2018 (4) TMI 1340 - HC - Indian Laws

Smuggling - Heroin - Baggage Rules - appellant denied the charges and opted for trial, appellant was put to trial - offence under Sections 8(c) r/w 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - validity of conviction and sentences imposed on accused - Held that - Section 54 of the NDPS Act creates a presumption that the Accused is guilty of an offence, if she fails to satisfactorily account for possession of contraband. Section 35 states that in a prosecution under NDPS Act, it would be pre sumed that the Accused has the culpable mental state necessary for the offence - In the instant case, the prosecution has discharged its initial burden. Whereas the appellant in this case has not rebutted the statutory presumption. Therefore, the submission of the appellant that the appellant was not in conscious possession of the same is liable to be rejected. 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 - The appellant has failed to discharge her burden in the manner known to law - In her statement submitted during the proceeding under Section 313 of Cr.P.C. also no plea has been taken that she was not in conscious possession of the contraband. It is to be noted that huge quantity of heroin was recovered from the possession of the appellant at the airport while she was about the board a flight bound for Malaysia. This court does not find any justification in the contention of the appellant that non examination of the person who was allegedly asked to bring M.O.4 suitcase for re-check would cause prejudice to the appellant. This court is of the considered view that the prosecution 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 judgment of conviction and sentence rendered by the trial court. Quantum of sentence - Held that - considering both the mitigating and aggravating circumstances of the case, this court is of the view that 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.

Summary

Issues Involved:
1. Validity of the seizure and search procedure.
2. Evidence of conscious possession of contraband.
3. Admissibility and credibility of witness testimonies.
4. Applicability of statutory presumptions under NDPS Act.
5. Justification of the sentence imposed.

Detailed Analysis:

1. Validity of the Seizure and Search Procedure:
The prosecution's case began with P.W.1, an Intelligence Officer at Chennai Airport, who observed the accused moving suspiciously and intercepted her before she could board a flight. Upon checking her baggage, P.W.1 discovered a concealed packet of heroin. The accused was informed of her rights under Section 50 of the NDPS Act, which she declined. The contraband was seized, samples were taken, and the accused was arrested and remanded. The defense argued inconsistencies in the evidence, such as the date discrepancies on documents and the lack of signatures. However, the court found the seizure procedure valid, noting that the prosecution had followed the required legal protocols.

2. Evidence of Conscious Possession of Contraband:
The court emphasized the concept of "conscious possession" under Section 54 of the NDPS Act, which presumes guilt if the accused cannot satisfactorily account for possession. The defense claimed the accused was unaware of the heroin in her baggage. However, the court noted that the physical possession of the suitcase and the lack of any rebuttal to the presumption of knowledge under Section 35 indicated conscious possession. The boarding pass and baggage tags linked the suitcase to the accused, reinforcing the prosecution's case.

3. Admissibility and Credibility of Witness Testimonies:
The prosecution presented seven witnesses, including P.W.1, who conducted the search, and P.W.3, who confirmed the substance as heroin through chemical analysis. Witnesses P.W.2, P.W.4, and P.W.6 corroborated the events during the seizure. The defense questioned the credibility of these testimonies, particularly the absence of independent witnesses and inconsistencies in documents. The court found the testimonies credible and consistent, noting that the presence of multiple officers during the seizure and the accused's own confession underlined the reliability of the evidence.

4. Applicability of Statutory Presumptions under NDPS Act:
Sections 54 and 35 of the NDPS Act create presumptions of guilt and culpable mental state, respectively, once possession is established. The court held that the prosecution had established a prima facie case, shifting the burden to the accused to rebut these presumptions. The accused failed to provide any evidence or satisfactory explanation to counter the presumption of conscious possession. The court thus upheld the statutory presumptions, finding the accused guilty.

5. Justification of the Sentence Imposed:
The trial court sentenced the accused to ten years of rigorous imprisonment and a fine of ?1,00,000, with an additional two months of imprisonment in case of default. The defense argued for leniency, citing procedural lapses and lack of evidence. However, the court considered the quantity of heroin seized and the seriousness of the offense. It found the sentence appropriate, balancing both mitigating and aggravating factors, and concluded that the trial court's judgment was neither illegal nor irregular.

Conclusion:
The High Court dismissed the criminal appeal, confirming the trial court's judgment of conviction and sentence. The court found that the prosecution had proved its case beyond reasonable doubt, the statutory presumptions under the NDPS Act were rightly applied, and the sentence was justified given the circumstances.