Diwan Singh v. State of Uttarakhand

enlargement on bail in connection with FIR No. 29 of 2023 dated 11.10.2023, registered at Police Station Pati, District Champawat, under Sections 8, 20, and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter “NDPS Act”).

2. On 10.10.2023, a police team, while on routine checking duty, allegedly spotted a white Santro car (registration number UK03C-5952) parked near Devidhura. It is alleged that upon seeing the police, two persons seated inside the car fled. On inspecting the vehicle, the police claim to have recovered 1.605 kilograms of charas from a bag kept below the passenger seat, along with two mobile phones and multiple SIM cards. 1

3. Since the identity of the persons was not known, the FIR was initially lodged against unknown individuals. During the course of the investigation, the vehicle was found to be registered in the name of the applicant, and certain SIM cards recovered from the mobile phones were also found to be registered in his name.

4. On this basis, the applicant was arrayed as an accused. It is an admitted position that the applicant was not arrested on the spot but voluntarily surrendered before the Court of learned Special Judge (NDPS), Champawat on 02.05.2024 and has remained in judicial custody since then.

5. As per the notification S.O. 1055(E) dated

19.10.2001 issued under the NDPS Act, a small quantity of charas is defined as up to 100 grams, while a commercial quantity is 1 kilogram or more. The recovered contraband, weighing 1.605 kilograms, is significantly above the commercial quantity threshold. Section 20 of the NDPS Act states that for offences involving commercial quantity, the punishment extends to a minimum of ten years rigorous imprisonment, which may extend to twenty years, along with a fine.

6. Learned counsel for the applicant submits that the applicant has been falsely implicated in the matter. It is argued that the alleged contraband was 2 not recovered from the person or the conscious possession of the applicant. The entire case is built upon circumstantial links, namely, vehicle ownership and SIM registration.

7. It is further submitted that no identification proceedings were carried out, and the applicant was not identified by any of the officers who allegedly saw two persons fleeing from the car. Moreover, the applicant was not apprehended from the scene, nor is there any direct evidence of his presence at the time of recovery. Learned counsel has further submitted that the FIR is silent as to the specific time when the police team arrived at the alleged spot and when the recovery was made, although it states that the patrol began at 05:02 PM and the FIR was registered at 12:35 AM the next day. This unexplained gap in the timeline casts serious doubt upon the integrity of the prosecution's version.

8. It is further contended that although the recovery memo mentions four separate bundles allegedly containing charas, only one bundle was sent for forensic examination, and no explanation is offered for why the remaining three bundles were not examined or sealed appropriately. Since the samples were not taken from the rest of the bundles, it cannot be said with certainty that the entire recovered material was indeed charas. Since the punishment under the NDPS Act depends upon the weight of the contraband, this fact leaves a void in the prosecution's 3 case.

9. It is also argued that the present case involves joint recovery, and in such circumstances, attributing the total contraband to one individual without evidence of exclusive or conscious possession is impermissible. Furthermore, there has been a violation of Section 50 of the NDPS Act, as the applicant was neither informed of his right to be searched before a Magistrate or Gazetted Officer, nor was any such offer extended at any stage.

10. Learned State Counsel opposes application, contending that the vehicle from which the contraband was recovered stands registered in the applicant’s name and that the SIM cards recovered from the car were also linked to the applicant and one co-accused. It is further contended that Section 50 of the NDPS Act was not violated, as the recovery was from an abandoned car and not from the person of the accused. The State submits that since the recovery was a chance recovery, the mandate of Section 50, which applies only in cases of personal search, is not attracted. It is also argued that despite the absence of public witnesses, the members of the police team, being public servants discharging official duty, are presumed to be acting in the regular course of law, and the presumption under Section 54 of the NDPS Act applies.

11. Having considered the submissions of both 4 sides and perused the materials on record, this Court is of the opinion that although the recovered substance was alleged to weigh 1.605 kilograms, it is also the case of the State that two individuals were present in the vehicle at the time. The recovery was not made from the person of the applicant but from a car that was allegedly abandoned.

12. In the absence of any evidence establishing exclusive or conscious possession, and in the absence of identification of either of the two individuals who were said to have fled, the entire weight of the contraband cannot be attributed solely to the applicant. If the alleged contraband is treated as jointly held by two individuals, the attributable quantity would be approximately 802 grams per person, which is less than the notified commercial quantity for charas (which stands at 1 kg under S.O. 1055(E) dated 19.10.2001).

13. It is now well settled that in matters involving joint or collective recovery, attribution of the total contraband to one individual without evidence of exclusive or conscious possession is impermissible. The Hon’ble Supreme Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, and Mohd. Sahabuddin v. State of Assam, 2022 SCC OnLine SC 967, has reiterated that statutory restrictions under Section 37 apply only when the recovery of commercial quantity is supported by prima facie material indicating conscious possession and culpability. 5

14. In the present case, since the attributable quantity per person is below the commercial threshold, the rigor of Section 37 does not apply. The applicant has been in custody since 02.05.2024, has no prior criminal antecedents, and has cooperated by surrendering voluntarily.

15. Furthermore, the concept of ‘conscious possession’ under the NDPS Act has been judicially interpreted to mean possession with knowledge of the nature and presence of the substance. Mere ownership of the vehicle from which contraband is alleged to have been recovered is insufficient in the absence of evidence connecting the applicant to the recovery. Under Section 20 of the NDPS Act, to invoke the rigour of punishment for commercial quantity, it must be prima facie shown that the accused was in conscious and exclusive possession of the contraband. In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the Hon’ble Supreme Court reiterated that conviction under the NDPS Act cannot rest on presumption alone without satisfying foundational facts indicating possession. The present case, built only on ownership of the vehicle and SIM registration, falls short of that standard.

16. The Court is further constrained to note that the investigation suffers from significant procedural lapses. There is no explanation as to why only one of the four bundles was subjected to FSL examination, and no satisfactory inventory under Section 52-A of the NDPS Act is on record. The prosecution has not 6 conducted any identification procedure despite its claim that two persons fled from the scene. Moreover, the absence of independent witnesses and the delayed lodging of the FIR, without accounting for crucial hours during the so-called patrolling, casts doubt on the spontaneity and authenticity of the prosecution case.

17. Accordingly, the bail application is allowed. Let the applicant, Diwan Singh, be released on bail, upon his furnishing a personal bond and two sureties of the like amount to the satisfaction of the court concerned. The applicant shall not tamper with the evidence, shall cooperate with the trial proceedings, and shall not the country without prior permission of the trial court. Any infraction of these conditions shall entail cancellation of bail. (ASHISH NAITHANI, J.) Dated: 26.03.2025 NR/ 7