State of Rajasthan, through PP vs For Petitioner(s)

: Mr. Amit Poonia, Public Prosecutor HON'BLE MR. JUSTICE GANESH RAM MEENA 11/07/2025 Order

1. This second bail application has been filed by the petitioner under Section 483 of the B.N.S.S. arising out of F.I.R. No.293/2023, registered with the Police Station Peeplu, District Tonk for offences under Sections 8/15 & 8/25 of the NDPS Act.

2. The first bail application of the petitioner bearing S.B. Criminal Misc. Bail Application No.10750/2024 was dismissed by this Court vide detailed order dated 11.09.2024 after quoting provisions of the NDPS Act and the judgment of the Hon’ble Apex Court passed in the case of CBI vs. Dhan Singh reported in (2003) 9 SCC 248.

3. This Court in its order dated 11.09.2024 has observed as under: "14. At this stage, what is to be seen is whether there are reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further whether he is likely to commit an offence under [2025:RJ-JP:25591] (2 of 5) [CRLMB-8722/2025] the said Act or not, while on bail. A finding of the absence of possession of the contraband on the person of the applicant does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. In the instant case, there is a grave possibility that if the applicant-accused is released then he might run away and/or if there is any Untitled document further amount of contraband at his residence, he would appropriate that as well and he can thus not be absolved of any scrutiny with respect to the offence.

15. The knowledge of possession of contraband has to be ascertained from the facts and circumstances of the case. The standard of conscious possession would be different in case of public transport as opposed to a private vehicle with few persons known to one another. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Possession in a given case need not be physical possession but can be constructive.

16. Section 25 of the NDPS Act creates a vicarious liability against the person who is the owner or is having control of the property concerned and who knowingly permitted usage of such property for the commission of a crime under the Act. The applicant is in close relation with the co-accused and noted to had been in regular contact with the co-accused. Thus, the applicant ought to know about the doings of the co- accused and the fact that he still lent his vehicle to them points towards him having knowledge of the presence of contraband in his vehicle. Thus, it has to be presumed that possession of contraband substance recovered from the vehicle in question was conscious in nature unless the said presumption is dislodged by the applicant. [2025:RJ-JP:25591] (3 of 5) [CRLMB-8722/2025]

17. In the present case, the applicant having installed the possession of his vehicle to the co-accused for usage during the night hours is indicative of the fact that he had ‘knowledge’ of the purpose of usage of his vehicle, i.e., transportation of narcotics, thus the sine qua non for the applicability of section 25 of the Act is made out. The fact of handing over of the vehicle’s possession to the co-accused, which is also the offending vehicle, can by reasonable inference, fasten the applicant with the knowledge of its misuse by the driver-accused and others.

18. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. It is an admitted fact that the contraband substance seized is of commercial quantity and role of the applicant-accused is quite clear inasmuch as it appears that the present applicant is the registered owner of the offending vehicle from where contraband ‘Doda Chura” has been seized. Having regard to the contraband substance seized as aforesaid and provisions contained in Section 25, 35 and 37 of the NDPS Act it is not a fit case to enlarge the applicant on bail. Therefore, the applicant has no option but to obtain a verdict of either his innocence or involvement in the offence by following due procedure as laid down in law, since no exceptional circumstances has been pointed out by the learned advocate for the applicant." [2025:RJ-JP:25591] (4 of 5) [CRLMB-8722/2025]

4. Learned counsel for the petitioner submits that the accused- petitioner is the registered owner of the vehicle in which the contraband, which is more than the commercial quantity was recovered and co-accused persons namely Khushi Ram, Udai Ram and Bhajan were found in the vehicle alongwith the contraband. Counsel further submits that co-accused persons namely Khusi Ram, Udai Ram and Bhajan from whose possession the alleged contraband was recovered, have already been released on bail by the Coordinate Bench of this Court vide orders dated 24.06.2025 and 30.06.2025 respectively.

5. Learned Public Prosecutor appearing for the State opposed the bail application and submits that no satisfaction as required under Section 37 of the NDPS Act has been recorded in the orders of grant of bail to the co-accused persons named above. He further submits that mandate of Section 37 of the NDPS Act is that the court is required to record its satisfaction after going through the investigation report whether prima facie the accused is guilty.

6. Taking into consideration the overall facts and circumstances of the case and just to maintain parity and judicial discipline and also to respect the orders of the Coordinate Bench, this Court without expressing any opinion on merits and demerits of the case, deems just and proper to enlarge the petitioner on bail.

7. Accordingly, this second bail application is allowed and it is directed that accused-petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) together with two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each to the satisfaction [2025:RJ-JP:25591] (5 of 5) [CRLMB-8722/2025] of the trial Court with the stipulation that he shall appear before the trial Court or any other Court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so. Gaurav Srivastava /Satyendra/1 (GANESH RAM MEENA),J