Ansar Ahmad S/O Shri Ibrar Ahmad v. Union Of India Thru. Intelligence Officer Ncb Lko

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7027 of 2022

Applicant :- Ansar Ahmad S/O Shri Ibrar Ahmad

Opposite Party :- Union Of India Thru. Intelligence Officer Ncb Lko

Counsel for Applicant :- Anil Kumar Pandey

Counsel for Opposite Party :- Akhilesh Kumar Awasthi

Hon'ble Shree Prakash Singh,J.

Heard Sri Anil Kumar Pandey, learned counsel for the applicant, Sri Akhilesh Kumar Awasthi, learned counsel for the N.C.B. and perused the material placed on record. The instant bail application has been filed on behalf of the applicant with a prayer to release the applicant on bail during the trial in NCB Case Crime No. 10 of 2022, under Section 8/21/29 of N.D.P.S. Act, challaned by Narcotics Control Bureau, Lucknow, District Bahraich.

As per the prosecution story, on 26.3.2022 at about 16.00 hours, an information was received that three persons, namely, Jabir, the applicant Ansar Ahmad and Salamat Ali, all residents of Village and Police Station Masauli, District Barabanki were going for trafficking some contraband substance at Kundasar Chauraha in Barabanki on 26.3.2022 between 23.00 to 23.30 hours. It was further alleged that contraband substance, i.e., morphine was supplied to them by one Badaruddin, resident of Chaukhandi, Police Station Safdarganj, District Barabanki. On such information, the team headed by Junior Intelligence Officer Ravi Prakash interrupted on the way and identified them as Jabir, Ansar Ahmad and Salamat Ali. Accused Jabir and Ansar Ahmad were sitting on one motorcycle bearing registration no. U.P. 41 H 9224 and the same was driven by accused Jabir. Accused Salamat Ali was sitting on motorcycle Neutral Citation No. - 2022:AHC-LKO:76126

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bearing registration No. U.P. 41 U 9907. After personal search of them, contraband substance, i.e., 400 gram morphine was recovered from the joint possession of Jabir and Ansar Ahmad and 200 gram morphine was recovered from the possession of Salamat Ali.

Learned counsel for the applicant contended that the applicant is innocent and has falsely been planted by the N.C.B. authority in the instant matter. There is no independent public eye witness of the said recovery. There is non-compliance of Sections 42, 52-A, 55 and 57 of the N.D.P.S. Act. He further added that even assuming the story of the prosecution to be correct as narrated in the F.I.R., the packet containing the alleged contraband substance was found inside the diggy of the motorcycle, which was driven by co-accused Jabir and the applicant Ansar Ahmad was sitting behind him on the said motorcycle. It is a case of the prosecution that the said contraband substance was purchased by Jabir from Badaruddin and while purchasing the contraband substance, the applicant was not present there. Since the applicant met with co-accused Jabir on the way, thus, the applicant had no knowledge that certain contraband substance, i.e., morphine was kept inside the diggy of the motorcycle of Jabir and the applicant could know about the same when the N.C.B. officers interrupted the motorcycle and recovered certain substance though it is not confirmed that the recovered substance was morphine.

He further submits that from the G.D. details, which has been annexed as Annexure No.4 at page 25 of the bail application, it is evident that the alleged contraband substance was not available with the Junior Intelligence Officer on 27.3.2022 at

6.05 am. The details of article of recovery and persons including the accused are mentioned in the G.D. but there was

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no mentioning of any contraband substance. Further referring Annexure No. 3, which is a letter of the Junior Intelligence Officer of N.C.B., he submits that the accused Jabir was directed to remain present on 27.3.2022 at 6 am in the Police Station Fakharpur though the G.D. details says otherwise and, thus, these are highly contradictory facts, which demolished the story of the prosecution.

Adding his arguments, he has further drawn attention towards the Test Memo dated 28.3.2022 wherein at serial no. 5, the date of withdrawal of sample is mentioned as 27.2.2022, whereas from the application dated 28.3.2022, it is evident that Junior Intelligence Officer N.C.B., who is the investigating officer in the instant matter, submitted an application to the District and Sessions Judge, District Bahraich for permitting him to withdrawal of samples and that was allowed by the court concerned on 28.3.2022, which is evident from the endorsement made on the left column of the application. He added that the application dated 28.3.2022 is the document of the prosecution, which shows that upto 28.3.2022, no sample was withdrawn. But in the Test Memo dated 28.3.2022, the date of withdrawal of the sample has specifically been mentioned as 27.2.2022 and in respect thereof, no any clarification has been given by the N.C.B. in its counter affidavit, which creates material doubt in the story of the prosecution.

He further added that the applicant has no concern with any recovery, which is alleged to have been done from the diggy of the motorcycle of the co-accused Jabir and there is no corroborative evidence against the applicant in this reference. He further submits that the signatures of all members of the raiding party are not found on the alleged recovery memo, thus, the presence of the said officers of the N.C.B. is also highly

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doubtful. In support of his submissions, he has placed reliance upon the Judgments of the Apex Court rendered in the cases of

Bhola Ram Kushwaha Vs. State of M.P., Cr. Appeal No.983 of 2002 decided on November 16, 2000 and Avtar Singh & others Vs. State of Punjab, 2003 (1) JIC 134 (SC). Referring the aforesaid Judgments, he submits that mere sitting at a place or on motorcycle cannot be a piece of evidence that a person was having the knowledge of such contraband substance as there is difference between "possession" and "conscious possession" of a contraband substance. He further added that burden of proof lies upon the porsecution agency to come with a clear case and that should be beyond reasonable doubts. In support of his submission, he has placed reliance on paras 3 to 6 of the Judgment in the case of Avtar Singh and others (supra), which are extracted as under:-

"3. The more important contention raised before the High Court was that from the mere fact that the appellants were sitting in the truck, it cannot be held that they were in possession of poppy husk. The High Court observed that the appellants did not come forward with the case that they were merely passengers and that they were unaware of what was contained in the bags. The reason for travelling at that odd hour with the offending goods was not stated by any of the accused. Therefore, the High Court concluded that "their close connection of being in possession of the poppy husk must be held to have been established." The High Court also pressed into service the presumption under Section 35 of the Act.

4. In this appeal, the learned Senior Counsel, apart from commenting on the artificiality of the prosecution case and the discrepancies in the evidence regarding the police officer to whom the seized bags were handed over, mainly concentrated on the point that the possession much less conscious possession, of the bags of poppy husk, has not been established and the accused were not even questioned about it. We find force in the contention of the learned Counsel.

5. Section 15 provides for punishment if any person in contravention of any provision of the Act or any rule or order made or condition of a licence granted theredunder, produces,

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possesses, transports, imports inter-State sales, purchase, uses or omits to ware-house poppy straw or removes or does any act in respect of warehoused poppy straw. Section 8 enacts a prohibition against production, manufacture, possession, sale, purchase, transport, ware-housing, use, consumption, import and export or transhipment of any narcotic drug or Psychotropic Substance except for medical on scientific purposes and to the extent and in the manner permitted by the provision of the Act or rules or orders made thereunder or in accordance with the term of licence or permit, if any. We are therefore, with possession and transportation. However, the charge is confined to possession in the instant case.

6. Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain Vs. State of Punjab (1973 (2) SCC 372) arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW 4 the head constable, it is seen that appellant No.3 (Accused No.4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW 2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word 'possession' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the

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prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 Cr.P.C, not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under S.313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the presumption under S.54 of the Act without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal."

He further submitted that co-accused Salamat Ali and Badruddin have already been enlarged on bail by order passed

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