2009 (7) TMI 1246 - SC - Customs

Whether the High Court correct to upheld the order of conviction passed against the appellant herein for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as the NDPS Act ) and sentenced her to undergo rigorous imprisonment for a period of ten years and to pay a fine of 1 lac and in default of payment of the same to undergo rigorous imprisonment for another period of two years for having found in possession of 2 bags containing 61 Kgs. of poppy husk without any permit or licence?

Issues Involved:
1. Legality of the conviction under Section 15 of the NDPS Act.
2. Alleged bias and procedural lapses by the police officers.
3. Non-compliance with Sections 52 and 57 of the NDPS Act.
4. Conscious possession of the contraband goods.
5. Delay in sending samples for chemical examination.
6. Examination of independent witnesses.

Issue-Wise Detailed Analysis:

1. Legality of the Conviction under Section 15 of the NDPS Act:
The appellant was convicted under Section 15 of the NDPS Act for possessing 61 kgs of poppy husk without a permit or license. The Supreme Court upheld the conviction, affirming the findings of the trial court and the High Court that the prosecution had proven its case beyond reasonable doubt. The evidence indicated that the appellant was found sitting on two bags containing poppy husk and admitted the contents when questioned by the police.

2. Alleged Bias and Procedural Lapses by the Police Officers:
The appellant contended that there was bias against her by the police officers due to past proceedings she had initiated against them. However, the Supreme Court found no merit in this argument. The Court noted that the appellant's previous anticipatory bail application and a raid on her residence, which yielded no incriminating evidence, did not substantiate claims of bias. The Court emphasized that the appellant was caught in broad daylight with the contraband, negating the bias argument.

3. Non-compliance with Sections 52 and 57 of the NDPS Act:
The appellant argued that there was non-compliance with Sections 52 and 57 of the NDPS Act, which mandate informing the accused of their right to be searched before a Gazetted Officer or Magistrate. The Court dismissed this argument, referencing several precedents, including *State of Punjab v. Baldev Singh* and *State of Haryana v. Mai Ram*, which clarified that the provisions of Sections 52-57 were not violated in this case. The appellant herself requested the presence of a Gazetted Officer, and the search was conducted accordingly.

4. Conscious Possession of the Contraband Goods:
The Court analyzed the concept of "conscious possession" as discussed in *Madan Lal v. State of H.P.* and other cases. The appellant's behavior, such as turning her face towards her village upon seeing the police and admitting the contents of the bags, indicated conscious possession. The Court reiterated that once possession is established, the burden shifts to the accused to prove lack of conscious possession, which the appellant failed to do.

5. Delay in Sending Samples for Chemical Examination:
The appellant argued that the delay in sending the samples for chemical examination (from 19.02.1998 to 23.02.1998) was prejudicial. The Court found this contention untenable, referencing *Hardip Singh v. State of Punjab*, where a 40-day delay was deemed non-fatal due to intact seals and reliable evidence. In this case, the short delay did not affect the validity of the prosecution's case.

6. Examination of Independent Witnesses:
The appellant claimed that the prosecution failed to examine independent witnesses present at the time of recovery. The Court noted that the only independent witness was examined by the defense, indicating he was won over. The absence of other independent witnesses at the scene did not vitiate the search and recovery process, as the evidence from police witnesses was found credible and reliable.

Conclusion:
The Supreme Court dismissed the appeal, finding no merit in the arguments presented. The conviction and sentence under Section 15 of the NDPS Act were upheld, with the Court affirming that the appellant was in conscious possession of the contraband goods and that procedural requirements were adequately met.

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