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TMI Blog2017 (10) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Sessions Trial No.2/2002 is hereby affirmed. The conviction of appellant Abdul Aziz for offence under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 recorded by Special Judge (N.D.P.S.Act), Gwalior by judgment dated 27-10-2004 in Special Sessions Trial No. 2/2002 is hereby set aside, and the appellant Abdul Aziz is acquitted of all the charges. The huge quantity of Heroine which has been recovered from the possession of the appellant Rajeev Verma cannot be lost sight. The maximum sentence for offence under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 is twenty years and a fine of ₹ 2 lac. The Trial Court has awarded jail sentence of 10 years and a fine of ₹ 1 lacs. This Court is of the considered opinion that the Trial Court has already adopted a very lenient view while awarding sentence, and hence, the sentence awarded by the Trial Court does not call for interference and hence, the jail sentence of 10 years and a fine of ₹ 1 lacs awarded by the Court of Special Judge (N.D.P.S.Act), Gwalior by judgment dated 27-10-2004 in Special Sessions Trial No.2/2002 is hereby affirmed. The appellant Abdul Aziz is on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of his right under Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985. Hansraj opted for his search by a Gazetted officer, therefore, Shri D. Banerjee, Superintendent, Central Narcotics Bureau was called. Hansraj was personally searched by Superintendent, Central Narcotics Bureau. On physical search, one polythene was found under his shirt. A light pink powder was found. Test was carried out on the spot with the help of kit and it was found that the powder was heroine. The contraband was weighed. Total weight of the contraband was 250 gms. Two samples of 5 gms each were prepared. Hansraj was arrested. He was brought to the office of Commissioner, Central Narcotics Bureau. The F.I.R. was registered. The seized contraband was kept in Malkhana. The samples were sent to Govt. Opium and Alcholide Factory, Neemach. On interrogation, he disclosed that he had brought the contraband to sell the same to co-accused Rajeev Verma, who is resident of Itawah. He also disclosed that on earlier occasion also, he had sold 500 gms of Heroine to Rajeev Verma. He also disclosed that if the premises of Rajeev Verma is searched, then more Heroine can be seized. Accordingly, under the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly, he was also arrested and the jeep was seized. The call details of the appellant Abdul Aziz were checked and it was found that he had talked to the co-accused Bhupendra and it was found that Bhupendra Dubey is also involved in the offence. The Maruti Car of Bhupendra Dubey was seized. Co-accused Arjun Singh @ Lalla was also found involved in the offence. The house of Arjun Singh and Bhupendra were searched, but nothing objectionable was found. The notices were sent under Section 67 of N.D.P.S.Act but they did not appear. Therefore, a complaint was filed against all the accused persons, including the appellants Abdul Aziz and Rajeev Verma. 4. Co-accused Hansraj absconded during the pendency of the Trial and Perpetual Arrest warrant was issued. It appears that subsequently he was arrested and was convicted by judgment and sentence dated 29-1-2008. He had also filed a Criminal Appeal No. 255/2008 before this Court, which has been dismissed by this Court by judgment dated 9-2-2017. However, it appears that since, the co-accused Hansraj had already undergone the sentence awarded by the Trial Court, and was only undergoing the default jail sentence, therefore, the counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no other evidence is available on record. So far as the appellant Rajeev Verma is concerned, there is nothing on record that he was in exclusive and conscious possession of the contraband. He was working as Secretary of Arunodaya Khadi Gramodyog Sewa Sansthan but he had already submitted his resignation prior to the incident and therefore, he is not responsible for the seizure of the contraband from the factory premises. It is further submitted that Section 42(2) of N.D.P.S. Act, 1985 has not been complied with therefore, the prosecution stands vitiated. It is further submitted that there is no entry in the Malkhana registry pointing out that the seized article was sent to the Court. 12. Per contra, it is submitted by the Counsel for the respondent, that the statement of an accused recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 is admissible and would not be hit by Sections 25, 26 and 27 of the Evidence Act, therefore, the Trial Court has rightly convicted the appellant Abdul Aziz. So far as the appellant Rajeev Verma is concerned, it is submitted that since, the appellant Rajeev Verma was the Secretary, therefore, he was the custodian of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Raj Kumar Karwal case [(2003)8 SCC 449] with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a police officer within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.'' 17. A similar view has been adopted by the Supreme Court in the case of Ram Singh Vs. Central Bureau of Narcotics reported in (2011) 11 SCC 347. 18. However, the Supreme Court in the case of Noor Aga Vs. State of Punjab reported in (2008) 16 SCC 417 has held as under :- ''72. When, however, the Customs Officers exercise their power under the Act, it is not exercising its power as an officer to check smuggling of goods; it acts for the purpose of detection of crime and bringing an accused to book. 73. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was, therefore, enacted to subserve a high purpose. 75. The Act is a complete code by itself. The Customs Officers have been clothed with the powers of police officers under the Act. It does not, therefore, deal only with a matter of imposition of penalty or an order of confiscation of the properties under the Act, but also with the offences having serious consequences. 76. Section 53 of the Act empowers the Customs Officers with the powers of the Station House Officers. An officer invested with the power of a police officer by reason of a special statute in terms of sub-section (2) of Section 53 would, thus, be deemed to be police officer and for the said purposes of Section 25 of the Act shall be applicable. 77. A legal fiction as is well known must be given its full effect. (See UCO Bank v. Rajinder Lal Capoor [(2008) 5 SCC 257].)'' 19. The Supreme Court in the case of Raju Premji Vs. Customs, NER Shillong Unit reported in (2009) 16 SCC 496 has held as under:- ''23. We would, for this purpose, assume that such confessions are not hit by Section 25 of the Evidence Act, 1872 but even then they must receive strict scrutiny. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the Division Bench in Kanhaiyalal case had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis- -vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point of time is Noor Aga case [(2008) 16 SCC 417] which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with.'' 21. The Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu reported in (2013) 16 SCC 31 has held as under : ''40. In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhaiyalal case [(2008) 4 SCC 668]. It is more so when this Court has already doubted the dicta in Kanhaiyalal [(2008) 4 SCC 668] in Nirmal Singh Pehlwan [(2011) 12 SCC 298]wherein after noticing both Kanhaiyalal [(2008) 4 SCC 668] as well as Noor Aga [(2008) 16 SCC 417] , th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the exclusive possession of Rajeev Verma, therefore, he cannot be convicted for offence under Sections 8/21, 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985. 25. Before proceeding further, it would be apposite to consider the meaning of Possession , conscious possession and exclusive possession . 26. The Supreme Court in the case of Mohan Lal Vs. State of Rajasthan reported in (2015) 6 SCC 222 has held as under : ''11. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to actus of physical control and custody . Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession . The classical theory of the English law on the term possession is fundamentally dominated by Savigny-ian corpus and animus doctrine. Distinction has also been made in possession in fact and possession in law and sometimes between corporeal possession and possession of right which is called incorporeal possession . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, United States v. Craig; 105 Wash 2d 120 as well as joint or exclusive, Garvey v. State 176 Ga App 268 . The defendants must have had dominion and control over the contraband with knowledge of its presence and character. United States v. Morando-Alvarez 5210 F 2d 882 . Possession, as an element of offense of stolen goods, is not limited to actual manual control upon or about the person, but extends to things under one s power and dominion. MCConnell vs. State 48 Ala App 523. Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. United States v. Ellison 469 F2d 413. To constitute possession of a concealable weapon under statute proscribing possession of a concealable weapon by a felon, it is sufficient that defendant have constructive possession and immediate access to the weapon. State v. Kelley 12 Or App 496 13. In Stroud s Dictionary, the term possession has been defined as follows: Possession [Drugs (Prevention of Misuse) Act, 1964 (c. 64), Section 1(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the object, though he has no physical control over the same. In all this variegated situation, states Harris, the person concerned may still be conferred the possessory rights. The purpose of referring to the aforesaid principles and passages is that over the years, it has been seen that courts have refrained from adopting a doctrinaire approach towards defining possession. A functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy. Thus, the word possession in the context of any enactment would depend upon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object. 16. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word possession refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the coming into force of the NDPS Act and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the appellant-accused cannot take the plea that he had committed an offence under Section 9 of the Opium Act and not under Section 18 of the NDPS Act.'' 27. The Supreme Court in the case of Baldev Singh Vs. State of Haryana, reported in (2015) 17 SCC 554 has held as under : ''12. The testimony of Ram Singh, PW 1 and evidence on record amply establishes physical possession of the contraband by the appellant. The appellant being the driver of the vehicle by all probabilities must have been aware of the contents of the bags transported in the trolley attached to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efence. 13. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 this Court has clearly held that where an accused admits that narcotic drugs were recovered from bags that were found in his possession at the time of his apprehension, in terms of Section 35 of the NDPS Act the burden of proof is then upon him to prove that he had no knowledge that the bags contained such a substance. This Court then went on further to explain as to the standard of proof that such an accused is expected to discharge and the modes vide which he can discharge the said burden. In paras 21 and 22 of the said judgment, this Court held as under: (SCC p. 522) 21. No doubt, when the appellant admitted that the narcotic drug was recovered from the gunny bags stacked in the autorickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in sub-section (2) as beyond a reasonable doubt . If the court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been proven, establishes their control over the bags. The circumstances clearly establish that they were aware of the poppy husk inside the bags and in such a situation, it is difficult to accept that they were not in conscious possession of the said articles. 17. In this context reference to the decision in Madan Lal v. State of H.P. (2003) 7 SCC 465 would be fruitful wherein it has been held thus: (SCC p. 472, paras 22-25) 22. The expression possession is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt. Remembrancer of Legal Affairs v. Anil Kumar Bhunja to work out a completely logical and precise definition of possession uniformly applicable to all situations in the context of all statutes. 23. The word conscious means awareness about a particular fact. It is a state of mind which is deliberate or intended. 24. As noted in Gunwantlal v. State of M.P. (1972 2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us and the intention to retain control and dominion. 19. In view of the aforesaid enunciation of law, once possession is found, the accused is presumed to be in conscious possession as has been held in Ram Singh v. Central Bureau of Narcotics (2011) 11 SCC 347. 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. As the materials brought on record would show, the appellant-accused were sitting in the truck; their presence in the truck has been clearly established; and they had run away from the spot and absconded for some days from the village. It is proven that there were 110 bags of poppy husk in the truck and the appellant-accused were in control of the articles in the truck. Therefore, there can be no iota of doubt that they were in conscious possession of the same. In view of the aforesaid analysis, we do not find any force in the submission of the learned counsel for the appellants.'' Thus, it is clear that when a person is found to be in possession of the contraband, then it can be presumed that he was in conscious possession of the same and the burden shifts on the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir creditworthiness. 11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad v. State of M.P., (2007) 7 SCC 625 it was held as under: (SCC pp. 632-33, paras 25-27) 25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) The lock of iron Almirah was broke open with the consent of the appellant Rajeev Verma and 1 Kg 450 gms of Heroine was found. (vi) The Appellant Rajeev Verma was the Secretary of Khadi and Gramodyog and hence was the custodian of the property kept in Factory premises. (vii) Certain articles which are used for preparing Heroine were seized from room situated on the left side of the entrance gate. (viii) The appellant Rajeev Verma has taken a defence that he had already resigned from the post of Secretary and was not the Secretary on the date of search and was not the custodian of the iron Almirah. 31. Usman (P.W.1) is the driver of the bus in which the co-accused Hansraj was travelling. Although this witness has partially not supported the prosecution case, however, his evidence is not material for considering the case against the appellant Rajeev Verma. 32. Lalji Verma (P.W.2) is a witness of search in the house as well as the factory premises of the appellant Rajeev Verma. This witness has partially supported the prosecution and has stated that the house of the appellant Rajeev Verma was searched, however, nothing was seized. However, he did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unodaya Khadi Gramodyog village Phuphai Distt. Itawah. Immediately after entering inside the factory premises, there was one room on both sides of the entrance gate. In a room situated on the right side of the entrance gate, one iron almirah was kept which was locked. The appellant Rajeev Verma could not find the key and accordingly, the lock of the almirah was broke open with the consent of the appellant Rajeev Verma. One polythene packet containing light brown coloured powder was kept in the locker which was not locked. Rajeev Verma, also disclosed the said powder to be Heroine. The powder was tested with the kit which was found to be Heroine. The powder was weighed and the total weight of Heroine was 1 Kg 450 gms. Two samples of 5 gms each were prepared and were sealed and they were marked as S1 and S2. One room on the left side of the entrance gate was situated. When it was opened, apparatus for manufacturing Heroine were found and Ex. P.10 was prepared. The list of apparatus are Ex. P.11 and P.12. The appellant Rajeev Verma was arrested vide arrest memo Ex.P.15 and information about the seizure of Heroine was given after coming back to Gwalior as per Section 57 of N.D.P.S.Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , at about 11:30 in the night, they left for Itawah where they met with the team which had come from the office of Commissioner, Narcotics, Lucknow. They went to the house of the appellant Rajeev Verma, but nothing was found. Thereafter, they went to the Khadi Gramodyog, run by the appellant Rajeev Verma, and entered inside the Factory premises. One iron Almirah was kept in the room situated on the right side of the entrance gate. On query, the appellant Rajeev Verma, could not produce the key and accordingly, the lock of the almirah was broke open with the consent of the appellant Rajeev Verma. Powder of light brown colour was found in a polythene. The same was tested with the help of kit on the spot itself, and it was found to be Heroine. The powder was weighed and the total weight of the powder was 1 kg 450 gms. Two samples of 5 gms each were prepared and were sealed on the spot. The samples were marked as S1 and S2. Article A is the sample S2. Article D is the seized Heroine. In the Court ''One packet which was received from the Govt. Opium and Alchalide Factory, Neemuch was opened and one paper in open condition was found in which one polythene packet was kept in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office bearers about the position of the appellant Rajeev Verma. The appellant Rajeev Verma was not having the key of the Almirah also. Only one Chowkidar was present in the premises. He did not record the statement of Chowkidar. He has not filed any complaint in Itawah Court nor had lodged any report at Itawah. He further denied the suggestion that the appellant Rajeev Verma, had no concern with Khadi Gramodyog. He further clarified that as there was no President, therefore, he did not record the statement of the President of Khadi Gramodyog. Before taking search of the house of the appellant Rajeev Verma, he had served a notice on him which is Ex. P.9. He further clarified that he had not recorded the statement of the Chowkidar as he was very old. He further denied the suggestion that the signatures of the appellant Rajeev Verma, were obtained on the papers under pressure. In further cross-examination, this witness admitted that he had not obtained any search warrant for the search of the house of the appellant RajeevVerma. He further admitted that he had not obtained any search warrant for the search of the Factory Premises. In Ex. P24 which is the statement of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire work of the Society. He could not specify that on what date, information with regard to the submission of the resignation of the appellant Rajeev Verma and the election of New Managing Committee was sent to the Registrar, Firms and Societies. Thus, there is nothing on record to show that when the necessary information was sent to the Registrar, Firms and Societies. 43. Furthermore, the resignation of the appellant Rajeev Verma is dated 11-7-2001 and the meeting of the Managing Committee was called on the same date, the resignation of the appellant was accepted and new Managing Committee was constituted. What was the need of such a swift action on the part of the Society has not been explained. As per the bye-laws, for summoning a special meeting a notice of 24 hours is necessary which was not done. Thus, it is clear that the resignation of the appellant Rajeev Verma and all other proceedings were fraudulently prepared after the search was carried out. The search was carried out on 7-9-2011 and the so called resignation was tendered and accepted on 11-7-2001. The appellant Rajeev Verma could have examined his successor ( Rohit Verma) to prove that when he took over the char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that] if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as a discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug peddlers.'' 48. The Supreme Court in the case of Bahadur Singh Vs. State of Haryana reported in (2010) 4 SCC 445 has held as under : ''19. Apart from the decision in Sajan Abraham case [(2001) 6 SCC 692], the decision of the Constitution Bench in Karnail Singh case [(2009) 8 SCC 539], has also made it clear that noncompliance with the provisions of Section 42 may not vitiate the trial if it did not cause any prejudice to the accused. Furthermore, whether there is adequate compliance with Section 42 or not is a question of fact to be decided in each case.'' 49. If the submissions made by the Counsel for the appellant are considered in the light of the law laid down by the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded over the charge on 11-7-2001, has also not been examined by the appellant. Thus, this Court is of the view that the Rajeev Verma, being the custodian of the iron Almirah kept in a room situated on the right side of the entrance gate, was in possession of the same. 1 kg 450 gms of Heroine was found in the Almirah whose lock was broke open with the consent of the appellant Rajeev Verma. As Rajeev Verma was in possession of 1 kg 450 gms of Heroine, therefore, it can be presumed that he was in conscious possession unless and until, the same is disproved by the appellant Rajeev Verma. The appellant Rajeev Verma has taken a defence that he had already tendered his resignation on 11-7-2001. however, there is nothing on record as to when the information of the resignation of the appellant Rajeev Verma was sent to the Registrar, Firms and Societies. Thus, it is clear that the information, if any, to the Registrar Firms and Societies, must have been sent after the search, therefore, the proceedings of the Society, on which the appellant Rajeev Verma has relied upon, cannot be accepted. Hence, in the light of Section 35 of N.D.P.S. Act, it is proved beyond reasonable doubt that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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