Once contraband is recovered from a vehicle and the accused is present therein, presumption of conscious possession arises – Allahabad High Court

"Mere status as cleaner is insufficient to rebut statutory presumption under Sections 35 & 54 NDPS Act" – No bail unless both conditions under Section 37(1)(b)(ii) are satisfied - Allahabad High Court (Justice Rohit Ranjan Agarwal) rejected the second bail application filed under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The applicant, Randhir, a cleaner on a DCM truck, was arrested along with the driver after 151.6 kilograms of ganja, a commercial quantity, was recovered during a vehicle interception in Sonbhadra District.

The Court dismissed the bail plea by reiterating the stringent twin conditions under Section 37 of the NDPS Act, emphasizing that the applicant failed to show reasonable grounds to believe he is not guilty, and that he is unlikely to reoffend. The bail application was therefore barred by law.

Cleaner Arrested After Ganja Recovery; First Bail Already Rejected

The case stems from an FIR registered under Sections 8/20 of the NDPS Act at Police Station Robertsganj, Sonbhadra. On 12.11.2023, local police intercepted DCM Truck No. HR45 B3831, discovering eight packets of ganja totaling 151.6 kg. The driver and the cleaner (applicant Randhir) were apprehended on the spot, allegedly confessing that the contraband was being transported from Odisha to Haryana.

The first bail application was rejected on August 12, 2024, and the trial court has since framed charges on January 12, 2024. Randhir then filed a second bail plea, claiming violations of Sections 50 and 52A of the NDPS Act, and argued that the FSL report was not included in the original charge sheet.

The Court addressed several interlinked legal issues: the presumption of conscious possession, the applicability of Section 50, procedural irregularities under Section 52A, and the role of the FSL report in determining bail eligibility.

Presumption of Conscious Possession and Burden Under Sections 35 & 54

Justice Agarwal strongly emphasized that the accused, though described merely as a cleaner, was present in the vehicle transporting commercial quantity of ganja, which automatically triggered the presumption of “conscious possession” under Sections 35 and 54 of the NDPS Act.

"Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge," the Court noted, relying on Madan Lal v. State of H.P., (2003) 7 SCC 465 and Megh Singh v. State of Punjab, 2003 Cri LJ 4329.

Mere presence in a vehicle containing contraband, the Court ruled, amounts to constructive and conscious possession unless rebutted. The applicant’s claim that he was only a “daily wager cleaner” was found insufficient to displace the statutory presumption.

Section 37 NDPS Act – Twin Conditions Not Satisfied

The High Court relied on a catena of decisions including Union of India v. Ram Samujh, (1999) 9 SCC 429, State of Kerala v. Rajesh, AIR 2020 SC 721, and Union of India v. Prateek Shukla, AIR 2021 SC 1509 to reassert the mandatory nature of Section 37(1)(b)(ii):

“Recording of findings as mandated in Section 37 is sine qua non for granting bail,” the Court noted, citing Narcotics Control Bureau v. Kashif, Criminal Appeal No. 5544/2024.

The Court found that neither of the twin statutory conditions—that the accused is not guilty and not likely to re-offend—were satisfied.

Non-Filing of FSL Report with Charge Sheet Not Fatal: Covered Under Section 173(8) CrPC

One of the core grounds argued by the applicant was that the FSL (Forensic Science Laboratory) report, confirming the substance as ganja, was not part of the original charge sheet filed on 31.12.2023. It was later entered in the case diary on 16.06.2024, after the FSL issued it on 02.12.2023.

The Court, however, held that this does not vitiate the proceedings, referring to Section 173(8) CrPC, and judgments such as CBI v. Kapil Wadhawan, 2024 SCC OnLine SC 66 and K. Veeraswami v. Union of India, (1991) 3 SCC 655. The FSL report was held to be corroborative in nature and admissible under Section 293 CrPC, which governs government expert reports.

“The FSL report is only corroborative in nature to the material collected and filed along with charge sheet by the Investigating Officer,” the Court emphasized.

Section 52A – Delay or Procedural Lapse Does Not Invalidate Proceedings

The applicant had also challenged the seizure on the basis that representative samples were not drawn in compliance with Section 52A, and alleged procedural lapses.

The Court dismissed this argument as well, noting that Section 52A was inserted to facilitate early disposal of seized narcotics and does not constitute a mandatory procedure affecting the prosecution’s case if there is sufficient evidence.

The Court relied on the recent Supreme Court ruling in NCB v. Kashif (2024), observing:

“Any deviation or delay under Section 52A is at most a procedural irregularity, not an illegality... and does not entitle the accused to bail or acquittal.”

It further emphasized that seizure memos, arrest memos, and panchnamas, prepared during investigation, are primary evidence under the Evidence Act, and cannot be discarded due to procedural irregularities.

Section 50 Not Applicable to Vehicle Searches

Referring to State of Punjab v. Baldev Singh, (1999) 6 SCC 172, Megh Singh v. State of Punjab, and Dehal Singh v. State of Himachal Pradesh, 2011 (72) ACC 661, the Court clarified that Section 50 of the NDPS Act applies only to personal search, not to searches of vehicles, bags, or premises.

“The language of Section 50 is implicitly clear that the search has to be in relation to a person,” the Court held, rejecting the applicant’s argument of non-compliance.

Cleaner’s Role Insufficient to Displace Presumption of Conscious Possession; No Special Circumstances Made Out

The Court ultimately held that Randhir’s presence in the vehicle, coupled with the commercial quantity of ganja recovered, triggered a statutory presumption of culpability, and that no reasonable grounds were shown under Section 37 to believe that he was not guilty or would not reoffend.

Justice Rohit Ranjan Agarwal thus held: “No case for enlarging the applicant on bail is made out. The reliance placed upon various decisions are distinguishable from the facts of the present case.”

Date of Decision: 04 September 2025