Commercial-Quantity Charge Needs Reasons on Conscious Possession; No Section 25 Charge for Owner Driving Himself: Rajasthan High Court

The prosecution's case was that 12 kg of ganja was recovered from the co-accused, who held it in a bag between his legs, and 14 kg from the boot of a car the petitioner was allegedly driving when police intercepted it (paras 3, 6). On 18 August 2017 the trial court directed charges under Sections 8/20(b)(ii)(C) and 8/25 of the NDPS Act (para 2). The petitioner contended that the order gave no reasons and that the two quantities could not be clubbed, citing Akhlak @ Vilasan and Amarsingh Ramjibhai Barot (para 3). The Public Prosecutor said that, as per a rojnamcha report of 11 October 2016, both quantities were recovered from the car, so joint possession could be inferred (para 4).

The Court found that the order of 18 August 2017 contained no analysis of the factual matrix (para 6). The rojnamcha report itself recorded the 12 kg as recovered from the co-accused, who was holding it between his legs, and the 14 kg as found in the car's boot; on that record no ground existed for framing the charge (para 6). The trial court ought to have discussed and given reasons why both quantities were treated as recovered from the petitioner's conscious possession; without them, a commercial-quantity charge against him could not be sustained (para 6). On Section 25, the petitioner, said to be the car's registered owner, was found driving it when it was intercepted. It was not the prosecution's case that he knowingly permitted any other person to use the car for the offence, so there was no justification for a Section 8/25 charge (para 7). The Court did not itself decide what the petitioner possessed: it sent the question of charge back to be decided afresh on the prosecution's material (para 8).