# Dheeraj Kumar Shukla v. State of U.P

- **Citation:** (2021) 11 ILRA 19
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-06
- **Case number:** Criminal Misc. Bail Application No. 42092 of 2020
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dheeraj-kumar-shukla-v-state-of-u-p-46472
- **Pages:** 12

## Headnote

Law
-
Narcotic
Drugs
and
Psychotropic Substances Act, 1985 - Section
8/20,35,37,50,54
-
The
Code
of
criminal
procedure, 1973 - Section 439 - presumption shall
be drawn against the accused unless and until the
contrary is proved - Possession is the core
ingredient to be established before the accused
are made criminally liable - Physical Possession,
Constructive Possession and Conscious Possession
- Recording of finding in terms of Section 37 of
N.D.P.S. Act is a sine qua non for granting bail
under N.D.P.S. Act - discretion is required to be
exercised judiciously and judicially - proper
administration of the criminal justice delivery
system, requires balancing the rights of the
accused and the prosecution.(Para - 12,13,17,19)
Recovery of huge quantity of Ganja (157.570 Kgs)
- Commercial quantity (20 kg) - applicant was
apprehended at the spot.

HELD:- Conscious and constructive possession of
the accused applicant over the recovered Ganja is
apparent on record . No prior ill-will or enmity of
the applicant with the police personnel concerned.
Co-accused obtained bail by misrepresentation of
facts, other accused on same footing are not
entitled to bail on the ground of parity. No
reasonable ground in terms of Section 37 of the
N.D.P.S. Act to hold that applicant is not guilty of
an offence and he is not likely to commit any
offence while on bail. (Para - 13,14,17,20)

Bail application rejected. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,956 of 44,355. This is a partial read: ask again with offset=39956 for what follows._

11 All. Dheeraj Kumar Shukla Vs. State of U.P.
19

23. Needless to say that fees shall be
payable to the Arbitrator as per the Fourth
Schedule, read with the proviso to section
11(3)(A) of the Act 1996.

24. Steps to be taken by the applicant to
facilitate the aforesaid.

25. List this case on 06.12.2021 for further
proceedings.
----------
(2021)11ILR A19
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2021

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. Bail Application No. 42092 of 2020

Dheeraj Kumar Shukla ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Rajiv Lochan Shukla, Sri Arya Suman Pandey

Counsel for the Opposite Party:
A.G.A.

(A)
Criminal
Law
-
Narcotic
Drugs
and
Psychotropic Substances Act, 1985 - Section
8/20,35,37,50,54
-
The
Code
of
criminal
procedure, 1973 - Section 439 - presumption shall
be drawn against the accused unless and until the
contrary is proved - Possession is the core
ingredient to be established before the accused
are made criminally liable - Physical Possession,
Constructive Possession and Conscious Possession
- Recording of finding in terms of Section 37 of
N.D.P.S. Act is a sine qua non for granting bail
under N.D.P.S. Act - discretion is required to be
exercised judiciously and judicially - proper
administration of the criminal justice delivery
system, requires balancing the rights of the
accused and the prosecution.(Para - 12,13,17,19)
Recovery of huge quantity of Ganja (157.570 Kgs)
- Commercial quantity (20 kg) - applicant was
apprehended at the spot.

HELD:- Conscious and constructive possession of
the accused applicant over the recovered Ganja is
apparent on record . No prior ill-will or enmity of
the applicant with the police personnel concerned.
Co-accused obtained bail by misrepresentation of
facts, other accused on same footing are not
entitled to bail on the ground of parity. No
reasonable ground in terms of Section 37 of the
N.D.P.S. Act to hold that applicant is not guilty of
an offence and he is not likely to commit any
offence while on bail. (Para - 13,14,17,20)

Bail application rejected. (E-7)

List of Cases cited:-

1. U.O.I. Vs Rattan Mallik @ Habul, 2009 (1) SCC (Crl) 831

2. U.O.I. Vs Ram Samujh, 1999 (9) SCC 429

3. U.O.I. Vs Shiv Shankar Kesari, (2007) 7 SCC 798

4. St. of Kerala Etc. Vs Rajesh Etc., AIR 2020
Supreme Court 721

5. U.O.I. Vs Prateek Shukla, AIR, 2021 SC 1509

6. Megh Singh Vs St. of Punj., 2003 CRI. L.J. 4329

7. Gunwantlal Vs The St. of M.P., AIR 1972 SC 1756

8. Health Vs Drown, (1972) (2) All ER 561 (HL)

9. Sullivan Vs Earl of Caithness, 1976 (1) All ER 844 (QBD)

10. Madan Lal & anr. Vs St. of H.P., 2003 (6) SCALE 483

11. Dehal Singh Vs St. of H.P., 2011 (72) ACC 661

12. Sonu Vs Sonu Yadav & anr., AIR 2021 SC 201

(Delivered by Hon'ble Sanjay Kumar Singh, J.)

1. Keeping in view the Pandemic (COVID19), the case is taken up through video
conferencing.
20 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Heard Mr. Rajiv Lochan Shukla, learned
counsel for the applicant and Mr. Virendra
Kumar Maurya, learned Additional Government
Advocate assisted by Mr. Prashant Kumar
Singh, learned Brief holder appearing on behalf
of State of U.P. through video conferencing and
perused the material placed on record.

3. By means of this application, the
applicant, who is involved in Case Crime No.
0532 of 2020, under sections 8/20 of Narcotic
Drugs & Psychotropic Substances Act, police
station Jhunsi, district Prayagraj, is seeking
enlargement on bail during the pendency of trial.

Facts

4. In nutshell, the facts which led to the
prosecution of accused are that on 23.6.2020
informant (Sub Inspector Ranendra Kumar
Singh, UP S.T.F. field Unit Prayagraj) lodged
First Information Report at police station Jhusi,
District Prayagraj against four accused persons,
namely, Dhiraj Kumar Shukla (applicant),
Praveen Maurya alias Punit Maurya, Dhiraj
Maurya and Rishabh Kumar alleging inter alia
that on 23.6.2020, he along with other police
personnel were busy in the city area for
collecting
information
regarding
illicit
trafficking of narcotics substance and criminals
declared
as
wanted,
where
he
received
information through informer that some persons
are about to come at Jhunsi near Trivenipuram
gate on vehicle with illegal and suspicious
goods, if quick action be taken, they can be
caught. On such information, he after giving
information to higher officers proceeded for the
place of occurrence along with informer and
other
police
personnel
and
reached
at
Trivenipuram gate, Jhunsi through Nyay Nager
Crossing. Effort was made to persuade the local
persons to become witness, but due to fear no
body became ready. Thereafter, they walked
towards railway crossing and reached on the
bridge and started waiting there. After some
time, they saw that two vehicles white coloured
Swift Dzire car and grey coloured Honda City
car were coming. On the indication of informer,
said vehicles were caught by the police team
using necessary force and persons sitting in the
vehicles were pulled out. On questioning, they
disclosed about transportation of illegal Ganja in
the
said
vehicles.
On
interrogation,
the
apprehended accused persons, who were sitting
in Honda City car, disclosed their names as
Praveen Maurya alias Punit Maurya (owner),
Rishabh Kumar (Driver) and Dhiraj Maurya,
whereas person, who was driving Swift Dzire
car disclosed his name as Dheeraj Kumar Shukla
(applicant). The accused were enlightened about
their legal rights to be searched before a
Gazetted Officer, to which they declined and
gave their consent saying that informant may
take their search. Accordingly, they were
searched, but no contraband was recovered from
their personal search, except mobile phones and
some cash amount etc. as mentioned in the
recovery memo. On taking search of aforesaid
vehicles, total 92.410 Kgs. of Ganja were
recovered from the dicky of Honda City car
bearing No. MH 04 AF 0076 and 65.160 Kgs. of
Ganja were recovered from the dicky of Swift
Dzire car bearing No. UP 70 EW 0246. As such,
total 157.570 Kgs of illegal Ganja have been
recovered in this case. Accused persons could
not show the authorization for keeping and
transporting the same. Separate samples of about
100-100 grams each of Ganja were taken out
from each packets, thereafter samples and
remaining Ganja as well as other recovered
materials were separately sealed in white cloths.
Specimens of seal were prepared. Accused
persons disclosed that they have been engaged in
the trafficking of Ganja since last several years.
They also disclosed that they purchased the
Ganja from one Hari, resident of Kodpad,
Odisha and sell the same on higher price in
Prayagraj. Both the aforesaid vehicles were also
seized. Contents of recovery memo were
explained to the accused persons and after taking
11 All. Dheeraj Kumar Shukla Vs. State of U.P.
21
their signature, copy of recovery memo was
handed over to them. On the basis of aforesaid
recovery, a case was registered against the
accused persons at Case Crime No. 0532 of
2020, under section 8/20 of N.D.P.S. Act, police
station Jhunsi, district Prayagraj.

Submissions on behalf of the applicant

5. Learned counsel for the applicant argued
that as per the prosecution case, total 157.570
Kgs illegal Ganja are said to have been
recovered in this case, out of which 92.410 Kgs
Ganja were recovered from the dicky of Honda
City car, which was driven by the co-accused
Rishabh Kumar and 65.160 Kgs Ganja were
recovered from the dicky of Swift Dzire car,
which was driven by Dheeraj Kumar Shukla
(applicant). The co-accused Rishabh Kumar,
who was the driver of the Honda City car, has
already been granted bail by co-ordinate Bench
of this Court vide order dated 31.05.2021 in
Criminal Misc. Bail Application No.17226 of
2021, therefore the applicant is also entitled to
be released on bail on the ground of parity. It is
next submitted by the learned counsel for the
applicant that Investigating Officer has not
followed the procedure of N.D.P.S. Act. The
applicant is Diploma holder in Electrical
Engineering and has been falsely implicated.
Charge sheet has been filed in this case on
16.8.2021. Applicant has no criminal antecedent
and is in jail since 24.6.2020. Lastly, it is prayed
to release the applicant on bail on the ground of
parity of bail order dated 31.05.2021 of coaccused Rishabh Kumar.

Submissions on behalf of the State of
U.P.

6.

Per
contra,
learned
Additional
Government Advocate appearing on behalf of
Sate of UP/opposite party, vehemently opposed
the aforesaid submissions of learned counsel for
applicant by contending that recovered 157.570
Kgs Ganja in this case, is much more than
commercial quantity, out of which 65.160 Kgs
Ganja were recovered from the dicky of Swift
Dzire car occupied by the applicant. The accused
applicant was driver of Swift Dzire car and was
having
conscious
possession
of
aforesaid
recovery as well as constructive possession over
recovered 65.160 Kgs Ganja from his car. There
is no enmity between the applicant and police
team, therefore, allegation of false implication of
the applicant is without any basis and against the
evidence on record. The huge quantity of 157.570
Kgs Ganja cannot be planted. The mandatory
requirements as provided under the Narcotics
Drugs & Psychotropic Substances Act have been
followed by the officer concerned. Samples were
sent to laboratory for chemical analysis.
Applicant is also involved in a case being case
crime no.598 of 2020, under Section 2/3 U.P.
Gangsters and Anti Social Activities (Prevention)
Act. Sonu Shukla (brother of applicant) is owner
of the vehicle Swift Dzire car in question, who
has also made an accused in this case and has
been arrested on 03.04.2021. Swift Dzire car
bearing no. U.P.70 EW 0246 has been seized by
the police, thereafter a letter has been sent to the
District Magistrate for initiating confiscation
proceedings. So far as bail order dated
31.05.2021 of co-accused Rishabh Shukla is
concerned, it is submitted by learned A.G.A. that
argument advanced on behalf of State of UP has
neither been considered nor noted in the order
dated 31.05.2021 and the same has been passed
without considering the provisions of section 37
of Narcotics Drugs & Psychotropic Substances
Act accepting wrong submission on behalf of coaccused that recovered Ganja is less than
commercial quantity and the same was not sent
for chemical examination, therefore no case of
parity is made out and bail application of the
applicant is liable to be rejected.

Now rival submissions fall for analysis.

Issue
22 INDIAN LAW REPORTS ALLAHABAD SERIES

7. After having heard the learned counsel
for the parties, I find that one of the issue that
arises for consideration before this Court is "as
to whether applicant is entitled to be released on
bail only on the ground of parity of bail order
dated
31.05.2021
of
co-accused
Rishabh
Kumar".

8. Before delving into the matter it would
be relevant to quote the relevant extract of bail
order dated 31.05.2021 of co-accused Rishabh
Kumar
passed
in
Criminal
Misc.
Bail
Application No.17226 of 2021, which is being
reproduced herein-below:

"This matter is listed for hearing
through video conferencing. Link has been sent
to the respective learned counsels. Learned
Counsel for the applicant and learned A.G.A. for
the State are connected through the link.

Heard
learned
counsel
for
the
applicant as well as learned A.G.A for the State
and perused the record.

By means of this application, the
applicant who is involved in Case Crime No.325
of 2020, under Section 8/20 N.D.P.S. Act, Police
Station Jhunsi, District Prayagrj, is seeking
enlargement on bail during the trial.

Submission made by learned counsel
for the applicant is that the applicant has been
falsely implicated in the present case. Learned
counsel for the applicant submits that nothing
incriminating materials have been recovered
from the possession of the applicant at the time
of recovery. He further submits that the police
has falsely shown the recovery of Ganja from
the possession of the applicant and the alleged
recovery of Ganja was also not sent for
chemical examination. The applicant has no
criminal history. He further submits that the
alleged recovery of Ganja is less than the
commercial quantity. The applicant is nothing to
do with the aforesaid offence. The applicant is
languishing in jail since 23.06.2020.

Learned counsel for the informant as
well as learned A.G.A opposed the prayer for
bail but could not dispute the aforesaid facts and
the legal submissions as argued by the learned
counsel for the applicant.

Keeping in view the nature of the
offence, evidence, complicity of the accused and
submissions of learned counsel for the parties, I
am of the view that the applicant has made out a
case for bail.

Let the applicant Rishabh Kumar, who
is involved in Case Case Crime No.325 of 2020,
under Section 8/20 N.D.P.S. Act, Police Station -
Jhunsi, District Prayagrj, be released on bail on
his furnishing a personal bond and two sureties
each in the like amount to the satisfaction of the
court concerned subject to following conditions.
Further, before issuing the release order, the
sureties be verified...................."

Section 37 of N.D.P.S. Act

9. There is no dispute that commercial
quantity of Ganja is 20 Kgs. Recovered and
seized total 157.570 Kgs. of Ganja (recovery of
92.410 Kgs. of Ganja from Honda City car and
65.160 Kgs. of Ganja from Swift Dzire car) in
this case are much more than the commercial
quantity, therefore, provisions of section 37 of
Narcotics Drugs & Psychotropic Substances Act
are attracted in this case, which is in addition to
section 439 of Cr.P.C. and mandatory in nature.

10. In view of Section 37 of the N.D.P.S.
Act, before granting bail for the offence under
N.D.P.S. Act twin conditions as provided under
Section 37(1)(b) (i) and (ii) have to be satisfied.
Section 37 of the N.D.P.S. Act is quoted herein
below:

"37. Offences to be cognizable and
non-bailable. - (1) Notwithstanding anything
contained in the Code of Criminal Procedure,
1973 (2 of 1974)-
11 All. Dheeraj Kumar Shukla Vs. State of U.P.
23

(a) every offence punishable under this
Act shall be cognizable;

(b) no person accused of an offence
punishable for [offences under section 19 or
section 24 or section 27A and also for offences
involving commercial quantity] shall be released
on bail or on his own bond unless-

(i) the Public Prosecutor has been
given an opportunity to oppose the application
for such release, and

(ii) where the Public Prosecutor
opposes the application, the court is satisfied
that there are reasonable grounds for believing
that he is not guilty of such offence and that he is
not likely to commit any offence while on bail.

(2) The limitations on granting of bail
specified in clause (b) of sub-section (1) are in
addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force, on
granting of bail."

11. On several occasions, the Apex Court
has considered the issue relating to provisions of
Section 37 of the N.D.P.S. Act and after
wholesome treatment laid down guidelines in
this regards, which would be useful to quote
herein-below:

i. The expression 'reasonable grounds'
has not been defined in the N.D.P.S. Act, but the
Apex Court in the case of Union of India Vs.
Rattan Mallik @ Habul, 2009 (1) SCC (Crl)
831, has settled the expression "reasonable
grounds". Relevant paragraphs no. 12, 13 and 14
are quoted herein below:

"12.It is plain from a bare reading of
the non-obstante clause in the Section and subsection (2) thereof that the power to grant bail
to a person accused of having committed offence
under the NDPS Act is not only subject to the
limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973, it is also
subject to the restrictions placed by sub-clause
(b) of sub- section (1) of Section 37 of the NDPS
Act. Apart from giving an opportunity to the
Public Prosecutor to oppose the application for
such release, the other twin conditions viz; (i)
the satisfaction of the Court that there are
reasonable grounds for believing that the
accused is not guilty of the alleged offence; and
(ii) that he is not likely to commit any offence
while on bail, have to be satisfied. It is manifest
that the conditions are cumulative and not
alternative.
The
satisfaction
contemplated
regarding the accused being not guilty, has to be
based on "reasonable grounds".

13.
The
expression
`reasonable
grounds' has not been defined in the said Act but
means something more than prima facie
grounds. It connotes substantial probable causes
for believing that the accused is not guilty of the
offence he is charged with. The reasonable
belief contemplated in turn points to existence of
such facts and circumstances as are sufficient in
themselves to justify satisfaction that the
accused is not guilty of the alleged offence.
[Vide Union of India Vs. Shiv Shanker Kesari,
2007(7)
SCC
798]
Thus,
recording
of
satisfaction on both the aspects, noted above, is
sine qua non for granting of bail under the
NDPS Act.

14. We may, however, hasten to add
that while considering an application for bail
with reference to Section 37 of the NDPS Act,
the Court is not called upon to record a finding
of 'not guilty'. At this stage, it is neither
necessary nor desirable to weigh the evidence
meticulously to arrive at a positive finding as to
whether or not the accused has committed
offence under the NDPS Act. What is to be seen
is whether there is reasonable ground for
believing that the accused is not guilty of the
offence(s) he is charged with and further that he
is not likely to commit an offence under the said
Act while on bail. The satisfaction of the Court
about the existence of the said twin conditions is
for a limited purpose and is confined to the
question of releasing the accused on bail."
24 INDIAN LAW REPORTS ALLAHABAD SERIES

ii. In case of Union of India Vs. Ram
Samujh 1999 (9) SCC 429, Apex Court has
made following observations in paragraph 7 of
the said judgment, which are reproduced herein
below:-

"7. It is to be borne in mind that the
aforesaid legislative mandate is required to be
adhered and followed. It should be borne in
mind that in murder case, accused commits
murder of one or two persons, while those
persons who are dealing in narcotic drugs are
instruments in causing death or in inflicting
death blow to number of innocent young victims,
who are vulnerable: it causes deleterious effects
and deadly impact on the society; they are a
hazard to the society; even if they are released
temporarily, in all probability, they would
continue their nefarious activities of trafficking
and/or dealing in intoxicants clandestinely.
Reason may be large stake and illegal profit
involved. This Court, dealing with the contention
with regard to punishment under NDPS Act, has
succinctly observed about the adverse effect of
such activities in Durand Didien v. Chief
Secretary. Union Territory of Goa. [1990] 1
SCC 95 as under:

"24.With deep concern, we may point
out that the organised activities of the
underworld and the clandestine smuggling of
narcotic drugs and psychotropic substances into
this country and illegal trafficking in such drugs
and substances have led to drug addiction
among a sizeable section of the public,
particularly the adolescents and students of both
sexes and the menace has assumed serious and
alarming proportion in the recent years.
Therefore, in order to effectively control and
eradicate
this
proliferating
and
booming
devastating menace, causing deleterious effects
and deadly impact on the society as a whole, the
Parliament in the wisdom has made effective
provisions by introducing this Act 81 of 1985
specifying mandatory minimum imprisonment
and fine."

iii. In Union of India Vs. Shiv
Shankar Kesari, (2007) 7 SCC 798, Apex
Court elaborated and explained the conditions
for granting of bail as provided under Section 37
of the Act. Relevant paragraph Nos. 6 and 7 are
extracted here in below :

"6. As the provision itself provides no
person shall be granted bail unless the two
conditions
are
satisfied.
They
are;
the
satisfaction of the Court that there are
reasonable grounds for believing that the
accused is not guilty and that he is not likely to
commit any offence while on bail. Both the
conditions have to be satisfied. If either of these
two conditions is not satisfied, the bar operates
and the accused cannot be released on bail.

7. The expression used in Section 37
(1)(b) (ii) is "reasonable grounds". The
expression means something more than prima
facie grounds. It connotes substantial probable
causes for believing that the accused is not
guilty of the offence charged and this reasonable
belief contemplated in turn points to existence of
such facts and circumstances as are sufficient in
themselves to justify recording of satisfaction
that the accused is not guilty of the offence
charged."

iv. In recent decision of Apex Court in
State of Kerala Etc. Vs. Rajesh Etc. AIR 2020
Supreme Court 721, Apex Court again
considered the scope of Section 37 of N.D.P.S.
Act and relying upon earlier decision in Ram
Samujh (Supra) held as under:

"20. The scheme of Section 37 reveals
that the exercise of power to grant bail is not
only subject to the limitations contained under
Section 439 of the CrPC, but is also subject to
the limitation placed by Section 37 which
commences with non-obstante clause. The
operative part of the said section is in the
negative form prescribing the enlargement of
bail to any person accused of commission of an
offence under the Act, unless twin conditions are
satisfied. The first condition is that the
prosecution must be given an opportunity to
11 All. Dheeraj Kumar Shukla Vs. State of U.P.
25
oppose the application; and the second, is that
the Court must be satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence. If either of these two
conditions is not satisfied, the ban for granting
bail operates.

21.
The
expression
"reasonable
grounds" means something more than prima
facie grounds. It contemplates substantial
probable causes for believing that the accused is
not guilty of the alleged offence. The reasonable
belief contemplated in the provision requires
existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction
that the accused is not guilty of the alleged
offence. In the case on hand, the High Court
seems to have completely overlooked the
underlying object of Section 37 that in addition
to the limitations provided under the CrPC, or
any other law for the time being in force,
regulating the grant of bail, its liberal approach
in the matter of bail under the NDPS Act is
indeed uncalled for."

v. The Apex Court in Union of India
vs Prateek Shukla, AIR, 2021 SC 1509 has
held that merely recording the submissions of
the parties does not amount to an indication of a
judicial or, for that matter, a judicious
application of mind. The provisions of Section
37 of the N.D.P.S. Act provide the legal norms
which have to be applied in determining whether
a case for grant of bail has been made out. The
relevant paragraph nos. 11,12 and 13 of the said
judgment are reproduced herein under :

"11. Ex facie, there has been no
application of mind by the High Court to the
rival submissions and, particularly, to the
seriousness of the allegations involving an
offence punishable under the provisions of the
NDPS Act. Merely recording the submissions of
the parties does not amount to an indication of a
judicial or, for that matter, a judicious
application of mind by the Single Judge of the
High Court to the basic question as to whether
bail should be granted. The provisions of
Section 37 of the NDPS Act provide the legal
norms which have to be applied in determining
whether a case for grant of bail has been made
out. There has been a serious infraction by the
High Court of its duty to apply the law. The
order granting bail is innocent of an awareness
of the legal principles involved in determining
whether bail should be granted to a person
accused of an offence under the NDPS Act. The
contention of the respondent that he had
resigned from the Company, Altruist Chemicals
Private Limited, must be assessed with reference
to the allegations in the criminal complaint
which has been filed in the Court of the District
and Sessions Judge. Gautam Budh Nagar
(Annexure P-6).

The relevant part of the complaint
reads as follows:

"18. That during investigation of the
case, letter dated 27.11.2018 was sent to the
Registrar of Companies for providing details of
the Directors etc of the company in question i.e.
U/s Altruist Chemicals Pvt Ltd and vide its
report dated 03.12.2018 Registrar of Companies
provided the said information and from the
perusal of said information/documents, it
reveals that accused Prateek Shukla and
Bismillah Khan are the Directors.

Accused Himanshu Rana was also
Director but he has resigned from the
directorship. From the perusal of the documents,
it also reveals that they had registered the
company, i.e., Altruist Chemical Pvt. Ltd. At
001, Block Ab-Sector-45, Noida, which is a
residential area and accused persons also
obtained Unique Registration No. from the NCB
on the above said premises."

12. We may also note at this stage the
contention of the respondent in the application
for bail which was filed before the High Court
(Annexure P-8) that he had transferred 99% of
his shareholding in the Company to Bismilla
Khan Ahmadzai. Bismilla Khan Ahmadzai, as
the prosecution alleges at this stage, is an
Afghan national. The application for bail which
26 INDIAN LAW REPORTS ALLAHABAD SERIES
had been filed before the High Court as well as
the counter affidavit which has been filed in the
present proceedings suppress more than what
they disclose. Be that as it may, we are of the
view that the High Court was clearly not
justified in granting bail and the reasons
provided by the High Court, as we have already
indicated above, do not reflect application of
mind to the seriousness of the offence which is
involved. Indicating that the respondent as an
educated person with a Bachelor of Technology
"may not commit any offence" is an extraneous
circumstances which ought not to have weighed
with the High Court in the grant of bail for an
offence under the NDPS Act.

13. For the above reasons, we are of
the view that the High Court has mis-applied the
law to the facts in arriving at a decision for the
grant of bail to the respondent. We accordingly
allow the appeal and set aside the impugned
judgment and order of the High Court dated 7
May 2019. As a consequence, the bail which has
been granted by the High Court to the
respondent
shall
stand
cancelled.
The
respondent shall surrender forthwith as a result
of the cancellation of bail by the present order of
this Court."

vi. Narcotics Control Bureau vs
Laxman Prasad Soni, Etc, (Criminal Appeal
No. 438-440 of 2021 decided by the Apex Court
on 19.04.2021).

In the said case, there was recovery of
229 Kgs. of Ganja from the possession of
accused persons. Out of which 25 Kgs. of Ganja
was recovered from one vehicle occupied by the
accused. There was another vehicle namely
truck in which rest of the contraband material
was found. The accused persons, who were
arrested along with 25 Kgs. Ganja have been
granted bail by the co-ordinate Bench of this
Court vide order dated 23.09.2019 in Criminal
Misc. Bail Application Nos. 38036 of 2019,
38066 of 2019 and 38048 of 2019 without
considering provisions of Section 37 of the
N.D.P.S. Act.

The aforesaid order dated 23.09.2019
has been set-aside by the Apex Court on account
of the reason that the applications for bail were
allowed by the High Court without considering
the import and effect of Section 37 of the
N.D.P.S. Act.

Possession

12. Possession is the core ingredient to be
established before the accused are made
criminally liable. The expression 'possession' is
a polymorphous term, which assumes different
colour in different context as settled by the Apex
Court. There are three kind of possession,
namely,
Physical
Possession,
Constructive
Possession and Conscious Possession. The
words
'conscious
possession'
connotes
a
particular state of mind which is deliberate and
intended.

i. Supreme Court while dealing with
the question of possession and application of
Section 50 in the case of Megh Singh Vs. State
of Punjab, 2003 CRI. L.J. 4329, held that word
'possession'
includes
conscious
possession.
Further Section 50 applies in case of personal
search of a person and it does not extend to
search of a vehicle or container or a bag or
premises. Relevant paragraph nos. 9 to 13 and
16 are extracted here as under:

"9. The expression 'possession' is a
polymorphous term which assumes different
colours in different contexts. It may carry
different meanings in contextually different
backgrounds. It is impossible, as was observed
in Superintendent & Remembrancer of Legal
Affairs, West Bengal v. Anil Kumar Bhunja and
Ors. (AIR 1980 SC 52), to work out a completely
logical and precise definition of "possession"
uniformally applicable to all situations in the
context of all statutes.

10. The word 'conscious' means
awareness about a particular fact. It is a state of
mind which is deliberate or intended.
11 All. Dheeraj Kumar Shukla Vs. State of U.P.
27

11. As noted in Gunwantlal v. The
State of M.P. (AIR 1972 SC 1756) possession in
a given case need not be physical possession but
can be constructive, having power and control
over the article in case in question, while the
person whom physical possession is given holds
it subject to that power or control.

12. The word 'possession' means the
legal right to possession (See Health v. Drown
(1972) (2) All ER 561 (HL). In an interesting
case it was observed that where a person keeps
his fire arm in his mother's flat which is safer
than his own home, he must be considered to be
in possession of the same. (See Sullivan v. Earl
of Caithness (1976 (1) All ER 844 (QBD).

13. 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 presumption available in
law. Similar is the position in terms of Section 54
where also presumption is available to be drawn
from possession of illicit articles. This position was
highlighted in Madan Lal and Anr. v. State of
Himachal Pradesh (2003 (6) SCALE 483).

X X X X X X X

16. A bare reading of Section 50
shows that it only applies in case of personal
search of a person. It does not extend to search
of a vehicle or a container or a bag, or
premises. (See Kalema Tumba v. State of
Maharashtra and Anr. (JT1999 (8) SC 293), The
State of Punjab v. Baldev Singh (JT1999 (4) SC
595), Gurbax Singh v. State of Haryana(2001(3)
SCC 28). The language of Section 50 is
implicitly clear that the search has to be in
relation to a person as contrasted to search of
premises, vehicles or articles. This position was
settled beyond doubt by the Constitution Bench
in Baldev Singh's case (supra). Above being the
position,
the
contention
regarding
noncompliance of Section 50 of the Act is also
without any substance."

ii. The Apex Court in the case of
Dehal Singh v. State of Himanchal Pradesh,
2011 (72) ACC 661, has again consider the
issue of "conscious possession".

In the said case, two accused persons
were travelling in a car and they knew to each
other. From the windows/door of the said car,
recovery of 27 Kgs. 800 gms. of charas was
made, which were found concealed between the
shields and doors of the car. The Apex Court in
the said case taking into consideration the
provisions of Sections 35 and 54 of the N.D.P.S.
Act has held that accused was not only in
possession,
but
conscious
possession
of
recovered contraband also.

Presumption under Section 54 of the
N.D.P.S. Act

13. In this case, total 157.570 Kgs. Ganja
has been recovered from two vehicles, out of
which 92.410 Kgs. Ganja has been recovered
from Honda City car, in which three persons,
namely, Rishabh Kumar (driver), Dhiraj Maurya
and Praveen Maurya alias Punit Maurya (owner
of vehicle) were travelling. Similarly, 65.160
Kgs. Ganja has been recovered from Swift Dzire
car, which was driven by the applicant, which is
in the name of his brother Sonu Shukla, who
also made accused during investigation. Both the
aforesaid vehicles were apprehended together by
police personnel. The applicant was the only
person, who was in actual control of Swift Dzire
car containing 65.160 Kgs. of Ganja. As such,
conscious and constructive possession of the
accused applicant over the recovered Ganja is
apparent on record.

There is specific statutory presumption
in relation to contraband that comes within the
ambit of N.D.P.S. Act. In view of Section 54 of
the N.D.P.S. Act presumption shall be drawn
against the accused unless and until the contrary
is proved. The expression "unless and until the
contrary is proved", clearly imposes the burden
28 INDIAN LAW REPORTS ALLAHABAD SERIES
of proving that possession of prohibited
substance is legal on the accused himself.

Enmity and False Implication

14. No material has been brought on record
by the applicant to show that there was any prior
ill-will or enmity of the applicant with the police
personnel concerned. Illicit trafficking is an
organized crime and are done adopting different
modus operandi by a group of persons with their
different role. So far as plea of false implication
is concerned, in my view, it is a stereo typed
defence raised in every case, where accused are
found in possession of contraband. Experience
shows that such statements are made in almost
every case, therefore, such kind of plea of false
implication without any basis is not liable to be
accepted at this stage.

Independent Witness

15. Nowadays, totally unconcerned people
do not dare to become witness against criminals,
as they have a lot of financial and political
patronage available to them as well as muscle
power. Public witnesses against the criminals
and drug traffickers are always under the threat,
therefore police personnel cannot be seen within
eye of suspicion particularly when there is a
huge recovery of contraband and there is no
prior ill-will of police personnel with the
accused and they are discharging their official
duty. Huge quantity of recovered 157.570 Kgs.
Ganja cannot be planted.

Detention Period

16. So far as argument of learned
counsel for the applicant that applicant is in
jail since 24.06.2020 is concerned, it is
relevant to mention that in the case of Union
of India v. Rattan Mallik (supra), the
accused was in jail for last three years, but
the Apex Court has made an observation that
the stated circumstances may be relevant for
grant of bail in matters arising out of
conviction under Penal Code etc., but are not
sufficient
to
satisfy
the
mandatory
requirements as stipulated in clause (b) of
sub-section (1) of Section 37 of the N.D.P.S.
Act.

Parity

17. From perusal of bail order dated
31.05.2021 of co-accused Rishabh Kumar
passed in Criminal Misc. Bail Application
No. 17226 of 2021, I find that co-accused
Rishabh Kumar has been granted bail without
considering the provisions of Section 37 of
N.D.P.S. Act. It is well settled that recording
of finding in terms of Section 37 of N.D.P.S.
Act is a sine qua non for granting bail under
N.D.P.S. Act. Though, there was a huge
recovery of 92.410 Kgs Ganja from the
Honda City car, which was driven by coaccused and the same is much more than
commercial quantity, but on behalf of coaccused it has been wrongly argued before
the co-ordinate bench that alleged recovery of
Ganja is less than commercial quantity. Apart
from above, no reason has been recorded
while granting bail to co-accused Rishabh
Kumar. In such circumstances, this Court is
of the considered view that if co-accused
obtained bail by misrepresentation of facts,
other accused on same footing are not
entitled to bail on the ground of parity, ergo
order dated 31.05.2020 is not helpful to the
applicant.

In quite recent, the Apex Court in
the case of Sonu vs Sonu Yadav and
another, AIR 2021 SC 201; deprecated the
practice of passing such kind of orders. The
relevant paragraph nos. 11 and 12 of the said
judgments are reproduced herein under :
11 All. Dheeraj Kumar Shukla Vs. State of U.P.
29

"11. In the earlier part of this
judgment, we have extracted the lone sentence in
the order of the High Court which is intended to
display some semblance of reasoning for
justifying the grant of bail. The sentence which
we have extracted earlier contains an omnibus
amalgam
of
(i)
"the
entire
facts
and
circumstances of the case"; (ii) "submissions of
learned Counsel for the parties"; (iii) "the
nature
Crl.A.377/2021
of
offence";
(iv)
"evidence"; and (v) "complicity of accused".
This is followed by an observation that the
"applicant has made out a case for bail",
"without expressing any opinion on the merits of
the case". This does not constitute the kind of
reasoning which is expected of a judicial order.
The High Court cannot be oblivious, in a case
such as the present, of the seriousness of the
alleged offence, where a woman has met an
unnatural end within a year of marriage. The
seriousness of the alleged offence has to be
evaluated in the backdrop of the allegation that
she was being harassed for dowry; and that a
telephone call was received from the accused in
close-proximity to the time of death, making a
demand. There are specific allegations of
harassment against the accused on the ground
of dowry. An order without reasons is
fundamentally contrary to the norms which
guide the judicial process. The administration of
criminal justice by the High Court cannot be
reduced to a mantra containing a recitation of
general observations. That there has been a
judicious application of mind by the judge who
is deciding an application under Section 439 of
the CrPC must emerge from the quality of the
reasoning which is embodied in the order
granting bail. While the reasons may be brief, it
is the quality of the reasons which matters the
most. That is because the reasons in a judicial
order unravel the thought process of a trained
judicial mind. We are constrained to make these
observations because the reasons indicated in
the judgment of the High Court in this case are
becoming increasingly familiar in matters which
come to this Court. It is time that such a practice
is discontinued and that the reasons in support
of orders granting bail comport with a judicial
process
which
brings
credibility
to
the
administration
of
criminal
justice.
Crl.A.377/2021.

12. For the above reasons, we are of
the view that the order of the High Court
granting bail without due application of mind to
the relevant facts and circumstances as well to
the provisions of the law requires the
interference of this Court."

18. As such, in the light of dictum of
aforesaid judgments of the Apex Court as well
as the reasons mentioned in preceding paragraph
no.17, this Court is of the view that the orders
which have been passed ignoring the settled law
laid down by the Apex Court regarding Section
37 of the N.D.P.S.