Transparent bag doesn’t prove innocence or police malice: HC declines bail, departs from earlier view

In a significant departure from previous judicial reasoning, the Punjab and Haryana High Court has held that the recovery of contraband from a transparent bag cannot, by itself, be construed as evidence of false implication or innocence.

Declining regular bail to an accused in an NDPS case, Justice Manisha Batra categorically stated that both claims — that no accused would carry contraband in a transparent bag or that police would not plant contraband in one — fell within the realm of speculative reasoning and created a logical standoff.

“This court, while having due regard to the views expressed by the coordinate Benches, respectfully finds itself unable to concur with the reasoning adopted therein,” the court asserted.

Referring to the argument that recovery from a transparent bag defied common sense as no one would carry contraband so openly, Justice Batra observed: “If an accused sets up a claim of his false implication on the ground that no sensible person would carry contraband in a transparent bag on the logic that such visibility makes detection certain and thus defies common sense, then at the same time, this very logic must also apply to the police. If the allegation is that the police falsely implicated the petitioner by planting contraband, it is equally implausible that they would do so using a transparent bag, which would immediately raise doubts about the authenticity of the recovery.”

Justice Batra added it would have been far more logical for the police to use a concealed or opaque bag to avoid raising suspicion about false implication, if the intention were to fabricate evidence and build a strong case.

The mere fact that the contraband was found in a transparent bag could not, by itself, be treated as proof of innocence or of malice on the part of the police.

Justice Batra further noted that the Court “cannot and neither is it supposed to assess the intelligence, prudence, or strategic thinking of the petitioner/accused to conclude whether he would or would not have carried contraband in a transparent bag”.

Referring to the paradox created in both scenarios, Justice Batra added: “The petitioner knowingly carrying it or the police falsely planting it, are equally vulnerable to speculative reasoning and they seem unlikely as an accused carrying contraband openly in a transparent bag defies caution, whereas the police planting evidence in a transparent bag defies strategic thinking. It creates a logical standoff where neither side’s behavior aligns perfectly with rational expectations. Hence, on this very ground, not even a prima facie inference can be drawn regarding false implication of the petitioner by planting the recovered contraband upon him.”

The observations came during the hearing of a second bail plea filed by an accused in a case registered under the NDPS Act at Nehianwala police station in Bathinda district. Taking note of recovered “commercial quantity” of contraband and the absence of material to suggest that the petitioner did not commit the offence or was unlikely to repeat it, Justice Batra declined the plea.