2016 (4) TMI 396 - HC - Customs

Seeking modification of conviction order - Possession of 90kg Ganja - No fair investigation carried out and also no independent public witness was associated at any stage - Held that - mere denial of recovery of the Ganja from the truck is not enough to exonerate A-1. Once physical possession of the contraband has been proved, Section 35 of the NDPS Act comes into play and the burden shifts on the appellant to prove that he was in conscious possession of it. In such a situation, the accused is presumed to be in conscious possession as has been held in Ram Singh v. Central Bureau of Narcotics 2011 (4) TMI 1286 - SUPREME COURT . If the accused takes a stand that he was not in conscious possession, he has to establish the same. As has been held in Dharampal Singh v. State of Punjab 2010 (9) TMI 1005 - SUPREME COURT . As the materials brought on record would show, A-1 was found sitting in the truck, his presence in the truck has been clearly established. It is proven that A-1 was in control of articles in the truck. Possession in a given case need not be physical possession but can be constructive, having power and control over the articles. Therefore, there can be no iota of doubt that he was in conscious possession of the same. A-2 s conviction is primarily based only upon his disclosure statement. He disclosed that when they were taking tea at Peepra Kothi, an individual Lallan met A-1 and informed that he had loaded three plastic kattas containing Ganja in the truck and it would be collected by someone at Delhi. He further disclosed that Lallan had assured to pay ₹ 8,000/- for the deal. The Investigating Agency did not examine any tea shopkeeper from where the appellants had taken tea or the plastic kattas were allegedly loaded. Nothing has come on record to show if A-2 was acquainted with the said Lallan or the individual to whom the Ganja was to be delivered at Delhi. The prosecution has thus failed to prove if A-2 was in exclusive and conscious possession of the contraband. He deserves benefit of doubt. Therefore, conviction and sentence recorded by the Trial Court qua him cannot be sustained and A-2 shall be released forthwith if not required to be detained in any other case. - Appeal disposed of

Summary

Issues Involved:
1. Conviction under Section 20(b)(ii)(c) of NDPS Act.
2. Conviction under Section 25 of NDPS Act.
3. Validity of the recovery process and evidence.
4. Conscious possession of contraband by the appellants.
5. Role and involvement of A-2 in the crime.

Issue-wise Detailed Analysis:

1. Conviction under Section 20(b)(ii)(c) of NDPS Act:
The appellants, Mukesh Singh (A-1) and Husnail Khan (A-2), were found guilty of possessing 90 kg of Ganja under Section 20(b)(ii)(c) of the NDPS Act. The prosecution's case was based on a secret information received by SI Bhagwan Singh, leading to a raid at Azadpur Mandi, Delhi, where the appellants were apprehended with the contraband concealed in a truck. The trial court sentenced both appellants to ten years of rigorous imprisonment with a fine of ?1 lakh each.

2. Conviction under Section 25 of NDPS Act:
A-1 was additionally convicted under Section 25 of the NDPS Act for allowing his premises (the truck) to be used for the commission of an offence under the NDPS Act. He was separately sentenced to ten years of rigorous imprisonment with a fine of ?1 lakh.

3. Validity of the Recovery Process and Evidence:
The defense argued that the trial court erred in relying on uncorroborated police testimonies and that no independent public witness was involved. However, the court found the testimonies of police officials, including SI Bhagwan Singh and HC Kanwal Singh, credible and consistent. The court noted that no material discrepancies were found in their cross-examinations, and no oblique motive was assigned to the police officials for falsely implicating the appellants.

4. Conscious Possession of Contraband by the Appellants:
The court emphasized that A-1, being the driver of the truck, had physical possession of the vehicle and was responsible for the contraband found. A-1's denial of the recovery was contradicted by A-2's admission of the presence of Ganja in the truck. The court applied Section 35 of the NDPS Act, which presumes conscious possession, and concluded that A-1 was in conscious possession of the contraband.

5. Role and Involvement of A-2 in the Crime:
A-2 admitted to being a helper in the truck but claimed ignorance about the contraband. The court found no evidence of A-2's involvement in loading or transporting the Ganja. The prosecution failed to establish that A-2 had conscious possession of the contraband. The court noted that A-2's conviction was primarily based on his disclosure statement, which lacked corroborative evidence. Consequently, A-2 was given the benefit of the doubt, and his conviction and sentence were set aside.

Separate Judgments Delivered:
The court allowed A-2's appeal, setting aside his conviction and ordering his release. For A-1, the court upheld the minimum sentence of ten years mandated under Sections 20 and 25 of the NDPS Act but modified the default sentence for non-payment of fine to one month each instead of six months each.

Conclusion:
The judgment meticulously addressed the issues of recovery, evidence, and conscious possession. While A-1's conviction was upheld based on the evidence and legal presumptions, A-2 was acquitted due to lack of evidence proving his conscious possession of the contraband. The court ensured that the legal standards and requirements under the NDPS Act were thoroughly examined and applied.