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The Orissa High Court in an NDPS Case observed that a person merely sitting in car containing drugs shouldn't be deemed in possession of the same.
A single judge bench of Justice S.K Panigrahi of the high court of Orissa in the case of Kishore Bira vs State of Orissa granted bail to the accused convicted under Sections 20(b)(ii)(C), 25, and 29 of the NDPS Act and section 437 of the IPC.
The factual matrix of the case is that the police found one commander jeep without a number plate in the front of their bolero at high speed. The police party pursued the car on suspicion and stopped the jeep. Later on, 14 jerry bags filled with ganja were discovered in the jeep.
The driver was unable to present any documentation supporting the carriage of such illegal substances. A total of 400kg of marijuana was seized after being weighed. The ganja was confiscated after adhering to all the procedures, and the petitioner was taken into custody.
The Learned Counsel for the petitioner contended that the petitioner is a daily wage laborer and earned his livelihood through labor works. The petitioner was employed as a laborer to load and unload the bags on the incident day. He knew nothing about the contents of the luggage. Therefore, it cannot be asserted that the illegal ganja found in the car belonged to the petitioner and was taken from his or her knowledge. The driver and the passengers inside the car are not entitled to possession if the owner of the cargo in the vehicle abandons it.
He further replied to the contentions of the opposite counsel that section 20 is not invoked unless the possession was accompanied by the necessary mental element, i.e., conscious possession as opposed to just custody without awareness of the nature of such possession.
The Counsel relied on the supreme court judgments titled, Avtar Singh Vs. State of Punjab, 2006 Latest Caselaw 653 SC and ‘Sorabkhan Gandhkhan Pathan and another V. State of Gujarat'.
At last, the Counsel emphasized the point that a speedy trial is a fundamental right of a citizen. Therefore, it is unjustified and a violation of the person's fundamental right to hold someone in custody for so long without a trial.
The counsel supported this argument by relying on the apex court judgment titled, ‘Hussainara Khatoon & Ors vs Home Secretary, State of Bihar’.
The court directed to release the petitioner on bail with some strict terms and conditions as deemed just and proper by the court. The following conditions are
- On each date the case is posted, the Petitioner must attend before the learned trial court.
- He will refrain from engaging in the same behavior going forward; and
- He is not permitted to alter the prosecution witnesses' testimony in any way.
Breach of these conditions will lead to the cancellation of bail.
CASE NAME- Kishore Bira V State of Orissa
CORUM- Justice S.K Panigrahi
DATED- 11.07.2022
CITATION- BLAPL No.9629 of 2021
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