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TMI Blog2018 (4) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apped packet containing powdered substance concealed into the suitcase, then it was tested with the field test kid by P.W.1 and the tested powder was found to be heroin. The substance in the packet was weighed as 2015 grams. On further inquiry, the accused also admitted the same. P.W.1 took two samples of each weighing 5 grams from the powder in a sealed cover with customs seal with identification marks thereon. The remaining bulk heroin were packed and sealed with customs seal. She seized the suitcase and obtained the signature of the witnesses and accused and signed in the labels. She also seized the travel documents of the accused. Thereafter, the accused was taken on judicial remand. P.W.7 Superintendent in Air Prosecution Unit prepared a remand report and produced the accused along with contraband before the Special Court. 4. The accused was produced before the trial court and the substance of the offences were explained and charges were framed. The appellant denied the charges and opted for trial. Thus, she was put on trial. 5. Based on the materials collected during the course of investigation, the prosecuting agency has examined as many as 7 witnesses as P.W.1 to P.W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... boratory at Chennai. He has spoken about the examination conducted by him. According to him, during tests the contraband were found to be that of heroin. Ex.P.11 is the requisition letter received from the Court and Ex.P.12 is the chemical analysis report. 9. P.W.4, the Superintendent of Customs in the Chennai Docks Section as Apraiser, has stated that he was present at the relevant point of time when the baggage of the accused was found with contraband. He has further stated that the accused gave a statement on her own handwriting before P.W.1 in which he was signed as a witness and the same is marked as Ex.P.6. 10. P.W.5, the Superintendent of Revenue Recovery Unit, Chennai has stated that he sent the letter to Delhi as directed by Assistant Commissioner. The said letter is marked as Ex.P.13 and he got a reply from Delhi and the reply to the same is marked as Ex.P.14. 11. P.W.6, was working as Supervisor in a Duty Free Shop, at Anna International Terminal during the relevant point of time. He stated that, as requested by P.W.1, witnessed the examination of red colour stroller bag, recovery of a pack concealed beneath the bottom portion of the suitcase. He further stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e criminal appeal and contend that when the appellant was about to board a flight, on suspicion, she was intercepted by P.W.1 directed to bring the baggage of the appellant and on a thorough checking in the presence of P.W.2, P.W.4 and P.W.6, she found to have smuggled 2015 kgs of heroin by concealing the same in her suitcase (M.O.4) and the same was proved by chemical analysis report is that of heroin. Thus, the prosecution proved its initial burden of proving its case and that the learned trial Judge after analysing the material documents rightly presumed the culpable mental state of the appellant that she was with conscious possession of such a huge quantity of heroin which had been concealed in her own baggage. According to him, once the possession of contraband has been proved, then, the burden shifts on the appellant to prove that she was not in conscious possession of the contraband. In the instant case, the appellant was not able to discharge the onus of proof that she was not in conscious possession and therefore, in view of the provision in Section 54 of the NDPS Act, the trial court rightly invoked the presumption and found that the appellant was guilty and imposed the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. It is needless to point out that before drawing presumption under Section 34 and Section 35 of the NDPS Act, the prosecution must establish a prima-facie case and which the appellant is permitted to rebut. 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 physical possession of the contraband which was admittedly recovered from the checked-in baggage of the appellant, the knowledge that this substance was not heroin has not been rebutted by the appellant. It is also not the case of the appellant that the said checked-in baggage did not belong to her. The baggage slips (Ex.P.3) and boarding pass (Ex.P.1) would clearly establish that the baggage bel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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