This particular decision is held by the High Court Of Karnataka through the single bench of Justice Mohammad Nawaz in the case of ZAKIR HUSSAIN v STATE BY INTELLIGENCE OFFICER.
The alleged ganja was concealed underneath the coconut bags and therefore it cannot be said that the petitioner was in conscious possession of ganja. He contends that the petitioner was only the owner-cum-driver of the truck which was transporting the load of coconuts and he was not aware that there was ganja in the truck. He contends that there is non-compliance of Section 42 of the NDPS Act, as the secret information said to be received by the complainant was not reduced into writing and reported to his superior officer. He further contends that no quantitative analysis of the seized material has been carried out and in the absence of quantitative analysis, prosecution must fail. He contends that the search and seizure has been carried out during night hours on a private vehicle, which is in violation of the mandatory provisions of Sections 42 and 43 of the NDPS Act. He has also contended that the samples were drawn on 12.04.2021 and the FSL report was received on 11.06.2021, which is not within 15 days and it is in violation of Standing Instructions 1/88, hence on this ground also the petitioner is entitled for bail.
Order and judgements
On going through the material on record, the Court found that there is no violation of the mandatory provisions with regard to search and seizure of ganja, the quantitative analysis, taking samples and sending the contraband for chemical examination.
Rejecting the contention of the petitioner that the chemical analysis report has not been received within 15 days, the bench referred to Supreme Court judgement in the case of Union of India vs. Bal Mukund and others reported in (2009)12 SCC 161 wherein it was held that infraction of Standing Instruction No.1/88 is not a ground for releasing the accused on bail.
Further the bench rejected the contention of the petitioner that the alleged bag containing ganja was hidden underneath the coconut bags and the petitioner being the driver of the truck it cannot be said that he was in conscious possession of ganja.
Referring to section 35 of the NDPS Act the bench noted that the petitioner is admittedly the owner-cum-driver of the truck. It said, “In the case on hand, at this stage, this Court finds that the petitioner had real knowledge of the nature of the substance concealed in the jute gunny bags.”
It held, “Further, the accused has been found transporting ganja in his vehicle and at this stage, the material collected is sufficient to show that he had real knowledge of the nature of the substance concealed in the jute gunny bags beneath the load of coconuts. Hence, taking into consideration all the above, this Court is of the considered view that, a prima facie case is made out against the petitioner and it cannot be said at this stage that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged against him.”
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Judgement reviewed by- Mohammed Shoaib