The Bombay High Court earlier this month refused to grant bail to two men facing prosecution for offences punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 after being apprehended by the police along with 9 others (2 more absconding) for carrying Marijuana from Andhra Pradesh into Maharashtra weighing 203 Kg and 450 grams.
Justice CV Bhadang was hearing the criminal bail applications filed by Sunil Jagtap and Sharad Karke.
According to the prosecution, on November 5 a secret information was received by police Naik Mahale that some persons are bringing ganja from Andhra Pradesh in a Swift Dzire Car. The information was, accordingly, communicated to the superior and API Kulkarni recorded the same and a team of police officers led by PI Ananda Wagh of the Crime Branch laid a trap along with panchas at old Chehdi Jakat Naka.
Thereafter, at 5 pm, three cars including 2 Swift Dzire cars and one Ertiga bearing were intercepted. Each of the cars was having three occupants including the driver. The total quantity of the contraband recovered from three separate cars is 203 kg 450 grams. After the search and seizure and on the basis of a complaint lodged by Police Constable Ravindra Bagul, an offence was registered and after completion of investigation, a charge sheet was filed.
The Special Judge refused to release the applicants on bail inter alia on the ground that the quantity of the contraband recovered is a commercial quantity.
Advocate Pravin Sonawane appeared on behalf of applicant Sunil Jagtap and submitted that the applicant Sunil Jagtap was a mere gratuitous passenger. He submitted that his client was coming from Nagar to Nashik and asked for a lift and thus, the applicant was not having knowledge of the contraband allegedly being carried in the said car. He strenuously urged that there is no conscious possession of the contraband by the applicant, which would be evident from the fact that the applicant was sitting on the passenger seat.
Sharad Karke's counsel Advocate Sachin Gite adopted the arguments on most of the grounds. He submitted that the applicant was also a mere passenger in the car without knowledge of the alleged contraband being carried in the said car.
Additional Public Prosecutor Arfan Sait opposed the applications and submitted that the matter involves commercial quantity, where the presumption under Section 54 of the Act is attracted. He added that this is not a case where the contraband is recovered on account of personal search of the accused and therefore, Section 50 of the Act is not applicable. APP Sait also placed reliance on five different judgments of the Supreme Court in support of his submission.
"Prima facie it appears that this is a case involving the recovery of commercial quantity of ganja from the individual car, inasmuch as the commercial quantity in relation to ganja is notified as 20 kgs and above. The Applicants were found travelling in Swift Dzire car and Ertiga Car from where the contraband is said to be recovered. Prima facie having regard to the nature of the recovery from the car, this cannot be said to be a case of recovery of the contraband on personal search. Thus, the provisions of Section 50 of the said Act may not be attracted."
As for the defence of the applicants that they were mere passengers in the car, Court refused to accept the same and said-
"Although, the Applicant Sunil Jagtap claims that he had requested for a lift, as he wanted to come from Nagar to Nashik, the statement of Dyaneshwar Narwade would show to the contrary. The Applicant Sharad Karke has not even claimed that he had obtained a lift. The Supreme Court in the case of Kulwindar Singh and Anr. Vs. State of Punjab, was concerned with a similar situation in which the defence about the accused being a mere passenger in the vehicle from where the contraband was recovered, was not accepted."
Finally, rejecting the bail applications, Justice Bhadang reiterated that the case involves recovery of commercial quantity of contraband, where the presumption under Section 54 of the Act will be attracted. Thus, no case for grant of bail is made out.
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