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TMI Blog2016 (4) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 - CRL. A. 1598/2013, CRL. A. 1611/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackside of the seat in the cabin were recovered. The total quantity on weighing came to 90 kg of Ganja. Necessary proceedings were conducted during investigation. Statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, a charge-sheet was filed against both the appellants in the Court. The prosecution examined fifteen witnesses to substantiate its case. In 313 Cr.P.C. statements, the appellants denied their involvement in the crime and pleaded false implication. The trial resulted in their conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeals have been preferred. 4. I have heard the learned counsel for the parties and have examined the file. Counsel for the appellants urged that the Trial Court did not appreciate the evidence of the prosecution witnesses in its true and proper perspective and committed grave error to base conviction on the uncorroborated testimonies of the police officials. The prosecution was unable to establish if A-1 was driver in the said vehicle. No fair investigation was carried out from PW-4 (Daljeet Singh), owner of the truck and PW-9 (Talwinder Singh) owner of the J.S.Roadlines with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e driver for the truck. He further informed that A-1 was employed as a driver by him in his transport about one and a half month prior to the incident. He further disclosed that on 29/30.05.2011, the truck loaded with the grocery articles was taken by A-1 to Mujaffarpur (Bihar) and he was asked to bring litchi from Mujaffarpur (Bihar) on return to Delhi. This witness was not cross-examined. PW-10 (Laxman Prasad) disclosed that on 01.06.2011, he had hired the truck in question and got loaded 668 petties of litchi in the said truck. After getting the bilty from the transport, the truck was sent to Delhi. In his presence, no Ganja was loaded in the truck. He identified copies of the said bilty (Ex.PW-8/A Ex.PW-8/B). This witness was also not cross-examined. No suggestion was put to these witnesses if A-1 was not the driver on the said truck and A-2 was not his helper. 7. In 313 Cr.P.C. statement, A-1 admitted himself to be the driver on the truck bearing No. HR-55 G-6471 on 03.06.2011. He further admitted that he was present between 04.00 p.m. to 05.00 p.m. in the cabin of the truck along with A-2 and both of them were apprehended by the police officials at the gate of Azad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the truck. It was not a small quantity. It was for A-1 to explain as to how and in what manner, the said three kattas containing 30 kg each of Ganja came to be loaded in his truck. It is unbelievable that A-1 being the driver of the truck would not come to know about the huge quantity of Ganja in three kattas loaded in the truck. A-1 s post-event conduct is unreasonable. In 313 Cr.P.C. statement he denied the recovery of the Ganja from the truck whereas A-2 was fair enough to state and admit that three plastic kattas containing 90 kg of Ganja were recovered from the roof top of the truck. Apparently, A-1 being the driver of the truck by all probabilities was in conscious possession of the three bags of Ganja loaded in the truck. A-1 did not assign any oblique motive to the police officials with whom he had no prior animosity or acquaintance as to why they would file a false case against him. A-1 s employer did not give clean chit to him. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les out if A-2 used to transport contraband along with A- 1. A-2 s conviction is primarily based only upon his disclosure statement (Ex.PW-3/G). 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. Conviction and sentence recorded by the Trial Court qua him cannot be sustained. 12. In the light of above discussion, A-2 s appeal is allowed and conviction and sentence recorded by the Trial Court are set aside. He shall be released forthwith if not required to be detained in any other case. 13. Since the minimum se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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