2010 (8) TMI 931 - SC - Customs

Whether 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? Whether not only possession but conscious possession has been established?

Summary

Issues Involved:

1. Credibility of the prosecution case due to discrepancy in the weight of the sample.
2. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. Conscious possession of the contraband by the appellant Dinesh Kumar.

Issue-wise Detailed Analysis:

1. Credibility of the prosecution case due to discrepancy in the weight of the sample:

Mr. Rai, representing one of the appellants, argued that the discrepancy in the weight of the sample sent to the Forensic Science Laboratory (65.5606 gms) compared to the initial weight (50 gms) casts serious doubt on the prosecution's credibility. He cited the Supreme Court cases of Noor Aga vs. State of Punjab and Rajesh Jagdamba Avasthi vs. State of Goa to support his argument that such discrepancies erode the credibility of recovery proceedings. However, the court found these cases distinguishable. The discrepancy in the current case was attributed to the use of a non-standard weighing scale from a grocery shop, which is not as precise as the laboratory's scale. The court concluded that a 15 gm difference is not significant under these circumstances and does not undermine the prosecution's case.

2. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985:

Mr. Rai contended that the appellants were not properly apprised of their right to be searched in the presence of a Gazetted Officer or Magistrate, as required by Section 50 of the Act. He emphasized that conveying an option is different from apprising a right. The court, however, found that the appellants were given an option to be searched by a Gazetted Officer or Magistrate, which effectively apprised them of their right. Furthermore, the court noted that the Charas was recovered from the vehicle, not from the appellants' persons, making Section 50 compliance unnecessary. The appellants were searched only after being brought to the police station, which does not trigger Section 50 requirements.

3. Conscious possession of the contraband by the appellant Dinesh Kumar:

Mr. P.S. Mishra argued that Dinesh Kumar was not in conscious possession of the Charas as he had merely taken a lift in the vehicle. The court rejected this argument, stating that the statement under Section 313 of the Code of Criminal Procedure is not evidence and cannot be cross-examined. The court emphasized that both appellants were found traveling in a private vehicle, not public transport, and were thus presumed to have conscious possession under Sections 35 and 54 of the Act. The court cited Madan Lal vs. State of H.P. to support the notion that once possession is established, the burden shifts to the accused to prove it was not conscious possession.

Conclusion:

The court dismissed the appeals, upholding the appellants' convictions under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the sentences imposed by the trial and appellate courts.