NCB Not Police Station, Accused Can't Seek Bail On Ground That Agency Did Not Record Secret Information In General Diary: Gujarat High Court

Justice Umesh A Trivedi observed,

“Narcotics Control Bureau is not a police station so as to have those diaries for recording thereof, and therefore, information relating to cognizable offence to be recorded in the police station will not be of any use in support of the application for bail.”

The case revolved around a seizure made by NCB's Ahmedabad Unit, near the Adalaj Toll Plaza. Acting on prior information, authorities conducted a search on a Traveller Bus en route from Delhi to Mumbai. This operation resulted in the seizure of 6.359 kilograms of Charas, which is deemed a commercial quantity. The contraband was discovered in the joint possession of the applicant and other co-accused, found in a red-colored bag with an identification mark as detailed in the panchnama.

Both individuals were apprehended after failing to account for the contraband in their possession. Subsequently, the Narcotics Control Bureau Officers initiated an investigation, leading to a formal complaint being lodged against them, registered as an NDPS Sessions Case in the District and Sessions Court, Gandhinagar.

The applicant’s counsel contended that the NCB officers are supposed to record entry in general diary / station diary / daily diary when they receive information in respect of cognizable offence received in a police station, as mentioned in para 120.8 in the case of Lalita Kumari v. Govt. of U.P. & Ors., reported in (2014) 2 SCC 1.

After carefully considering the arguments presented by the advocates representing both parties and reviewing the complaint, along with the accompanying documents submitted by the applicant's lawyer, the court determined that the seizure of 6.359 Kgs of Charas from a bag carried by the applicant and a co-accused indicated joint possession.

The Court pointed out that the bag contained clothes belonging to both individuals and commercial quantities of Charas, as confirmed in the panchnama, and therefore, the court concluded that the applicant could not be deemed innocent and was likely guilty of the offense under the Act.

Addressing the applicant's counsel's argument that identifying the accused through photographs without a test-identification parade was invalid, the court stated that the identity of the accused was not disputed in this case. The accused was arrested on the spot in possession of a commercial quantity of Charas, witnessed by two witnesses. Any identification through photographs conducted later was merely for corroboration and was deemed permissible.

Additionally, the Court said “If seat number or berth number, where applicant and other co-accused were travelling, is not mentioned in the panchanama, it will not render presumption of a commercial quantity of Charas from the joint possession of both the accused invalid, which is seized in presence of two panchas.”

“However, what is required to be stated in the panchanama and whether that is followed during seizure or not, would be determined on conclusion of full-fledged trial when evidence is led before the Court where the applicant – accused may crossexamine the panch-witnesses for any shortcomings recorded the panchnama, if at all it is there,” the Court added.

The Court also addressed the absence of outward/inward numbers and the lack of a seal from a higher officer on the loose piece of paper containing the prior/secret information. It emphasized that the law requires secret/prior information to be recorded in writing, and any issues related to outward or inward numbers should be determined during the trial, as these technicalities do not affect the central issue of the accused's possession of a commercial quantity of Charas.

Furthermore, the Court highlighted the legal presumption of a culpable mental state when an accused is found in possession of a commercial quantity of Charas under Section 35 of "the Act." It also noted the presumption arising from possession of an illicit article under Section 54 of "the Act,” and the burden of rebutting the presumption falls on the accused.

Considering the presence of a commercial quantity of Charas in the applicant's possession, even in joint possession with a co-accused, the Court concluded that it could not ascertain that the applicant was not guilty of an offense under "the Act" and that releasing the applicant on bail would not pose a risk of further offenses.

Consequently, the Court rejected the application for bail and declined to release the applicant.

Appearance: Mr Raj K. Awasthi For Mr A.R.Kadri(7330) For The Applicant(S) No.1 For The Respondent(S) No. 1 Mr Kartik V Pandya(2435) For The Respondent(S) No. 1 Ms Krina P. Calla, App For The Respondent(S) No. 2

LL Citation: 2023 LiveLaw (Guj) 173

Case Title: Muhammad Tayyab Shaikh S/O Muhammad Nihal Shaikh Versus Union Of India

Case No.: R/Criminal Misc.Application No. 11079 Of 2023

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