'Possession Under NDPS Act Has To Be Conscious & Exclusive' : Bombay High Court Grants Bail To German National

The Bombay High Court(Goa Bench) recently granted bail to a German national, who was arrested in March last year in a case registered under the Narcotic Drugs and Psychotropic Substances(NDPS) Act.

The contraband in the case was 'charas', allegedly of commercial quantity, which was seized from the apartment of a woman, who was the first accused in the case. The German citizen, Fabian Helmchen, claimed that he had no knowledge of the presence of drugs with the first accused, with whom he had only an acquaintance. His lawyer argued that he was not present in the apartment of the first accused when the police raid was taking place. It was further argued that since nothing incriminatory was found against him, the offence of conspiracy under Section 29 NDPS was added in the FIR.

A single bench of Justice MS Jawalkar noted that the contraband was seized from the apartment of the first accused woman, that too in a polythene zip lock bag inside the ladies clothes in the locker of a steel almirah. The Court said that the most important thing was that the information received by the Police Authorities did not suggest that there was any male person present or involved. The first accused gave a statement that the substances belonged to her. She has also been released on bail.

"The possession under NDPS Act has to be conscious and exclusive. The person possessing the same must have knowledge and control over title and custody of the same", the Court observed in the judgment.

While granting bail, Justice Jawalkar observed :

In my considered opinion, to attract Section 29 of NDPS Act, prima facie evidence of conspiracy or connivance should be recorded. The learned Counsel for the applicant relied on the decision of the Principal Bench of this Court in the case of Sangeeta Y. Gaikwad Vs. State of Maharashtra (Criminal Application No. 2597 of 2006 dated 03.08.2006) and the decision of the Hon'ble Apex Court in the case of Amarsingh Ramjibhai Barot Vs. State of Gujrat, (2005) 7 SCC 550 in support of his contention that even if the applicant had knowledge of the offence that does not per se attract Section 29 of the NDPS Act. The record also does not reveal, even prima facie, the role that the applicant has played and one cannot be ipso facto made an accused because of his/her presence in the house. There ought to be conspiracy.  It is also a fact that the report of CFSL is yet to be received.

The Court also noted that the applicant had no criminal antecedents, and was a qualified professional who came to India on tourism purpose, and was scheduled to return to Germany six days after his arrest.

The Court also directed that the applicant should not leave the State of Goa without the permission of the Trial Court and should attend all dates of trial.

It was also clarified that the observations in the order are prima facie in nature.

Click here to read/download the order