioner as well as considering the period of detention, bail may be granted to the petitioner. 6. On the other hand, Mr. Kaushik, learned Additional Public Prosecutor for the State submits that commercial quantity of contraband was recovered in connection with this case. As the commercial quantity of contraband was Page No.# 3/5 recovered, Section 37 of NDPS Act is attracted here in this case. During investigation, it appears that the petitioner is very much involved in the alleged offence as such, considering the fact as well as the present status of the case, bail may not be granted to the petitioner at this stage of trial. 7. I have considered the submissions made by the learned counsel for the parties. I have also perused the scanned copy of trial court record. 8. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are : (i) The Prosecutor must be given an opportunity to oppose the application for bail; and (ii) There must exist 'reasonable grounds to believe' that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail. Based upon the precedents, the test which this Court is required to apply while granting bail is whether there are reasonable grounds to believe that accused is not guilty of such an offence and whether he is likely to commit any offence while on bail. 9. The knowledge of the possession of contraband has to be gleaned from the facts and circumstances of a case. This Court is cautious of the fact that physical possession means physical possession with animus, exercise of dominion and control as a result of concealment or personal knowledge as to existence of the contraband and the intention based on this knowledge. In order to appreciate the contentions raised by the learned counsel for the Page No.# 4/5 petitioner, it is important to refer to the observations of the Hon'ble Supreme Court in Madan Lal and Anr. v. State of Himachal Pradesh, (2003) 7 SCC 465, with reference to the concept of possession as occurring in Section 20 to 22 of NDPS Act. "20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession. 21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038 : AIR 1980 SC 52] to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes." 10. In the case in hand, the petitioner was arrested on 17.02.2024. Charge was framed on 12.11.2024 and thereafter, summons were issued to the witnesses. Admittedly, commercial quantity of contraband was recovered and seized in connection with this case from the office of the petitioner wherein he was the proprietor. Under such backdrop, it cannot be said that Section 37 is not invoked against the petitioner. Apart from that, out of nine witnesses, two witnesses have already been examined. It transpires that trial is progressing. 11. On consideration of the matter in its entirety, this Court is not inclined to grant bail to the accused/petitioner, at this stage of trial. Therefore, prayer for bail is rejected. However, trial court is directed to expedite the trial of the case. 12. In view of the above, the bail application stands disposed of. Page No.# 5/5 13. The observation made above, shall confine for the purpose of disposal of this bail application only and shall not in any way affect the proceeding of the trial. JUDGE Comparing Assistant