2018 (4) TMI 231 - HC - Indian Laws

Smuggling - Heroin - Section 50 of The NDPS Act - offence under Sections 8(c) r/w 21(c), 28 and 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 135(1)(a)(ii) of The Customs Act. Held that - The Apex Court has time and again held that once a physical possession of the contraband by the accused has been established, the onus is upon the accused to prove that it was not a conscious possession. Thus, the onus would be upon the accused to rebut the statutory presumption of this fact that the accused was not in the knowledge that this substance was a contraband - The appellant has failed to discharge his burden in the manner known to law. In her statement under Section 313 of Cr.P.C. also no plea has been taken that she was not in conscious possession of the contraband. The respondent has proved its case beyond all reasonable doubts and that the learned trial judge was right in holding that the appellant was guilty of charges and that this court does not find any illegally or irregularity in the same warranting interference at the hands of this court. The quantum of both physical and monetary sentence imposed on the appellant by the learned trial judge appear to be appropriate and thus, the same also do not require any interference at the hands of this court - appeal dismissed - decided against appellant.

Issues Involved:
1. Legality of the confession as substantive evidence.
2. Proof of possession and conscious possession of contraband.
3. Admissibility of evidence and compliance with procedural requirements.
4. Presumption under Sections 54 and 35 of the NDPS Act.
5. Validity of the conviction and sentence.

Issue-wise Detailed Analysis:

1. Legality of the Confession as Substantive Evidence:
The appellant argued that the trial court erred in relying on her alleged confession as substantive evidence without corroboration. The court held that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act is admissible and not hit by Section 25 of the Evidence Act. The statement recorded under Section 67 of the NDPS Act is admissible, and the trial court did not commit any illegality in relying on it.

2. Proof of Possession and Conscious Possession of Contraband:
The prosecution established that the appellant was intercepted at Chennai Airport while attempting to board a flight to Kuala Lumpur. Upon checking her luggage, 4.900 kgs of heroin was found concealed in her suitcase. The appellant's defense was a total denial of the prosecution's case. The court found that the prosecution proved the appellant's possession of the contraband. The appellant failed to rebut the presumption of conscious possession under Section 35 of the NDPS Act, as she did not provide any evidence to counter the prosecution's claims.

3. Admissibility of Evidence and Compliance with Procedural Requirements:
The court examined the testimonies of various witnesses, including P.W.1 (Intelligence Officer), P.W.2 (Intelligence Officer who recorded the appellant's statement), and P.W.3 (Assistant Chemical Examiner). The evidence showed that the contraband was heroin. The court found no irregularities in the procedures followed by the prosecution, including the seizure of the contraband and the recording of the appellant's statements.

4. Presumption under Sections 54 and 35 of the NDPS Act:
Section 54 of the NDPS Act creates a presumption of guilt if the accused fails to account for possession of contraband. Section 35 presumes the accused has the culpable mental state necessary for the offense. The prosecution must establish a prima facie case, which the appellant can rebut. In this case, the prosecution discharged its initial burden, and the appellant failed to rebut the statutory presumption. The physical possession of the contraband and the appellant's failure to provide a satisfactory explanation led the court to uphold the presumption of conscious possession.

5. Validity of the Conviction and Sentence:
The court found that the prosecution proved its case beyond all reasonable doubts. The trial court's conviction of the appellant under Sections 8(c) r/w 21(c), 28, and 29 of the NDPS Act and Section 135(1)(a)(ii) of the Customs Act was upheld. The sentence of rigorous imprisonment for ten years with a fine of ?1,00,000/- for each offense, and additional imprisonment for default, was deemed appropriate. The appellant's appeal was dismissed, and the trial court's judgment was confirmed.

Conclusion:
The High Court dismissed the criminal appeal, confirming the trial court's judgment of conviction and sentence. The appellant's possession of contraband and failure to rebut the presumption of conscious possession were key factors in upholding the conviction. The court found no procedural irregularities or illegality in the prosecution's case, and the sentence imposed was considered appropriate given the circumstances.

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