NDPS Act | Possession Not Proved Merely By Sitting In Vehicle From Which Contraband Is Seized: Orissa High Court

"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 the other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt… 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."

Factual Background:

On 07.03.2020, the Sub-Inspector of Police, R. Udayagiri Police Station reported that he along with other police staff while returning to the police station, after performing their routine patrolling duty, found one commander jeep without number plate was going towards R. Udayagiri in front of their vehicle in high speed. Finding it suspicious, they chased and detained the vehicle. One person successfully escaped while other two persons were detained.

While checking was underway, 14 numbers of jerry bags were found from the jeep and as alleged that carried ganja. On enquiry, the driver said that he along with one Junesh Lima collected the ganja at the jungle area of nearby villages and they were transporting the same from Anugur to Berhampur.

Junesh Lima, who was the owner of the contraband ganja and was sitting inside the jeep, fled from the spot seeing the police. On being asked, the present petitioner confessed that he was assisting Junesh Lima and the driver during packing and loading of the jerry bags. After weighing, a total of 400 KGs of ganja was seized. After observing all the formalities, the petitioner was arrested and forwarded to the learned court below.

A case was registered for the alleged commission of offence under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act and Section 473 of IPC. The petitioner is in custody in connection with the case, which is pending in the court of the learned District and Sessions Judge, Gajapati, Paralakhemundi. Thus, he filed this application under Section 439 of CrPC for his release on bail.

Contentions:

Dr. Binoda Kumar Mishra, counsel for the petitioner, submitted that the contraband was not seized out of the exclusive possession of the petitioner. Further, the petitioner was a daily wage labourer and earned his living through labour works. On the date of occurrence, the petitioner was hired as a labourer for loading and unloading of the bags. He was completely ignorant about the materials in the bags. So, he vehemently contended, the contraband ganja seized from the vehicle cannot be said to have been seized from the conscious possession of the petitioner.

He pointed out that Section 20(b) of the NDPS Act makes 'possession' of contraband articles an offence. It was submitted that in order to make the possession illicit, there must be a conscious possession. It was stressed that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 cannot be invoked.

Again, he submitted that the desertion by an owner of a cargo in a vehicle does not entitle the driver and the others sitting inside the vehicle the possession thereof. He pointed out that there is no such law to automatically transfer possessory rights over the cargo deserted by the owner to the driver of the carriage or the workers hired to load and unload the same. Moreover, as the petitioner has been languishing in jail for more than 18 months, it was contended that he deserves to be enlarged on bail.

Mr. G.R. Mohapatra, Additional Standing Counsel strongly opposed the bail application.

Court's Observations:

While accepting the argument that the petitioner cannot be held to have possession of the seized contraband merely because he was found in the jeep, the Court noted the following observations made by the Supreme Court in Sorabkhan Gandhkhan Pathan & Anr. v. State of Gujarat,

"The prosecution has not produced any material whatsoever to establish that either this appellant had the knowledge that Appellant 1 was carrying the contraband or was, in any manner, conniving with the said accused in carrying the contraband. In the absence of any such material, to convict the second appellant only on the ground that he was found in the autorickshaw, in our opinion, is not justified. As a matter of fact, the courts below have rightly acquitted the other two accused on similar ground and, in our opinion, the said benefit ought to have gone to Accused 2 also."

Further, the Court referred to Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, wherein the Apex Court held that right to have speedy trial is a fundamental right of a citizen. Hence, keeping a person in custody for a long time without any trial is not justified and violative of his fundamental rights.

Considering prolonged detention of the petitioner, which continued for 18 months, the Court granted him bail on the conditions that he shall appear before the learned Trial Court on each date of posting of the case; he shall not indulge in similar activities in future; and he shall not tamper the evidence of the prosecution witnesses in any manner.

Case Title: Kishore Bira v. State of Odisha

Case No.: BLAPL No. 9629 of 2021

Order Dated: 11^th July 2022

Coram: Dr. Justice S.K. Panigrahi

Counsel for the Petitioner: Dr. Binoda Kumar Mishra, Advocate

Counsel for the Respondent: Mr. G.R. Mohapatra, Additional Standing Counsel

Citation: 2022 LiveLaw (Ori) 112