Page No.# 1/4 GAHC010119822026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1604/2026 SHAHIN SIKDAR S/O LATE KHALIL SIKDARR/O VILLAGE NO. 1 GAROGAON P.S. BONGAIGAON DISTRICT BONGAIGAON ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. B B GOGOI, MS S. MEHJABIN,MR G U AHMED Advocate for the Respondent : PP, ASSAM, :: BEFORE :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R 30.07.2026 Heard Mr. B.B. Gogoi, the learned counsel appearing for the petitioner. Also heard Mr. Bhaskar Sarma, the learned Addl. Public Prosecutor, Assam. Page No.# 2/4 2. This is an application under Section 483 of the BNSS, 2023 whereby the petitioner, namely- Shahin Sikdar has prayed for releasing him on bail in respect of Special (Nar) Case No.13(BGN)/2026 pending in the court of the learned Special Judge, Bongaigaon. 3. From the shop of the petitioner, commercial quantity of narcotic drugs kept in two bags was seized. 4. Mr. Gogoi has submitted that the petitioner is the owner of a restaurant and those bags were found inside his shop. According to Mr. Gogoi, some customers might have left those bags in his shop and the petitioner did not know about it. In order to buttress his point regarding conscious position, Mr. Gogoi has relied upon a decision of the Hon’ble Supreme Court that was delivered in Inder Sain v. State of Punjab, reported in (1973) 2 SCC 372. Paragraphs 14, 15 and 20 of the said judgment are quoted as under: “14. We think that the only question for consideration here is whether the appellant was in possession of opium. It was held in a number of rulings of the various High Courts that if possession of an article is made an offence, then there must be proof that the accused was knowingly in possession of the article. See the decisions in Emperor v. Santa Singh [AIR 1944 Lah 339 : 46 cri LJ 1 : ILR 1945 Lah 137 : 215 IC 161] , Sahendra Singh v. Emperor [AIR 1948 Pat 222 : 49 Cri LJ 445 : ILR 26 Pat 46] , Abdul Ali v. State [AIR 1950 Assam 152 : 51 Cri LJ 973 : ILR (1950) 2 Assam 333] , Pritam Singh v States [AIR 1967 Punj 50 : (1966) 68 Punj LR 200 : 1967 Cri LJ 254] and Sub-Divisional Officer and Collector, Shivasagar v. Shri Gopal Chandra, Khaund [AIR 1971 SC 1190] . 15. It is true that prosecution has not adduced any evidence to show that the appellant was knowingly in possession of opium. The appellant took the endorsement of the Railway Receipt from the consignee, and presented it before the parcel clerk and obtained the parcel. There is, strictly speaking, no evidence that the appellant was aware that the parcel contained any contraband substance, much less opium. 20. It does not follow from this that the word “possess” in Section 9 does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word “possess” connotes, in the context of Section 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge of an offence. A conviction under Section 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be Page No.# 3/4 conscious possession.” 5. Mr. Gogoi further relied upon a judgment of the Apex Court that was delivered in Mohan Lal v. State of Rajasthan, reported in (2015) 6 SCC 222 . Paragraph 12 of the said judgment is quoted as under: “12. The term “possession” consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of “possession” given in Black's Law Dictionary is as follows: “Possession.—Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel [219 Kan 616 : 549 P 2d 568 at p. 569 (1976)] . The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. The law, in general, recognizes two kinds of possession : actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.” In the said Dictionary, the term “possess” in the context of narcotic drug laws means: “Term ‘possess’, under narcotic drug laws, means actual control, care and management of the drug. Collini v. State [487 SW 2d 132 at p. 135 (Tex Cr App 1972)] . Defendant ‘possesses’ controlled substance when defendant knows of substance's presence, substance is immediately accessible, and defendant exercises ‘dominion or control’ over substance. State v. Hornaday [105 Wash 2d 120 : 713 P 2d 71 at p. 74 (Wash 1986)] .” And again: “Criminal law.—Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, United States v. Craig [522 F 2d 29 at p. 31 (6th Cir 1975)] ; as well as joint or exclusive, Garvey v. State [176 Ga App 268 : 335 SE 2d 640 at p. 647 (1985)] . The defendants must have had dominion and control over the contraband with knowledge of its presence and character. United States v. Morando-Alvarez [520 F 2d 882 at p. 884 (9th Cir 1975)] . Possession, as an element of offense of stolen goods, is not limited to actual Page No.# 4/4 manual control upon or about the person, but extends to things under one's power and dominion. McConnell v. State [48 Ala App 523 : 266 So 2d 328 at p. 333 (1972)] . Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. United States v. Ellison [469 F 2d 413 at p. 415 (9th Cir 1972)] . To constitute ‘possession’ of a concealable weapon under statute proscribing possession of a concealable weapon by a felon, it is sufficient that defendant have constructive possession and immediate access to the weapon. State v. Kelley [12 Or App 496 : 507 P 2d 837 at p. 837 (1973)] .” 6. Thereby, Mr. Gogoi has submitted that the petitioner did not have the conscious possession of the narcotic drugs. 7. Mr. Bhaskar Sarma has submitted that in this case, the prosecution side has already examined two witnesses who are police officers. According to Mr. Sarma, the witnesses Aynal Hoque and Nanda Kumar Roy are the seizure witnesses and this application should be considered after examination of the two witnesses. 8. I have given my anxious considerations to the submissions made by the learned counsels of both sides. 9. In this case, commercial quantity of narcotic drugs was seized. This Court is of the opinion that the prosecution side should be given adequate opportunity to prove the case before the trial court. Therefore, I have decided to agree with Mr. Sarma. Let the trial court examine the witnesses Aynal Hoque and Nanda Kumar Roy and after that the bail application of the petitioner shall be considered. 10. The petitioners shall furnish certified copies of the evidences of Aynal Hoque and Nanda Kumar Roy through an additional affidavit and after that the case shall be listed again for consideration by this Court. With the aforesaid direction, the instant bail application is disposed of. JUDGE Comparing Assistant