Page No.# 1/7 GAHC010013842025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./189/2025 SRI BIPLAB MAZUMDER @ BIPLAB MAZUMDER S/O BABUL MAZUMDER @ BABUL MAJUMDER R/O VILLEKINPUR P.S.PRBARI,DIST.SOUTH TRIPURA, TRIPURA, PRESENT ADDRESS-DTDC TRANSPORTER, HATKHOWAPARA P.S.AZARA, DIST.KAMRUP(M), ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K DAS Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 18.02.2025 1. Heard Mr. B. K. Mahajan, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State respondent. Page No.# 2/7 2. This is an application under Section 483 of the BNSS, 2023 has been filed by the petitioner, namely, Sri Biplab Mazumder @ Biplab Majumder, who has been detained behind the bars since 12.01.2025 (for last 40 days) in connection with Azara P.S. Case No. 06/2025 under Section 22(c)/29 of the NDPS Act, 1985. 3. The gist of accusation in this case is that, on 10.01.2025, one Shri Hiren Gogoi, SI of Azara police station lodged an FIR before the Officer-In- Charge of Azara Police Station, inter-alia, alleging that on receipt of an information through reliable sources, the few bags and cartons of containing suspected narcotic drugs were kept in DTDC apex warehouse at Hatkhuwapara for illegal transportation, a police team was constituted to conduct the search. Accordingly, at about 6.45 pm, the search was conducted in the DTDC warehouse Hatkhuwapara. 4. During search, a few bags and cartons containing suspected phensedyl cough syrups and yaba tablet were recovered there from. 5. It was found that the recovered items were received from Patna, Bihar through courier service for onward transmission to Shillong. Thereafter, the petitioner who is the Operational Manager of DTDC warehouse was apprehended. It was found that the total quantity of codeine phosphate phensedyl cough syrup were 2300 bottles and the Yaba tablets were kept inside 40 different packets purported to be packets of turmeric (18 kg). 6. Mr. B. K. Mahajan, the learned counsel for the petitioner has submitted that the petitioner is a senior supervisor employed with DTDC Express Ltd. and is presently working at DTDC apex warehouse situated at Page No.# 3/7 Hatkhuwapara, Azara. 7. It is further submitted that the warehouse is a transit hub where the on transit items are kept and the petitioner's duty was only of receiving and forwarding the consignment as per the set order and it is not expected of the petitioner to know the contents of the consignments as same are kept in sealed condition. 8. The learned counsel for the petitioner has submitted that the five consignments were booked at Vijay Nagar DTDC, Patna by channel partner of DTDC namely, Nandan Kumar, who is having a registered firm namely ATN Enterprise & Fashion World. Out of these five consignments, 4 were to be sent to Shillong and 1 consignment was to be sent for to Dimapur. The consignments were booked as food items only and therefore, the petitioner was not expected to know the contents of the consignment beyond what has been described in the booking orders. 9. The learned counsel for the petitioner has submitted that though, the seized items were recovered from the warehouse of which the petitioner is a senior supervisor. However, he was unaware about the contents of the seized cartons and bags and therefore, he was not having the animus of possessing any contraband articles. He submits that mere custody without awareness of about the content of the items possess would not mean a conscious possession. 10. In support of his submission, he has cited a ruling of a division bench of this court in the case of “Vishwanath Pratap Singh and another versus state of Assam and Another” reported in 2021 SCC Online GAU 2336. Page No.# 4/7 11. On the other hand, Mr. D. Das, the learned Additional Public Prosecutor has opposed the grant of bail to the present petitioner on the ground that the quantity of seized contraband is of commercial quantity and therefore, embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 12. He has produced the case diary of Azara P.S. Case No. 06/2025 and has submitted that there are incriminating materials in the case diary against the present petitioner. 13. I have considered the submissions made by learned counsel for both the sides and have produced the materials available on record, including the case diary of Azara P.S. Case No. 06/2025. 14. From materials available on record, it appears that the seized contraband were in form of a consignment that neither originated from the place where it was seized nor meant for the place from it was seized. It was booked at Patna and was meant for Shillong and it was booked through a courier agency and were in a sealed condition. 15. The warehouse from where the contraband seized was only a transit hub where it was kept for onward transmission. It also appears that the contraband were booked as food items at the time of booking of the consignments. 16. Therefore, it is unlikely for an intermediary like the supervisor of a warehouse to know about the contents of the cartons and bags unless this seal are broken and the contents were looked into by opening the same, which was not done in this case. 17. The observation made by the Division Bench of this Court in the case of “Vishwanath Pratap Singh and another versus state of Assam and Page No.# 5/7 Another” (Supra) is relevant in this regard and are reproduced herein below. “18. Section 20(b)(i) of the NDPS Act provides punishment for possession or transportation contraband. Possession is made up of two elements, firstly corpus — the element of physical control and secondly the animus or intent with which such control is exercised. It is conscious possession, which is contemplated by penal statute, which provides and penalises possession of any contraband article or thing. Possession for the purpose of NDPS Act must not be in the sense of physical control over the article but the second element of animus or intent to possession must also be there. Only conscious possession invites penal consequences. Thus, possession means conscious possession and not mere custody without awareness of such possession.” 18. It appears from the aforesaid observation that mere physical possession of contraband without knowing the content of the same would not mean conscious possession of said contraband as for showing the conscious Page No.# 6/7 possession apart from the physical possession, the animus or intent to possess must also be shown. 19. However, in the instant case, the facts and circumstances are such that supervisor of a warehouse is not expected to know the content of a consignment beyond what has been described in the booking order unless same is opened. 20. Thus, for the aforesaid reasons, this Court is of considered opinion that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged in this case. 21. Further, there is also nothing to show that the present petitioner has any criminal antecedents. Therefore, for the limited purpose of consideration of the instant bail application, this Court finds that the embargo of Section 37 of the NDPS Act, 1985 is not applicable to this case. 22. Accordingly, the petitioner is allowed to go on bail of Rs. 30,000/- (Rupees Thirty thousand only) with one surety of like amount subject to the satisfaction of learned Special Judge, Kamrup (M), Guwahati with following conditions: i. That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts of the case before the Investigating Officer. ii. That the petitioner shall co-operate in the investigation. Page No.# 7/7 23. With the above observation, this bail application is accordingly, disposed of. 24. Send back the case diary. JUDGE Comparing Assistant