Shyam Lal Gupta vs The State Of Assam on 21 January, 2025

Gauhati High Court

Shyam Lal Gupta vs The State Of Assam on 21 January, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

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GAHC010179102024




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                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./2639/2024

            SHYAM LAL GUPTA
            S/O LATE MANIK CHAND GUPTA, R/O LALPOTTY, P.S.-HOJAI, DIST- HOJAI,
            ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR H R A CHOUDHURY, MS R DEKA,MR. I U CHOWDHURY

Advocate for the Respondent : PP, ASSAM,




                                  BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                           ORDER

21.01.2025

Heard Mr. H.R.A. Choudhury, learned Senior counsel assisted by Mr. I.U.
Chowdhury, learned counsel for the petitioner. Also heard Mr. R.R. Kaushik,
learned Additional Public Prosecutor for the State.

2. By this bail application filed under section 483 of the Bharatiya Nagarik
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Suraskha Sanhita, 2023, the accused petitioner namely, Shyam Lal Gupta, has
prayed for bail in connection with Special NDPS Case No. 38(H)/2024 (arising
out of Hojai P.S. Case No. 530/2023) under Section 22(C)/29 of NDPS Act,
pending in the court of learned Special Judge, Hojai.

3. The learned Senior counsel for the petitioner submits that the
petitioner has been detained in custody since 17.02.2024. It is also submitted that
after completion of investigation, police submitted charge sheet against the
petitioner including three other co-accused persons and one Ainul Hoque shown as
absconder.

4. It is further submitted that the petitioner has been falsely implicated in
the present case and he is a businessman involved in the courier service industry,
working with various agencies. During the investigation, the police found no
incriminating evidence against the petitioner, leading to his release on PR bond, as
indicated in the FIR. Furthermore, the petitioner had no knowledge of the contents
of the goods inside the cartons, as these were sealed and the petitioner was not
obligated to open it.

5. The learned Senior counsel for the petitioner further submitted that no
prohibited psychotropic substance was recovered from the conscious possession of
the petitioner. It was also noted that, out of the nine witnesses, only two witnesses
have been examined so far, indicating that the examination of the remaining
witnesses may take considerable time, and thus the trial is unlikely to conclude in
the near future. In view of the acquisition spelt out against the petitioner as well as
considering the period of detention, bail may be granted to the petitioner.

6. On the other hand, Mr. Kaushik, learned Additional Public Prosecutor for
the State submits that commercial quantity of contraband was recovered in
connection with this case. As the commercial quantity of contraband was
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recovered, Section 37 of NDPS Act is attracted here in this case. During
investigation, it appears that the petitioner is very much involved in the alleged
offence as such, considering the fact as well as the present status of the case, bail
may not be granted to the petitioner at this stage of trial.

7. I have considered the submissions made by the learned counsel for the
parties. I have also perused the scanned copy of trial court record.

8. Under Section 37(1)(b)(ii), the limitations on the grant of bail for
offences punishable under Sections 19, 24 or 27A and also for offences involving a
commercial quantity are :

(i) The Prosecutor must be given an opportunity to oppose the application for
bail; and

(ii) There must exist ‘reasonable grounds to believe’ that (a) the person is
not guilty of such an offence; and (b) he is not likely to commit any offence
while on bail.

Based upon the precedents, the test which this Court is required to apply
while granting bail is whether there are reasonable grounds to believe that accused
is not guilty of such an offence and whether he is likely to commit any offence
while on bail.

9. The knowledge of the possession of contraband has to be gleaned from
the facts and circumstances of a case.

This Court is cautious of the fact that physical possession means physical
possession with animus, exercise of dominion and control as a result of
concealment or personal knowledge as to existence of the contraband and the
intention based on this knowledge.

In order to appreciate the contentions raised by the learned counsel for the
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petitioner, it is important to refer to the observations of the Hon’ble Supreme Court
in Madan Lal and Anr. v. State of Himachal Pradesh, (2003) 7 SCC 465, with
reference to the concept of possession as occurring in Section 20 to 22 of NDPS
Act.

“20. Section 20(b) makes possession of contraband articles an offence.
Section 20 appears in Chapter IV of the Act which relates to offences for
possession of such articles. It is submitted that in order to make the
possession illicit, there must be a conscious possession.

21. It is highlighted that unless the possession was coupled with the requisite
mental element i.e. conscious possession and not mere custody without
awareness of the nature of such possession, Section 20 is not attracted.

22. 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
Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4
SCC 274: 1979 SCC (Cri) 1038 : 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. In the case in hand, the petitioner was arrested on 17.02.2024. Charge
was framed on 12.11.2024 and thereafter, summons were issued to the witnesses.
Admittedly, commercial quantity of contraband was recovered and seized in
connection with this case from the office of the petitioner wherein he was the
proprietor. Under such backdrop, it cannot be said that Section 37 is not invoked
against the petitioner. Apart from that, out of nine witnesses, two witnesses have
already been examined. It transpires that trial is progressing.

11. On consideration of the matter in its entirety, this Court is not inclined
to grant bail to the accused/petitioner, at this stage of trial. Therefore, prayer for
bail is rejected. However, trial court is directed to expedite the trial of the case.

12. In view of the above, the bail application stands disposed of.

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13. The observation made above, shall confine for the purpose of disposal
of this bail application only and shall not in any way affect the proceeding of the
trial.

JUDGE

Comparing Assistant