As per the judgment and order dated 04.03.2006 in NDPS Case No.1 of 2005 by the 3rd Additional Sessions Judge, Ahmedabad District (Rural) Ahmedabad. the appellant herein came to be convicted and sentenced for the offences punishable under section 8(c) and Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985, to rigorous imprisonment for ten years with fine of Rs. 1 lakh and in default of payment of fine to under go further imprisonment for six months, In the present appeal, the appellant seeks to challenge the said judgment questioning the legality of the conviction and sentence. 2. The prosecution case is that on 09.10.2004 when the complainant Shri M.J. Pathan, Police Inspector of NDPS Cell, C.I.D. Crime Branch along with Shri R.P. Varanda, Deputy Police Inspector and Shri Naturbhai Makwana, Head Constable and other policemen were patrolling the city area of Ahmedabad for detection of narcotics related crimes, at around 10.30 p.m. they received a secret information that a person named Akhtar Ali Saiyed wearing black pants and a shirt with lining, engaged in the business of horse carting and staying in the hut situated opposite the ice factory of one Ramjubhai Khoja, on the road going from Vishala Circle to Narol, was having a quantity of contraband substance cacoine (Charas) and that he was waiting for the customers. Upon receipt of such information the raiding party prepared a report and forwarded to the higher officer and arranged for conducting raid. A search order/resolution (Exh.12) was made by the police competent officer under section 42 of the Act, according to which, it was resolved that the hut of the appellant was required to be searched, as there was specific information that he had kept unauthorisedly in his hut quantity of charas. The appellant was accordingly explained in writing (Exh.13) that his hut was to be searched out for the purpose.
2.1 Two persons were called as Panchas and after completing the formalities of drawing panchnama, etc. the members of the raiding party reached the place. They parked their jeep on the road side and walked towards the open plot. They found that as per the information, a person was resembling the description on the South near kachha huts. A black coloured horse was tied in the nearby. The raiding party cordoned the area and the person asking him that as per their information, he was having the quantity of charas kept illegally and he was selling the same. He was informed that for that purpose a search was required to be conducted in his hut. He was asked whether he would opt to keep any gazetted officer or magistrate present during the search, to which the said person said no. He was explained the details in the Hindi language, the language of his understanding.
2.2 It is the further case of the prosecution as per the complaint (Ex.45) filed by Shri M. J. Pathan, Dy. Police Inspector. NDPS cell, LC, D Crime, Gandhinagar (PW-11), in the raid it was ultimately found that the total quantity of charas weighing 4830 kgs, worth rupees 4,83,000/- comprised in four different packets were found on digging the soil below the blue colored plastic carpet on which said person was sitting. The search was undertaken of the body of the appellant, as well as in the hut and elsewhere in the nearby, but nothing was found except as above. However, below the plastic bag/carpet on which he was sitting it was noticed that a pit appearing to be recently dig was filled back. The said person did not give satisfactory answer. The clay was taken out by hand. In the pit, a white bag was found lying. The same was containing four packets, of which one packet was open from its corner. In those packets a blackish brown coloured substance was noticed and the said substance smelt to be the Charas. The officers of Forensic Science Laboratory were called and upon examination they found that the the substance was Charas. The complaint described the necessary procedure regarding the examination of the substance, weighing thereof sampling and sealing.
2.3 The complaint was registered by Police Inspector Mr. Pathan (PW- 11) at Aslali Police Station. The Aslali Police Station registered the same and thereafter forwarded it to Vejalpur Police Station as the offence was committed within the jurisdiction of Vejalpur Police Station. After investigation, sufficient material too constituting offence under section 8(c) and section 20 having been found against the appellant, the charge sheet came to be filed. before the court of J.M.F.C. Ahmedabad (Rural). As the offence was triable by the Court of session only the case was committed to the Sessions Court under section 209 of the Criminal Procedure Code, 1973 which was registered as NDPS case No.1 of 2005 before the court of Sessions Judge, Ahmedabad (Rural) at Ahmedabad. In course of the trial the prosecution examined 12 witnesses and produced documentary evidence. The particulars of the witnesses were examined and other evidence produced are listed at Exh. No. 5 and Exh. No. 6 of the impugned judgment.
3. Heard learned advocate for the appellant and learned A.P.P. Mr. R.C. Kodekar for the respondents. Learned advocates took the court through the evidence on record. They were heard at length.
4. Learned advocate for the appellant submitted that the prosecution case was got up and was not believable, and that the appellant was falsely implicated. It was submitted that the procedure regarding weighment and sealing in accordance with law. The weighment was privately done and was doubtful. It was next submitted that there was long time gap between the seizure of the contraband and registering the complaint. Accordingly to learned advocate, the Panchnama was not recorded at the place where the alleged recovery was made. It was submitted that the indication of place where the appellant-accused was sitting allegedly did not match with the substance when the description in the complaint (Exh.45) Panchnama (Exh.11) and the evidence of the Panch witness (Exh.10) are compared. It was submitted further that it was not proved that substance was found from his possession and that the necessary ingredient was missing.
4.1 On the other hand, learned Additional Public Prosecutor supported the impugned judgment to submit that the conviction was duly recorded. The substance was recovered from the place which was near to appellant’s hut. Not only that the substance was found lying on which the appellant was sitting Learned APP therefore submitted that the appellant was in possession. It was submitted that conscious possession was demonstrated and there was no other inference possible. He submitted that section 35 of the Act raises presumption of culpability. According to him the offence under the NDPS Act was made out and the accused was rightly convicted.
5. As per the evidence of Jayendrasinh Waghela (PW-3), posted as P.S.I at Aslali Police Station at the relevant time, stated (Ex.18) the complaint (Ex.45) was lodged by Mr. Pathan (PW-2) on 10.10.2004, which he received and registered as FIR (Ex.20) and thereafter it was sent along with the Muddamal to Vejalpur Police Station, as the offence had occurred within limits of Vejalpur Police. Lahu Patil (PW-4), ASI at Vejalpur Police Station, deposed (Ex. 21) that he received the papers with muddamal at 8:00 pm while he was on duty, and he entered the details in station diary. Vijaysinh (PW-5) who was on duty in the investigation squad at Vejalpur police station took the samples in sealed conditions to FSC as stated by him (Ex. 23). He personally handed over the same to the F.S.L. Officer at Gandhinagar, going personally there. The packets in sealed condition were received by F.S.L. Office. Those four packets were weighed by the members of the raiding party in a provision store belonging to one Indrasen Ramsahai (PW-1). Two packets weighed 1000 gms., two other packets weighed 990 gms., and the fifth packet had in it 850 gms. of the contraband substance. The weighment was certified as per the certificate (Exh.9).
5.1 Learned advocate for the appellant raised contentions regarding inaccuracy in procedure of weighment of contraband and in respect of sealing procedure. He, however, despite best efforts could not point out any serious flaw or material irregularity in such procedure. The relevant evidence showed that these procedures were duly complied with as per law. The process of collecting samples and sealing them was properly done and the Muddamal was forwarded and received by FSL in sealed condition. From the evidence, however, it was demonstrated that the contraband was seized in the noon at around 03.30 p.m. on 09.10.2004. The Panchnama was concluded at 8.00 p.m. on that day. The weighment was done after a time gap and the samples of the contraband were forwarded to the Aslali Police Station at 01.00 p.m. in the night on the next day, i.e. 10.10.2004. It was contended that no explanation was offered for late sending of muddamal when the Police Station was at a distance of 10-15 minutes from the place of seizure. It was submitted that the conduct of the officers in keeping with them the contraband material seized for considerable unexplained time raised doubts, seriously weakening the prosecution case.
5.2 The relevant evidence on record included the evidence of the complainant and Munavarkhan Pathan (PW-11) the Police Inspector, CID Crime, Narcotic Cell, Gandhinagar, who led the raiding squad, in his evidence (Exh.40) inter alia stated that upon receipt of information in course of patrolling, necessary report (Exh.30) was prepared and was forwarded in sealed cover to the higher officer. At the place, one person having the same description given in the information was sitting there and at the distance of 15 feet, a black horse with a mutilated leg was tied. That person – the appellant herein, identified himself as Akhtarali. Imambux stating that he was original resident of Uttar Pradesh, and presently staying in the hut situated near the open plot. It was deposed by PW-11 that when the said person was searched in presence of the Panchas, nothing incriminating was found from him. According to PW-11, said Akhtarali was sitting on a piece of blue coloured carpet. The said carpet was removed. The soil below it was dug out whereupon the packets were found which contained the contraband substance. The same was seized and taken into custody by the members of the squad, as per seizer memo (exh.16). The accused was thereafter arrested. In his evidence PW-11 deposed that the accused was asked for digging out the soil and the contraband was in the pit, but aspect that the accused had dug out the muddamal was not specifically stated either in the complaint or in the Panchnama.
5.3 The Panchnama (Ex. 19) was started to be recorded on 9.10.2004 at around 3.30 pm and was concluded at 8 pm. One of the two Panchas Javed Alimammad Shaikh (PW-2) was examined. In the Panchnama the process of seizer of the contraband, the sampling and sealing procedure was recorded. It was inter alia stated in the Panchnama that the pit was two feet deep and on feet wide, from which the quantity of cocaine was dug out. On the South of that place, there was a Baval tree at the distance of about is feet, and thereat black coloured horse without one leg was tied. On further Southwards of the plot, an agricultural field of one Jashubhai Patel. On the East there was open land and there were also Baval Tree and other huts, 100 mtrs away after leaving open place on the North, the hut of the accused was situated and therein the household articles were lying. The Panch Javed (PW-2) deposed (Ex.10) describing the place that there was a hutment comprising of 40-50 huts and the hut of the accused was last in the row. From 5 to 6 feet away from the hut, the horse was kept. It was deposed that the way going to ice factory passes near this hut PW-2 Stated that there was an open space of 15-20 feet where the accused was sitting, but decried that there was an open plot of 50-60 feet.
5.4 It appears that the description of the place given in the complaint and in the Panchnama (Ex.11) and in the evidence (Ex.10) of the Panch withers (PW-3) who was examined to prove the Panchnama have variations in them to certain extent and therefore eludes the precision in indicating what was the exact place where the accused was sitting and the place where his horse was tied and kept, and where huts were located. What emerges clearly was that the place was open and abutting the way or close to it, which was going to ice factory and the accused was thus sitting at such place.
6. It is settled proposition of law that in order to constitute the offence under section 8(c) and 20 of the NDPS Act, the possession of the contraband must be a conscious possession. In State of Punjab v. Balkarsing (AIR 2004 SC 4606) the apex court held and observed as under:
“The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimony of P.W. 1 Balbir Singh and P.W. 2 ASI Jarnail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in village Lohgarh. The respondents belonged to different villages. The respondent-Balkar Singh is a resident of village Bira Bedi in District Hisar while respondent-Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of respondents at the place from where the bags of poppy husk was recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court.”
6.1 In Narcotics Control Bureau, Jodhpur v. Murlidhar Soni (AIR 2004 SC 4524), the Supreme Court held that as there was failure on the part of prosecution to show conscious possession of the contraband and that there was no material to show that the accused had knowledge that the bag contained any contraband, the requirement that the proof of knowledge and conscious possession of the contraband being sine qua non, the acquittal was proper. The principle regarding necessity to prove the conscious possession was also reiterated was reiterated by a Division Bench of this Court in State of Gujarat v. Hemabhai Chamarija Gamit [(2012) 2 GLR 1174] by relying in Balkarsing (supra).
6.2 On careful consideration of the prosecution case and cumulative reading of the evidence led, it is seen that the prosecution has failed to show and establish necessary link between the accused-appellant and the muddamal contraband seized. No positive evidence in that regard has been led or is on record. In order to constitute an offence under the Act, the recovery of the contraband has to be linked with the accused. It is this nexus which alone sustains the requisite element of conscious possession.
A mere fact that the Charas was found, according to the prosecution theory, by digging pit below the soil where the accused was sitting was not enough in the facts and circumstances of the case, to establish the link and to conclude about conscious possession of the appellant accused. The place where he was stated to have been sitting was a place of road humming with pedestrian and other traffic. Admittedly the accused was physically searched nothing was recovered from his person. Nor anything was found or seized form the hut of the accused where he was staying. There was a cluster of huts in the vicinity including the hut of the accused, who was doing business of running horse-cart.
6.3 There is no evidence is on record to convincingly show that the accused appellant had knowledge about the substance concealed in the soil below where he was sitting. It was the duty of the prosecution to lead evidence on that line. Plastic bag/carpet on which the accused was sitting and below which the contraband was recovered after digging out soil according to the prosecution case, was not recovered in the muddammal. The carpet was mentioned in the Panchnama (Exh.11), but was not recovered. This assumes importance since the prosecution case is that the quantity of cocaine (charas) was kept inside the soil below that carpet. In absence of anything shown or proved suggesting the knowledge of the accused about the contraband, it is not possible implicate him or to attribute to him with the crime. It is quite probable that the accused was not aware about the substance lying concealed in the soil, and that he had no knowledge about the same. From the facts and from the attendant circumstances, it cannot be presumed or concluded beyond reasonable doubt that the accused appellant was in possession of the Charas and that his possession was a conscious possession.
6.4 Once the elements of factum of conscious possession and the necessary link of the accused with the contraband are not established from evidence on record, the statutory presumption about culpability of the accused cannot be imported. It is true that sec. 35 of the Act provide for such presumption, however, which could be raised only when possession of the muddamal is proved. In Jinabhai Kalabhai Rajput Vs. State of Gujarat [1999 (1) GLH 246], it held and observed by this High Court as under.
“The statutory presumption incorporated under Section 35 and Section 54 of the N.D.P.S. Act would be attracted only when first important part of the possession of the contraband articles by the accused is established without doubt. Section 54 provides statutory presumption of culpable state of the accused. Looking to the seriousness nature of the offence of drug trafficking which effects the society at large, designedly and devisedly, the Parliament in its wisdom has provided two statutory presumption under Section 35 and Section 54 of the N.D.P.S. Act. The culpable mental state shows the intention, knowledge or motive which, at times, may be difficult, to establish, and therefore, under Section 35 presumption of the culpable mental state of the accused is provided for. With the result, in any prosecution for an offence under the provision of N.D.P.S. Act, which means culpable state of mind of the accused. The Court is empowered to presume the existence of such mental state of an accused. Of course that presumption would come into play only after the link between the illegal or contraband drug or articles and the accused is established without doubt. Again it is a presumption, therefore, it will always be open to the accused to prove that the statutory presumption of culpable mental state of mind of the accused was not in existence in a particular given case. Since we have found that the prosecution has not been, successfully able to prove that the illegal charas was found from the suitcase belonged to or was in possession of the accused, the provision of Section 35 would not be attracted.”
7. For the foregoing reasons, we are of the view that the prosecution failed to establish conscious possession of the accused of the contraband and, therefore, the conviction cannot be upheld. The appeal deserves to be allowed, same is allowed. The judgment and order of conviction and sentence for the offence punishable under Section 8(C) read with Section 20(B(ii)(c) of the NDPS Act rendered in NDPS Case No.1 of 2005 dated 04.03.2006 passed by the learned 3rd Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad, is hereby set aside. The appellant- Akhtarali Imambax Saiyed is acquitted of all the charges levelled against him. He is ordered to be set at liberty forthwith, if not required in any other case. Fine, if any paid by the appellant, is ordered to be refunded to him.
(A.L.DAVE, J.) sndevu (N.V.ANJARIA, J.)