# Vinay Kumar Mishra v. Union of India

- **Citation:** (2020) 8 ILRA 244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-24
- **Case number:** Bail No. 10163 of 2019
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-mishra-v-union-of-india-46028
- **Pages:** 18

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 19, 24, 27-A - The Narcotics
Drugs And Psychotropic Substances Act,
1985 -Possession of Commercial quantity -
Ground for bail - Not unless P.P. has been
given opportunity to oppose bail application -
In case bail opposed by P.P. - There should
be reason to believe that applicant not guilty
and not likely to commit offence while on bail
- No such ground made out .

The bail is rejected. (E-2)

## Text

_Characters 0–39,973 of 57,110. This is a partial read: ask again with offset=39973 for what follows._

244 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)08ILR A244
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.07.2020

BEFORE

THE HON'BLE JASPREET SINGH, J.

Bail No. 10163 of 2019

Vinay Kumar Mishra ...Applicant
Versus
Union of India ...Opposite Party

Counsel for the Applicant:
Ayodhya Prasad Mishra

Counsel for the Opposite Party:
Akhilesh Kumar Awasthi

Criminal Law- Indian Penal Code, 1860-
Section 19, 24, 27-A - The Narcotics
Drugs And Psychotropic Substances Act,
1985 -Possession of Commercial quantity -
Ground for bail - Not unless P.P. has been
given opportunity to oppose bail application -
In case bail opposed by P.P. - There should
be reason to believe that applicant not guilty
and not likely to commit offence while on bail
- No such ground made out .

The bail is rejected. (E-2)

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The instant pre-trial bail application
has been moved by the applicant who has
been charged under Sections 8/20/29/60 (3)
of the Narcotic Drugs & Substances Act
(hereinafter referred to as NDPS Act), P.S.
NCB, Lucknow.

2. Heard Sri A.P. Mishra, learned
counsel for the applicant and Sri
Akhilesh
Kumar
Awasthi,
learned
counsel for the Narcotics Control Bureau.

3. The facts giving rise to the
instant bail application are that as per the
prosecution case, it is alleged that on the
basis of information given by the Zonal
Director of Narcotics Control Bureau to
the complainant that Ganja in huge
quantity is being transported hidden in a
concealed cavity in Truck No. UP 44 T
1781 and is moving from Chhatisgarh
and would be reaching Faizabad via
Akbarpur Road between 4:00 PM to 6:00
PM on 17.11.2019.

4. On the basis of the aforesaid
information
a
raiding
team
was
constituted. The information was reduced
in writing by the complainant and was
placed
before
the
superior
officerthereafter the complianant along
with
other
departmental
officers
proceeded in the departmental vehicles
and reached the Devkali Chauraha at
Faizabad at around 03:30 PM on
17.01.2019. After reaching the aforesaid
Devkali Chauraha, Sri Rajesh Singh, Sub
Inspector of the U.P. Police was also
informed about the information regarding
the transportation of Ganja and his
assistance was sought in the search and
seizure proceedings, which was accepted
and he along with raiding team of the
NCB positioned themselves.

5. At around 04:30 PM, the said
truck was spotted and was intercepted by
the raiding team near the petrol pump on
the Akbarpur Faizabad Highway on the
Akbarpur side. Upon intercepting the
said Truck bearing No. UP 44 T 1781 two
person were found traveling therein who
identified themselves as Vivek Kumar
Mishra (the present applicant) and the
other identified himself as Kaleem.
8 All. Vinay Kumr Mishra Vs. Union of India
245

6. It is also the case of the
prosecution that both the persons were
briefed about the legal provisisions of
Sections 50 of the NDPS Act before they
were searched. They were informed
separately of their rights including the
right to be searched before a Magistrate
or a Gazetted officer. Upon the request of
the applicant and the other co-accused
the search was conducted in presence of
a Gazetted Officer Sri Mohd. Nawab,
Superintendent of NCB, Lucknow and
nothing incriminating was found from
their possession.

7. However, while the truck was
searched, the hidden cavity was discovered
and both the applicant and the co-accused
Kaleem, informed that the said cavity was
closed with nuts and bolts which could be
opened from behind the driver's seat. It was
accordingly done and from the hidden
cavity 15 jute bags were recovered. Upon
opening the said jute bags, 167 small
packets were found and upon testing the
same, it tested positive for Ganja. From the
seized 15 bags containing 167 small
packets, a total quantity of 349.250 Kgs of
Ganja was recovered.

8. During the search and seizure
proceedings, samples were taken from
the said seized contraband which was
sealed and sent for inspection to a
laboratory and later as per the report it
tested positive for Ganja while the
remaining packets were sealed and
confiscated. The search cum seizure
memo was prepared and thereafter the
statements of the applicant and the coaccused Kaleem were recorded under
Section 67 of the NDPS Act.

9. As per the statement of the
applicant and co-accused Kaleem, it
revealed that the seized goods belonged
to one Sri Chand Khan, R/o Gonda while
the contraband was loaded by one Sri
Amaan and the Truck in question
belonged to one Sri Sagir Ahmad R/o
Gonda. It is in this backdrop that the
applicant has been apprehended and has
been in Jail since 18.11.2019.

10. The first submission of Sri A.P.
Mishra, learned counsel for the applicant, is
that there has been a complete violation of
Section 42 of the NDPS Act. It has been
submitted that in paragraph 17 of the bail
application there has been a clear averment
that there is non-compliance of Section 42
of the NDPS Act, inasmuch as, the
information received and reduced in writing
was not done by the officer who received it
nor there is any material to indicate that the
aforesaid provision has been complied with.
It has also been urged that Sub Section 2 of
Section 42 of the NDPS Act has also not
been complied with. It has been submitted
that the information conveyed by the Zonal
Director Sri Birendra Kumar, NCB does not
speak regarding the source of such
information having been received by him
and he admittedly did not reduce the said
information in writing.

11. The second submission of Sri
Mishra is that there is non-compliance of
Section 50 of the NDPS Act, inasmuch
as, the search was conducted without the
rights being informed to the applicant
and
the
other
co-accused
before
conducting the search. He has further
submitted that the consent memo does
not bear the place and time of its
preparation
nor
does
it
bear
the
signatures of other members of the team.

12. The third submission of Sri
Mishra is, that there is no material to
246 INDIAN LAW REPORTS ALLAHABAD SERIES
indicate that the applicant had the
conscious possession over the contraband
so
recovered
and
consequently
in
absence of the conscious possession, the
applicant cannot be charged especially
when he had already disclosed who the
owner of the contraband was rather the
said owner has not been charge-sheeted
but the applicant who is a poor truck
driver and otherwise having no nexus
with
the
alleged
crime
has
been
apprehended and has been languishing in
Jail since 18.01.2019.

13. Sri Mishra in support of his
submission has relied upon the decision
of the Apex Court in the case of Sarija
Bano Vs. State through Inspector of
Police reported in 2004 (12) SCC 266.
Sri Mishra while heavily relying upon the
aforesaid decision of Sarija Bano (Supra)
has submitted that now it is a well settled
that the compliance of Section 42 of the
NDPS Act is mandatory and the same is
also a relevant consideration for the
Court
while
considering
a
bail
application. Sri Mishra has also relied on
the decision of the Apex Court in the case
of Abdul Rashid Ibrahim Mansuri Vs.
State of Gujarat reported in 2000 (2)
SCC 513 and State of Rajasthan Vs. Jag
Raj Singh reported in 2016 (11) SCC
687 to buttress his submissions.

14. Sri Akhilesh Awasthi, learned
counsel for the NCB while refuting the
aforesaid submission has submitted that
the record would indicate that there is an
adequate legal compliance of Section 42
of the NDPS Act, inasmuch as, the
information received was duly reduced in
writing and it was also reported to the
Senior Officer within the time prescribed
under Section 42 (2) of the NDPS Act. It
has also been submitted that it is not the
case where Section 42 of the NDPS Act
has not been complied with, rather the
material apparently indicates that there
has been a complete compliance of
Section 42 of the NDPS Act. Sri Awasthi
has further urged that even otherwise the
aforesaid plea regarding the compliance
of Section 42 of the NDPS Act is a
matter which is to be considered during
the trial and may not be very relevant at
the stage of consideration of the bail
application.

15. Sri Awasthi has further urged
that similarly the record would indicate
that there has been complete compliance
of Section 50 of the NDPS Act and even
the aforesaid plea is a matter which is to
be considered during the trial. Thus, it is
urged that there has been complete
compliance of both Section 42 and
Section 50 of the NDPS Act, however,
only hyper-technical plea is being raised
by the learned counsel for the applicant
which does not merit consideration.
Apart from the fact that what is important
to be considered by the Court while
considering an application for bail is the
mandate which has been provided under
Section 37 of the NDPS Act.

16. Sri Awasthi has vehemently urged
that it would indicate that the applicant was
clearly in the knowledge of the presence of
the contraband in the Truck which was
being transported being hidden in a special
cavity. The applicant was also aware that it
was loaded by one Sri Amaan and it
belonged to Sri Chand Khan resident of
Gonda. The Truck also belonged to one Sri
Sagir Ahmad and the fact remains that both
the applicant and the co-accused Kaleem
were found in the truck transporting the
aforesaid
contraband
which
was
apprehended on the highway.
8 All. Vinay Kumr Mishra Vs. Union of India
247

17. Sri Awasthi has also urged
that Section 35 of the NDPS Act permits
the presumption of culpable mental state
to be drawn, therefore, since the
contraband was found from the truck
which was being driven by the applicant,
hence, it cannot be said that he did not
have the conscious possession. Moreover,
in view of the presumption so made, it
was for the applicant to disclose and
rebut by cogent material to indicate that
he did not have the conscious possession.

18. Sri Awasthi has also submitted that
efforts were made to trace out the other
offenders namely Sri Chand Khan, Sri Amaan
and Sri Saghir Ahmad, however, they are not
traceable and while keeping the option open to
proceed against the said offenders, the
complaint was filed against the applicant and
the co-accused Kaleem. Merely because the
other offenders are not parties in the complaint
as they were not traceable till the time of filing
of the complaint, it cannot be said that they have
been left out. Thus, the submissions raised by
the learned counsel for the applicant do not
warrant any merit and the bail application of the
applicant deserves to be rejected.

19. Sri Awasthi in support of his
submissions has relied upon the decision
of the Apex Court in the case of Union of
India Vs. Ramsamujh reported in 1999
(9) SCC 429, Union of India Vs. Ratan
Malik reported in 2009 (2) SCC 264 and
State of Kerala Vs. Rajesh reported in
2020 SCC Online SC 81.

20. The Court has considered the
rival submissions and has also perused
the material available on record and the
case laws cited by the both parties.

21. The primary submission of Sri
A.P. Mishra revolves around the noncompliance of Section 42 and Section 50
of the NDPS Act. While advancing his
submissions, Sri Mishra has urged that
the record does not indicate that there has
been any compliance of Section 42 (1) or
42 (2) of the NDPS Act. It has been
submitted that the applicant has taken a
specific plea in paragraph 17 of the bail
application in respect of non-compliance
of Section 42 of the NDPS Act. It has
been submitted by Sri Mishra that in
paragraph 19 of the counter affidavit a
reply to the paragraph 17 of the Bail
Application has been given and it has
been
alleged
and
stated
that
the
information available with the Officer incharge was passed to Sri Narendra
Kumar, Intelligence Officer empowered
under Section 42 (1) of the NDPS Act
and who reduced the same in writing and
put up the same before the Zonal
Director to proceed further, thus, the
provision of both Section 41 (1) and 42
(2) of the NDPS Act have been duly
complied with, while no document has
been annexed indicating the recording of
the information and forwarding the same
to the superior officer, as required in law.

22. Sri Mishra has further urged
that the officer before whom the search
had taken place namely Sri Mohd.
Nawab was a member of the raiding
party, hence, he could not be treated to be
an independent person. There is nothing
to indicate that there was any difficulty in
getting the search of the applicant
conducted before a Magistrate or a
gazetted officer. It has also been urged
that in paragraph 20 of the counter
affidavit, while giving a reply to the
paragraph 18 of the bail application, the
prosecution could not establish the
compliance of Section 50 of the NDPS
Act, hence, for the aforesaid reasons,
248 INDIAN LAW REPORTS ALLAHABAD SERIES
there is non-compliance of the mandatory
provisions,
hence,
the
applicant
is
entitled to be enlarged on bail.

23. In order to test the submissions
of Sri Mishra, it will be gainful to
consider Section 42 of the NDPS Act
which reads as under:-

"42. Power of entry, search,
seizure and arrest without warrant or
authorisation.

(1) Any such officer (being an
officer superior in rank to a peon, sepoy
or constable) of the departments of
central
excise,
narcotics,
customs,
revenue
intellegence
or
any
other
department of the Central Government
including para-military forces or armed
forces as is empowered in this behalf by
general or special order by the Central
Government, or any such officer (being
an officer superior in rank to a peon,
sepoy or constable) of the revenue, drugs
control, excise, police or any other
department of a State Government as is
empowered in this behalf by general or
special order of the State Government, if
he has reason to believe from persons
knowledge or information given by any
person and taken down in writing that
any narcotic drug, or psychotropic
substance, or controlled substance in
respect of which an offence punishable
under this Act has been committed or any
document or other article which may
furnish evidence of the commission of
such offence or any illegally acquired
property or any document or other
article which may furnish evidence of
holding any illegally acquired property
which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is
kept or concealed in any building,
conveyance or enclosed place, may
between sunrise and sunset,

(a) enter into and search any
such building, conveyance or place;

(b) in case of resistance, break
open any door and remove any obstacle
to such entry;

(c)
seize
such
drug
or
substance and all materials used in the
manufacture thereof and any other article
and any animal or conveyance which he
has reason to believe to be liable to
confiscation under this Act and any
document or other article which he has
reason to believe may furnish evidence of
the commission of any offence punishable
under this Act or furnish evidence of
holding any illegally acquired property
which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act;
and

(d) detain and search, and, if he
thinks proper, arrest any person whom he
has reason to believe to have committed
any offence punishable under this Act:

Provided that if such officer
has reason to believe that a search
warrant or authorisation cannot be
obtained without affording opportunity
for the concealment of evidence or
facility for the escape of an offender, he
may enter and search such building,
conveyance or enclosed place at any time
between
sunset
and
sunrise
after
recording the grounds of his belief.

(2) Where an officer takes
down any information in writing under
sub-section (1) or records grounds for his
belief under the proviso thereto, he shall
within seventy-two hours send a copy
thereof
to
his
immediate
official
superior.]"

24. Upon plain reading of the
aforesaid Section, it would indicate that
Sub section (1) of Section 42 of the
8 All. Vinay Kumr Mishra Vs. Union of India
249
NDPS Act requires an officer not below
the rank of a Peon/Sepoy or constable of
the Departments as mentioned in the said
section therein and where he has reason
to believe from person's knowledge or
information given by any person, to be
taken down in writing that any narcotic
drug
or psychotropic
substance
or
controlled substance in respect of which
an offence is punishable under the Act
has been committed or any document or
other article which may furnish evidence
of the commission of such offence or the
illegally acquired property or any other
documents which is liable for seizure or
forfeiture is kept or concealed in any
building, conveyance or enclosed place
and further Sub section (2) provides that
where the officer takes down the
information in writing under Sub section
(1) or records the grounds for his belief
under the proviso mentioned in the sub
Section (1) above, he shall within 72
hours, send a copy thereof to his
immediate official superior.

25. The compliance of this Section
has been disputed by the learned counsel
for the applicant. The counter affidavit
filed on behalf of the NCB in paragraph
19 states that the information available
with the officer in-charge i.e. Sri
Birendra Kumar, Zonal Director was
passed
to
Narendra
Kumar,
the
Intelligence Officer who recorded the
same in writing and put it before the
Zonal Director for further action.

26. The record further indicates that
the applicant along with his bail
application has annexed a typed copy of
the information having been reduced in
writing by the complainant as Annexure
No. 3. From the perusal of the aforesaid
document, the submission of the learned
counsel for the NCB gets credence that
the information was received from Sri
Birendra Kumar, Zonal Director, NCB
which was reduced in writing by Sri
Narendra Kumar, the Intelligence Officer
and the same was also placed before the
officer concerned within the prescribed
time as provided under Sub Section 2 of
Section 42 of the NDPS Act. Sri Mishra
could not indicate as to in what manner
the aforesaid information was wanting of
the requisites mentioned in Section 42 of
the NDPS Act.

27. Another aspect to be considered
is that apparently the compliance has
been made by the NCB in respect of
Section 42 and it is for the aforesaid
reason that the applicant has also brought
on record the typed copy of information
reduced in writing as Annexure No. 3
with the bail application. Now, in case if
the
applicant
disputes
that
the
compliance is not in accordance with the
strict provisions of the law then that
aspect becomes a factual issue which is
to be considered during the trial.

28. This Court gainfully relies upon
the Constitution Bench decision of the
Apex Court in the case of Karnail Singh
Vs. State of Haryana reported in 2009
(8) SCC 39 wherein the Apex Court
while looking into the mandate of
Section 42 of the NDPS Act has observed
as under:-

"35. In conclusion, what is to
be noticed is that Abdul Rashid [(2000) 2
SCC 513: 2000 SCC (Cri) 496] did not
require literal compliance with the
requirements of Sections 42(1) and 42(2)
nor did Sajan Abraham [(2001) 6 SCC
692: 2001 SCC (Cri) 1217] hold that the
requirements of Sections 42(1) and 42(2)
250 INDIAN LAW REPORTS ALLAHABAD SERIES
need not be fulfilled at all. The effect of
the two decisions was as follows:

(a) The officer on receiving the
information [of the nature referred to in
sub-section (1) of Section 42] from any
person had to record it in writing in the
register concerned and forthwith send a
copy to his immediate official superior,
before proceeding to take action in terms
of clauses (a) to (d) of Section 42(1).

(b) But if the information was
received when the officer was not in the
police station, but while he was on the
move either on patrol duty or otherwise,
either by mobile phone, or other means,
and the information calls for immediate
action and any delay would have resulted
in the goods or evidence being removed
or destroyed, it would not be feasible or
practical to take down in writing the
information given to him, in such a
situation, he could take action as per
clauses (a) to (d) of Section 42(1) and
thereafter, as soon as it is practical,
record the information in writing and
forthwith inform the same to the official
superior.

(c)
In
other
words,
the
compliance with the requirements of
Sections 42(1) and 42(2) in regard to
writing down the information received
and sending a copy thereof to the
superior officer, should normally precede
the entry, search and seizure by the
officer. But in special circumstances
involving
emergent
situations,
the
recording of the information in writing
and sending a copy thereof to the official
superior may get postponed by a
reasonable period, that is, after the
search, entry and seizure. The question is
one of urgency and expediency.

(d) While total non-compliance
with requirements of sub-sections (1) and
(2) of Section 42 is impermissible,
delayed compliance with satisfactory
explanation about the delay will be
acceptable compliance with Section 42.
To illustrate, if any delay may result in
the accused escaping or the goods or
evidence being destroyed or removed, not
recording in writing the information
received, before initiating action, or nonsending of a copy of such information to
the official superior forthwith, may not
be treated as violation of Section 42. But
if the information was received when the
police officer was in the police station
with sufficient time to take action, and if
the police officer fails to record in
writing the information received, or fails
to send a copy thereof, to the official
superior, then it will be a suspicious
circumstance being a clear violation of
Section 42 of the Act. Similarly, where
the police officer does not record the
information at all, and does not inform
the official superior at all, then also it
will be a clear violation of Section 42 of
the Act. Whether there is adequate or
substantial compliance with Section 42
or not is a question of fact to be decided
in each case. The above position got
strengthened with the amendment to
Section 42 by Act 9 of 2001."

29. Thus, it would be seen that the
compliance of Section 42 being a
question of fact may not be looked into
by the Court for considering the bail
application though may be relevant and
to be considered by the Court during the
trial.

30. It would be relevant to notice
that the decision of the Apex Court in the
case of Sarija Bano (supra) which has
been heavily relied upon by the learned
counsel for the applicant, upon its perusal
8 All. Vinay Kumr Mishra Vs. Union of India
251
indicates that the Apex Court while
making
the
observations
that
the
compliance of Section 42 is mandatory
and is a relevant fact which should have
engaged the attention of the Court while
considering the bail application is to be
read in context with the facts of the case
before the Apex Court.

31. In the case of Sarija Bano (supra)
it was the specific case that the applicant
no. 1 was arrested at 11:15 PM on
10.07.2003 and on the basis of the
confessional statement, a search was made
in the building at about 01:15 AM on
11.07.2003 where the second applicant was
found staying and she was also taken into
the custody at 01:15 AM. It was the case
that in the aforesaid house the contraband
was found and accordingly a case was
registered. The redeeming feature of the
aforesaid case was that on 10.07.2003 at
01:14 PM a telegram had also been sent to
the Home Secretary, to the Governor of
State
of
Tamilnadu,
to
the
Police
Commissioner of Chennai as well as to the
Police Inspector of Ambunagar, Madurai
wherein it was alleged that the applicants
have already been detained and their lives
were in danger and their whereabouts were
not known. The fact that the telegram was
sent and received was not disputed.

32. It is in these circumstances where
the allegations were ex-facie made that the
applicants before the Apex Court were
illegally detained for which a telegram had
already been sent much prior in time at
01:15 PM whereas the search was made at
a subsequent time and the factum regarding
the telegram was also not disputed, hence,
the Court recorded the observations and
further it specifically noted that the
decision of Sarija Bano (supra) was
rendered in special facts.

33. Thus, the said case is
distinguishable from the facts of the
instant case, coupled with the mandate as
discernable from the constitution bench
decision of the Apex Court in the case of
Karnail Singh (Supra) and also for the
aforesaid reason that prima facie there
does not appear to be an ex-facie
violation of Section 42 of the NDPS Act
and even though if some infraction has
been made as per the applicant then he is
free to raise the said the ground during
trial, hence, this Court does not find any
merit in the submission of the learned
counsel for the applicant regarding noncompliance of Section 42 of the NDPS
Act at this stage, while considering the
bail application.

34. In so far as the violation of
Section 50 of the NDPS Act is concerned,
the same also does not find favour with this
Court for the reason that the applicant
himself has brought on record the copy of
the memo issued to the applicant which
was duly received by him and also signed
by him as Annexure No. 4 clearly
indicating the option exercised by the
applicant regarding the search.

35. From the perusal of the
Annexure No. 4, it would indicate that
the applicant was informed that he had an
option to be searched before a Magistrate
or a gazetted officer. The applicant has
mentioned under his signatures that he
would like to get himself searched before
a gazetted officer and once the applicant
exercised his option thereafter his search
was conducted in the presence of a
Gazetted Officer Sri Mohd. Nawab, the
Superintendent of NCB, Lucknow.

36. Again, it will be relevant to
mention that the option was given to the
252 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant and he exercised the same and
accordingly, his search was conducted before
a gazetted officer now in case if this fact is
disputed by the applicant it also becomes a
question of fact which can be adjudicated at
the time of trial and may not be looked into
by this Court at the time of consideration of
the bail application.

37. The other limb of the
submission of Sri Mishra, that the
gazetted officer Mohd. Nawab was also a
member of the raiding team and that he
not being an independent officer, hence,
the compliance is sham again for the
reasons as mentioned above this too is a
question of fact which can be seen and
considered by the Court during trial.

38. This Court is also strengthened
in its view from the decision of the
Constitution Bench of the Apex Court in
the case of Vijay Sinh Chandubha
Jadeja Vs. State of Gujrat reported in
2011 (1) SCC 609. The relevant extract
from para 31 of the said report is quoted
hereinunder:-

Needless
to
add
that
the
question whether or not the procedure
prescribed has been followed and the
requirement of Section 50 had been met,
is a matter of trial. It would neither be
possible nor feasible to lay down any
absolute formula in that behalf."

39. The last submission of Sri
Mishra regarding the applicant not
having the conscious possession of the
articles of contraband seized also does
not sound convincing.

40. It will be relevant to notice that
Section 2 (viii) and Section 2 (viiib),
Section 2 (xxiv), Section 2 (xxviii) of the
NDPS
Act
define
the
words
''conveyance', ''illicit traffic', ''to import
inter-State' and ''to transport' as under:-

"Section
2
(viii):-
"Conveyance" means a conveyance of
any description whatsoever and includes
any aircraft, vehicle or vessel;

Section 2 (viiib):- " illicit
traffic", in relation to narcotic drugs and
psychotropic substances, means -

(i) cultivating any coca plant or
gathering any portion of coca plant;

(ii) cultivating the opium poppy
or any cannabis plant;

(iii)
engaging
in
the
production,
manufacture,
possession,
sale,
purchase,
transportation,
warehousing,
concealment,
use
or
consumption, import inter-State, export
inter-State, import into India, export from
India or transhipment, of narcotic drugs
or psychotropic substances;

(iv) dealing in any activities in
narcotic
drugs
or
psychotropic
substances other than those referred to in
sub-clauses (i) to (iii); or

(v) handling or letting out any
premises for the carrying on of any of the
activities referred to in sub-clauses (i) to (iv);
other than those permitted under this Act, or
any rule or order made, or any condition of
any licence, term or authorisation issued,
thereunder, and includes

(1)
financing,
directly
or
indirectly, any of the aforementioned
activities;

(2) abetting or conspiring in
the furtherance of or in support of doing
any of the aforementioned activities; and

(3)
harbouring
persons
engaged in any of the aforementioned
activities;]

Section 2 (xxiv):- ''to import
inter-State" means to bring into a State
8 All. Vinay Kumr Mishra Vs. Union of India
253
or Union territory in India from another
State or Union territory in India;"

Section
2
(xviii):-
"to
transport" means to take from one place
to another within the same State or
Union Territory;

41. Significantly, Section 35 of the
NDPS Act provides for presumption of
culpable mental state and Section 8 (c) of
the NDPS Act prohibits the possession,
sale, purchase and transport of any
contraband.

42. This Court gainfully refers to
the decision of the Apex Court in the case
of Mohan Lal Vs. State of Rajasthan
reported in 2015 (6) SCC 222 wherein
the concept of possession has been
explained by the Apex Court and the
relevant part thereof reads as under:-

12. The term "possession" consists
of two elements. First, it refers to the
corpus or the physical control and the
second, it refers to the animus or intent
which has reference to exercise of the
said control. One of the definitions of
"possession" given in Black's Law
Dictionary is as follows:

"Possession.--Having
control
over a thing with the intent to have and
to exercise such control. Oswald v.
Weigel [219 Kan 616 : 549 P 2d 568 at p.
569 (1976)] . The detention and control,
or the manual or ideal custody, of
anything which may be the subject of
property, for one's use and enjoyment,
either as owner or as the proprietor of a
qualified right in it, and either held
personally or by another who exercises it
in one's place and name. Act or state of
possessing. That condition of facts under
which one can exercise his power over a
corporeal thing at his pleasure to the
exclusion of all other persons.

The law, in general, recognizes
two
kinds
of
possession:
actual
possession and constructive possession.
A person who knowingly has direct
physical control over a thing, at a given
time, is then in actual possession of it. A
person who, although not in actual
possession, knowingly has both the
power and the intention at a given time to
exercise dominion or control over a
thing, either directly or through another
person or persons, is then in constructive
possession of it. The law recognizes also
that possession may be sole or joint. If
one
person
alone
has
actual
or
constructive possession of a thing,
possession is sole. If two or more persons
share actual or constructive possession
of a thing, possession is joint."

In the said Dictionary, the term
"possess" in the context of narcotic drug
laws means:

"Term ''possess', under narcotic
drug laws, means actual control, care
and management of the drug. Collini v.
State [487 SW 2d 132 at p. 135 (Tex Cr
App 1972)] . Defendant ''possesses'
controlled substance when defendant
knows of substance's presence, substance
is immediately accessible, and defendant
exercises ''dominion or control' over
substance. State v. Hornaday [105 Wash
2d 120 : 713 P 2d 71 at p. 74 (Wash
1986)] ."

And again:

"Criminal law.--Possession as
necessary for conviction of offense of
possession of controlled substances with
intent to distribute may be constructive
as well as actual, United States v. Craig
[522 F 2d 29 at p. 31 (6th Cir 1975)] ; as
well as joint or exclusive, Garvey v. State
[176 Ga App 268 : 335 SE 2d 640 at p.
254 INDIAN LAW REPORTS ALLAHABAD SERIES
647 (1985)] . The defendants must have
had dominion and control over the
contraband
with
knowledge
of
its
presence and character. United States v.
Morando-Alvarez [520 F 2d 882 at p.
884 (9th Cir 1975)] .

Possession, as an element of
offense of stolen goods, is not limited to
actual manual control upon or about the
person, but extends to things under one's
power and dominion. McConnell v. State
[48 Ala App 523 : 266 So 2d 328 at p.
333 (1972)] .

Possession
as
used
in
indictment charging possession of stolen
mail may mean actual possession or
constructive possession. United States v.
Ellison [469 F 2d 413 at p. 415 (9th Cir
1972)] .

To constitute ''possession' of a
concealable
weapon
under
statute
proscribing possession of a concealable
weapon by a felon, it is sufficient that
defendant have constructive possession
and immediate access to the weapon.
State v. Kelley [12 Or App 496 : 507 P 2d
837 at p. 837 (1973)] ."

13. In Stroud's Dictionary, the
term "possession" has been defined as
follows:

"''Possession'
[Drugs
(Prevention of Misuse) Act, 1964 (c. 64),
Section 1(1)]. A person does not lose
''possession' of an article which is
mislaid or thought erroneously to have
been destroyed or disposed of, if, in fact,
it remains in his care and control (R. v.
Buswell [(1972) 1 WLR 64 : (1972) 1 All
ER 75 (CA)] ).

14. Dr Harris, in his essay
titled "The Concept of Possession in
English Law" [ Published in Oxford
Essays in Jurisprudence (Edited by A.G.
Guest, First Series, Clarendon Press,
Oxford, 1968).] while discussing the
various rules relating to possession has
stated that "possession" is a functional
and relative concept, which gives the
Judges some discretion in applying
abstract rule to a concrete set of facts.
The learned author has suggested certain
factors which have been held to be
relevant to conclude whether a person
has acquired possession for the purposes
of a particular rule of law. Some of the
factors enlisted by him are: (a) degree of
physical control exercised by person over
a thing, (b) knowledge of the person
claiming possessory rights over a thing,
about the attributes and qualities of the
thing, (c) the person's intention in regard
to
the
thing,
that
is,
"animus
possessionis" and "animus domini", (d)
possession of land on which the thing is
claimed is lying, also the relevant
intention of the occupier of a premises on
which the thing is lying thereon to
exclude others from enjoying the land
and anything which happens to be lying
there; and Judges' concept of the social
purpose of the particular rule relied upon
by the plaintiff.

15. The learned author has
further proceeded to state that quite
naturally the policies behind different
possessory rules will vary and it would
justify the courts giving varying weight to
different factors relevant to possession
according to the particular rule in
question. According to Harris, Judges
have at the back of their mind a perfect
pattern in which the possessor has
complete, exclusive and unchallenged
8 All. Vinay Kumr Mishra Vs. Union of India
255
physical control over the subject; full
knowledge of its existence; attributes and
location, and a manifest intention to act
as its owner and exclude all others from
it. As a further statement he elucidates
that courts realise that justice and
expediency compel constant modification
of the ideal pattern. The person claiming
possessory rights over a thing may have
a very limited degree of physical control
over the object or he may have no
intention in regard to an object of whose
existence he is unaware of, though he
exercises control over the same or he
may have clear intention to exclude other
people from the object, though he has no
physical control over the same. In all this
variegated situation, states Harris, the
person concerned may still be conferred
the possessory rights. The purpose of
referring to the aforesaid principles and
passages is that over the years, it has
been seen that courts have refrained from
adopting a doctrinaire approach towards
defining possession. A functional and
flexible
approach
in
defining
and
understanding the possession as a
concept
is
acceptable and
thereby
emphasis has been laid on different
possessory rights according to the
commands and justice of the social
policy. Thus, the word "possession" in the
context of any enactment would depend
upon the object and purpose of the
enactment and an appropriate meaning
has to be assigned to the word to
effectuate the said object.

16. Coming to the context of
Section 18 of the NDPS Act, it would
have a reference to the concept of
conscious possession. The legislature
while
enacting
the
said
law
was
absolutely aware of the said element and
that the word "possession" refers to a
mental state as is noticeable from the
language employed in Section 35 of the
NDPS Act. The said provision reads as
follows:

"35.Presumption of culpable
mental state.--(1) In any prosecution for
an offence under this Act, which requires
a culpable mental state of the accused,
the court shall presume the existence of
such mental state but it shall be a defence
for the accused to prove the fact that he
had no such mental state with respect to
the act charged as an offence in that
prosecution.

Explanation.--In this section
''culpable
mental
state'
includes
intention, motive, knowledge, of a fact
and belief in, or reason to believe, a fact.

(2) For the purpose of this
section, a fact is said to be proved only
when the court believes it to exist beyond
a reasonable doubt and not merely when
its
existence
is
established
by
a
preponderance of probability."

21.
From
the
aforesaid
exposition of law it is quite vivid that
the term "possession" for the purpose
of Section 18 of the NDPS Act could
mean
physical
possession
with
animus, custody or dominion over the
prohibited substance with animus or
even exercise of dominion and control
as a result of concealment. The
animus and the mental intent which is
the primary and significant element to
show
and
establish
possession.
Further, personal knowledge as to the
existence of the "chattel" i.e. the
illegal substance at a particular
location or site, at a relevant time
and the intention based upon the
256 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge,
would
constitute
the
unique
relationship
and
manifest
possession.
In
such
a
situation,
presence and existence of possession
could be justified, for the intention is
to exercise right over the substance or
the chattel and to act as the owner to
the exclusion of others."

43. From the facts available on
record, it is the case that the private truck
bearing No. UP 44 T 1781 was being
driven by the applicant and another
person namely Kaleem was riding in the
said truck. Both were apprehended and
from the hidden cavity of the truck 15
jute boxes containing 167 packets with a
total quantity of 249.250 Kgs. of Ganja,
which is a prohibited article as provided
under Section 2 (iii) (b) of the NDPS Act
and also being a commercial quantity,
was seized.

44. From the statement which was
given by the applicant and the other coaccused indicated that they had taken the
truck to Chhatisgarh where one Sri
Amaan had loaded the aforesaid bags in
the truck and had also informed the
applicant
that
it
contained
the
contraband.