Dhanesh Puri Guru Prem Puri vs State Of Mah. Thr. Ps Inspector Railway ...
2025 Latest Caselaw 4947 Bom

Bombay High Court

Dhanesh Puri Guru Prem Puri vs State Of Mah. Thr. Ps Inspector Railway ... on 23 April, 2025

2025:BHC-NAG:4210




              Judgment

                                                           396 apeal238.23

                                          1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                         CRIMINAL APPEAL NO.238 OF 2023

              Dhanesh Puri Guru Prem Puri,
              aged about 47 years, occupation Sadhu,
              r/o Lonawala Khandala, Gram Godon,
              district Pune, presently r/o Great Noida,
              Uttar Pradesh.
              (Presently at Central Jail, Nagpur) ..... Appellant.

                                  :: V E R S U S ::

              State of Maharashtra,
              through Police Sub Inspector,
              Railway Police Station, Nagpur.   ..... Respondent.

              Shri Naman Bhangde, Advocate h/f Shri A.K.Bhangde,
              Counsel for the Appellant.
              Mrs.S.S.Dhote, Additional Public Prosecutor for the
              Respondent/State.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 02/04/2025
              PRONOUNCED ON : 23/04/2025

              JUDGMENT

1. By this appeal, the appellant (accused) has

challenged judgment and order dated 17.3.2023 passed

.....2/-

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396 apeal238.23

by learned Special Judge (NDPS Court), Nagpur

(learned Judge of the trial court) in NDPS Special Case

No.24/2017.

2. By the judgment impugned in the appeal, the

accused is convicted for offence under Section 20(b) of

the Narcotic Drugs and Psychotropic Substances Act,

1985 (the NDPS Act) and sentenced to undergo

rigorous imprisonment for 3 years and to pay fine

Rs.25000/-, in default, to undergo simple imprisonment

for 3 months.

3. Brief facts of the prosecution case emerged from

the police papers and recorded evidence are as under:

The report is lodged by PSI Datta Pendke, who

was night duty officer on 1.2.2017 at Railway Police

Station (RPF), Nagpur. At about 8:54 am, on 2.2.2017,

PSI Bose of RPF Nagpur submitted a letter that the

.....3/-

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396 apeal238.23

accused, resident of Lonawala, taluka Khandala, district

Pune, is travelling in Vishakhapatnam-Nijamuddin

Express by illegally possessing contraband "Ganja" in his

bag. Therefore, the accused has been intercepted by

conducting a raid in bogie where the accused was

sitting. The search was offered by the RPF Officers to

the accused and his right to get himself searched before

gazetted officer was also informed by a written

communication. The investigating officer has also

called two panchas and a photographer. The accused

was brought on the platform and during search of his

bag, contraband article "Ganja" weighing 14.676

kilograms was found in his bag. Accordingly, the

panchanama was drawn in presence of panchas.

Necessary samples were collected, seizure memo was

also drawn. The seized muddemal articles were

.....4/-

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forwarded for the inventory. After registering the

offence, the accused has been arrested.

4. During investigation, the investigating officer

forwarded the contraband articles to the Chemical

Analyzer. Relevant statements were recorded and after

completion of investigation, chargesheet was filed

against the accused.

5. Learned Judge of the trial court framed the

charge vide Exh.19 against the accused. The accused

pleaded not guilty and claimed to be tried.

6. In support of the prosecution case, the

prosecution examined in all 9 witnesses, as under:

     PW                      Names of Witnesses                Exh.
     Nos.                                                      Nos.





                                                                .....5/-
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                                                    396 apeal238.23

7. Besides the oral evidence, the prosecution placed

reliance on requisition letter to photographer Exh.35,

spot panchanama Exh.36, inventory panchanama

Exh.37, requisition to panchas Exh.41, arrest

panchanama Exh.43, report Exh.54, FIR Exh.55,

certificate under Section 52-A Exh.73, and CA Report

Exh.74.

8. On the basis of the oral as well as documentary

evidence, the prosecution claimed that it has proved the

case against the accused. All incriminating evidence is

put to the accused in order to obtain his explanation by

recording his statement under Section 313 of the CrPC.

.....6/-

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396 apeal238.23

The defence of the accused is of total denial and of a

false implication.

9. After appreciating the evidence, learned Judge of

the trial court convicted the accused as the aforesaid.

10. Being aggrieved with the same, the present

appeal is preferred.

11. Heard learned counsel Shri Naman Bhangde h/f

learned counsel Shri A.K.Bhangde for the accused and

learned Additional Public Prosecutor Mrs.S.S.Dhote for

the State. They have taken me through the entire

evidence.

12. Learned counsel for the accused submitted that

the prosecution could not prove the conscious

possession of the contraband article with the accused.

During cross examination, it came on record that

photographer as well as PW2 pancha Rupchand Yadav

.....7/-

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came on the spot when the accused was already brought

at the platform. There is no compliance as to Section

50(1) of the NDPS Act. Exh.42, notice under Section

50(1) of the NDPS Act, is also prepared at about 6.00

am. Thus, there is a long gap between detaining the

accused and preparing the panchanama. Though the

evidence of the pancha shows that the raid was

captured in CCTV camera, no CCTV Footage was

produced. The contents of the panchanama are not

explained to the pancha in Hindi Language. There is no

compliance as to Section 42 of the NDPS Act as secret

information was not reduced into writing and

forwarded to the superior officer. The conscious

possession over the contraband article itself is not

established.

13. In support of his contentions, learned counsel for

the accused placed reliance on following decisions:

.....8/-

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396 apeal238.23

1. Mangilal vs. The State of Madhya Pradesh, reported in 2023(5) Mh.L.J. (Cri) (SC) 321;

2. State of Himachal Pradesh vs. Raghubir Singh and ors, reported in 2024 ALL SCR 1283;

3. Vijay Pandey vs. State of Uttar Pradesh, reported in AIR 2019 SC 3569;

4. Gorakh Nath Prasad vs. State of Bihar, reported in AIR 2018 SC 704;

5. Union of India vs. Jarooparam, reported in AIR 2018 SC 1927;

6. Vijay Jain vs. State of Madhya Pradesh, reported in (2013)14 SCC 527;

7. Pratap Bhimsingh Parera vs. The State of Maharashtra and anr, reported in 2019 ALL MR (Cri) 1212;

8. Santosh s/o Bhagwan Waghmare and anr vs. The State of Maharashtra, reported in 2017 ALL MR (Cri) 2661, and

9. Sathaliya s/o Jalamsingh Wardawal vs. State of Maharashtra, reported in 2008 ALL MR (Cri) 626.

.....9/-

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396 apeal238.23

14. Learned Additional Public Prosecutor for the

State supported the judgment impugned in the appeal

and submitted that the accused was found carrying the

contraband articles with him. During the personal

search and interrogation with the accused, it revealed

that the bag belongs to the accused and his conscious

possession over the bag is established by the

prosecution. The notice given under Section 50(1) of

the NDPS Act shows that there was compliance of

mandatory provisions as well as of Section 42 of the

NDPS Act as the information was not only reduced into

writing but also it was forwarded to the superior officer

officer. The evidence on record sufficiently proves the

involvement of the accused in the alleged incident.

There is a compliance of Section 52-A of the NDPS Act

also. Thus, in view of the above evidence, the

prosecution has established the charge against the

.....10/-

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396 apeal238.23

accused. Thus, the appeal is devoid of merits and liable

to be dismissed.

15. In support of her contentions, learned Additional

Public Prosecutor for the State placed reliance on

following decisions:

1. Gian Chand and ors vs. State of Haryana, reported in (2013)14 SCC 420;

2. Baldlev Singh vs. State of Haryana, reported in (2015)17 SCC 554;

3. Rakesh Kumar Raghuvanshi vs. State of Madhya Pradesh, reported in 2025 SCC OnLine SC 122, and

4. Criminal Appeal No.250/2025 (Bharat Aambale vs. The State of Chhattisgarh) decided by the Hon'ble Apex Court on 6.1.2025.

16. PSI Datta Pendke, was the person who had set the

law into motion. However, he reported to be dead and,

therefore, his evidence is not recorded.

.....11/-

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396 apeal238.23

17. PW6 Santosh Nimbhorkar, testified that he was

writer of PSI Datta Pendke on 2.2.2017 and he was

present in the police station from 9:00 am to 9:00 pm.

During his presence, PSI Bose of RPF, Nagpur

approached the Railway Police Station and filed a

written report that he received the information that in

train Samta Express bearing No.12807 one person is

travelling in AC Class-III and transporting the

contraband "Ganja". He immediately proceeded at the

railway station along with the police staff. The train

came and platform No.6 at about 12:30 am. He

intercepted one person who was in the attire of Sadhu

sitting on berth No.56 coach No.B1. On enquiring with

him, he disclosed that the green colour bag kept

underneath the berth belongs to him and he is

proceeding to Gwalior. He also disclosed that the said

bag contains contraband "Ganja". He immediately

.....12/-

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submitted report in the police station on which the PSI

Datta Pendke was directed to take further action. His

evidence further shows that the communication was

prepared to forward in the office of SDPO Railway and

requisition was also prepared in the name of PC Patre.

PC Patre carried the said communication to the SDPO

which bears the signature of PSI Datta Pendke, which is

at Exhs.59 and 60. The letter was also issued to the

Tahsildar for making available a gazetted officer. The

said letter is at Exhs.61 and 62. The gazetted officer

was not available in tahsil office. Letter was issued to

the Chief Officer of Zilla Parishad, Nagpur, which was

carried by PW8 Police Constable Ramesh Chaudhari.

The said letter is at Exh.63. The gazetted officer was

made available at about 5:30 pm and accordingly the

entry was taken in the station diary. Thereafter, Police

Constable Ravindra Saoji was directed to bring the

.....13/-

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396 apeal238.23

person for taking the weight by issuing letter Exh.65,

photographer was also called. Letter was also issued to

make available two persons to act as panchas, which is

at Exh.69. After the photographer and panchas along

with gazetted officer made available, they all proceeded

to platform No.6. The accused was in the custody of

RPF Police. On enquiring with him, he disclosed his

name. Notice Under Section 50(1) of the NDPS Act was

given to the accused and it was explained to him and he

declined to give his search before the gazetted officer.

Thereafter, the search of the bag of the accused was

taken in presence of panchas. Two samples of the

contraband were drawn and sealed. Rest of the

contraband was also seized by drawing panchanama.

After drawing of the panchanama, PSI Datta Pendke

lodged report which is at Exh.54. During investigation,

the passenger ticket was seized from the accused which

.....14/-

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is at Exh.71. Letter was issued to the Magistrate for

drawing inventory. The said letter is at Exh.72 and

inventory report is at Exh.37. After completion of the

investigation, the chargesheet was filed against the

accused. PW6 Santosh Nimbhorkar, is cross examined

and during cross examination it came on record that

when the train came at the railway station, he was not

on duty. PSI Bose has not lodged any report. He has

not witnessed where the accused was sitting and where

he was asked to sit after he was taken into custody.

PW5 Vijay Marape, was not aware as to the ticket which

the accused was having before drawing the

panchanama. Rest of the cross examination is in the

denial form. It came on record that the action was

delayed due to non-availability of the gazetted officer

and the panchas.

.....15/-

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396 apeal238.23

18. To corroborate the version of PW6 Santosh

Nimbhorkar, the prosecution has examined

photographer PW1 Bhimrao Gajbhiye who testified that

since 22 years he is working as photographer for railway

police. On 2.2.2017, lady police constable approached

him along with the letter and informed that he is called

for obtaining the photographs. The said letter is at

Exh.35. He immediately rushed to platform Nos.6 and 7

wherein one person in saffron colour attire was sitting

and holding green colour bag. In presence of panchas,

his bag was checked which was having contraband

article "Ganja". The police have drawn the samples,

seized the same and he obtained the photographs and,

therefore, sealed it. The panchanama is at Exh.36. On

7.2.2017, again he was called in the Court of the

Railway Magistrate and in presence of the Magistrate

the seal was opened and sample was drawn and he took

.....16/-

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the photographs. Accordingly, inventory panchanama

was drawn which is Exh.37.

His cross examination shows that twice he visited

the Railway Police Station. He has issued bill to the

investigating officer. He has not produced the said bill

book.

19. PW2 Rupchand Yadav, is the person who acted as

pancha on the spot panchanama. His evidence shows

that he is not acquainted with Marathi language. The

panchanama was written in Marathi and explained to

him in Hindi. On 2.2.2017, he was present in DRM

Office. He was called to act as a pancha vide letter

Exh.41. When he reached at the platform,

photographer, gazetted officer, raiding staff, and one

person with scale and weight were present. In his

presence, the person who was intercepted was

.....17/-

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interrogated who disclosed his name and also disclosed

that in a bag he is carrying the "Ganja". He was

informed about his right to be searched before the

gazetted officer, but he denied for the same. The said

intimation letter is at Exh.42. The bag of the accused

was opened. The contraband was 14.676 kilograms,

out of which 50-50 grams were separated and sealed

and photographs were obtained. Accordingly,

panchanama was drawn. Thereafter, the accused was

arrested. The said arrest panchanama is at Exh.43. His

cross shows that on the day of the incident, he was

serving in RPF Department. His office is situated in

DRM Building. Prior to the incident, he never met PSI

Datta Pendke. He has not taken any entry in the

movement register. He is unable to tell at what time

Vishakhapatnam-Nijamuddin Express came on platform

Nos.6 and 7. He admitted that he has not put date and

.....18/-

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time below his signature. His cross examination further

shows that Exh.42 does not bear the platform number.

He was present in GRP Office, till 7:30 to 8:00 pm. On

platform, CCTV Cameras were installed. The entire

action was recorded in the CCTV Camera. He further

admitted that every train coming from south side and

proceeding to Delhi always comes on platform No.1.

20. PSI PW3 V.S.Bose, testified that he received a

secret information on 1.2.2017 at about 10:00 pm that

one person travelling in train No.12807 is transporting

the contraband "Ganja". He immediately rushed to

platform No.6 where the train halted. He took the

custody of person sitting on berth No.56 in coach

No.B1 and the bag was underneath of the berth and the

accused disclosed that it belongs to him. In presence of

panchas and a gazetted officer, the bag was opened

which was having the contraband "Ganja" of description

.....19/-

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green colour leaves having flowering tops. His cross

shows that he has not taken the entry of the secret

information as no such register is maintained in his

office. His statement was recorded on 2.2.2017. He is

also unable to tell the halt period of the train on the

said station.

21. PW4 Dipti Bende, is the Police Constable, who

received written order to carry muddemal to hand over

it to the forensic laboratory. She has also deposited the

documents given to her. Her cross shows that she has

not taken the entry in the station diary in the order

received by her. Exh.48 is the written directions given

to her. Exh.49 is the form which is to be handed over to

the Dy.Director, Forensic Laboratory, Nagpur. Exh.50 is

the invoice challan.

.....20/-

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22. PW5 Vijay Marape, is the Police Constable. He

has registered offence on the basis of the report filed by

PSI Datta Pendke. He admitted during cross that he was

station diary incharge. Therefore, he has no right to

give any directions to the Police Inspector. FIR is lodged

after 12 hours of the incident. The report is at Exh.54

and FIR in format is at Exh.56; certificate under Section

52-A of the NDPS Act is at Exh.73; CA Report is at

Exh.74, and data sheet of the analysis is at Exh.75.

23. PW7 Kawadu Durge, is examined vide Exh.78,

who testified that he was called by the Dy.Chief

Executive Officer, Zilla Parishad and was directed to act

as pancha. Accordingly, he visited the spot of the

incident at platform Nos.6 and 7. One person was

sitting on the platform holding a green colour bag. On

enquiring, the said person disclosed that the bag

contains contraband "Ganja". The notice was issued to

.....21/-

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him under Section 50(1) of the NDPS Act. On search

of the bag, the contraband "Ganja" was found from

which two samples were drawn. Accordingly, the

panchanama was drawn. His cross examination shows

that he has not enquired as to where the accused was

proceeding on that day.

24. PW8 Police Constable Ramesh Chaudhari, visited

the Zilla Parishad Office for calling two persons to act as

panchas.

25. On the basis of the above said evidence, the

prosecution claimed that the accused was carrying the

contraband article and was transporting the same which

is of about intermediate quantity.

26. It is vehemently submitted by learned counsel for

the accused that there is non-compliance of Sections 42,

50, and 52-A of the NDPS Act.

.....22/-

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396 apeal238.23

As far as compliance of Section 42(a) is

concerned, it reveals from the evidence of PW6 Santosh

Nimbhorkar that PSI PW3 V.S.Bose approached PSI

Datta Pendke and filed a written report as to the

information received by him. The said information was

immediately forwarded to the SDPO on 2.2.2017.

27. Section 42 of the NDPS Act deals with power of

officer of entry, search, seizure, and arrest without

warrant or authorization. Sub-section (2) of Section 42

of the NDPS Act states that where an officer takes down

any information in writing under sub-section (1) or

records grounds for his belief under the proviso thereto,

he shall within seventy-two hours send a copy thereof to

his immediate official superior. The said provision

states about compliance as to the information or

intimation which is to be forwarded to the superior

officer.

.....23/-

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Letter Exh.60 discloses about the said

compliance.

28. It is further submission of learned counsel for the

accused that there is non-compliance of Section 50 of

the NDPS Act.

29. Section 50 of the NDPS Act, deals with conditions

under which search of persons shall be conducted. The

same is reproduced for reference as under:

"50. Conditions under which search of persons shall be conducted.-

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

.....24/-

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(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking .....25/-

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such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

30. The settled position of law is that a person to be

searched under the NDPS Act is required to be told

about his right, before he is searched, under Section 50

of the NDPS Act and that is the mandatory requirement.

31. Section 50 of the NDPS Act would be applicable

in case of personal search of accused and not when it is

in respect of baggages; articles, and vehicles and or

container. In case, where searching officer fails to

.....26/-

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communicate accused, who are subjected to search that

he has a right to search in the presence of the gazetted

officer or magistrate, there would be non-compliance of

requirement of Section 50 of the NDPS Act.

32. In the present case, admittedly, the search was in

respect of the bag. Since the bag was searched and

contraband "Ganja" was seized from the said bag,

compliance under Section 50 of the NDPS Act was not

required. Therefore, submission of learned counsel for

the accused that there was no compliance under Section

50 of the NDPS Act is not sustainable.

33. The another submission of learned counsel for

the accused is that there is no compliance of Section 52-

A of the NDPS Act. He invited my attention towards

inventory panchanama and submitted that inventory

panchanama nowhere bears the signature of the

.....27/-

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Magistrate. The requirement of Section 52-A is that the

work of drawing sample shall be in presence of the

Magistrate. The samples were drawn by the

investigating officer without taking recourse of Sub-

section (2) of Section 52-A of the NDPS Act.

34. In the case of Union of India vs. Mohanlal and

anr, reported in (2016)3 SCC 379, the Hon'ble Apex

Court held, as under:

"It is manifest from Section 52A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in

.....28/-

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the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub- section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and .....29/-

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certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."

35. Here, in the present case, the evidence of PW2

pancha Rupchand Yadav, PW6 Santosh Nimbhorkar, and

PW7 Kawadu Durge nowhere discloses that the samples

were drawn in presence of the Magistrate.

36. Thus, the seizure is not in conformity with the

law laid down by the Hon'ble Apex Court in the case of

Union of India vs. Mohanlal and anr supra.

37. Exh.73 is the certificate issued under Section 52-

A of the NDPS Act. It also nowhere discloses that

samples were drawn in presence of the Magistrate.

.....30/-

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Thus, there is no compliance as to Section 52-A of

the NDPS Act.

38. Learned counsel for the accused placed reliance

on the decision in the case of Mangilal vs. The State of

Madhya Pradesh supra wherein the Hon'ble Apex Court

considered the mandatory provision of Section 52-A of

the NDPS Act and observed that Sub-section (2) of

Section 52-A of the NDPS Act mandates a competent

officer to prepare an inventory of such narcotic drugs

with adequate particulars. This has to be followed

through an appropriate application to the Magistrate

concerned for the purpose of certifying the correctness

of inventory, taking relevant photographs in his

presence and certifying them as true or taking drawal of

samples in his presence with due certification. Such an

application can be filed for anyone of the aforesaid

three purposes. The objective behind this provision is to

.....31/-

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have an element of supervision by the magistrate over

the disposal of seized contraband. Such inventories,

photographs and list of samples drawn with certification

by Magistrates would constitute as a primary evidence.

39. Learned counsel for the accused further placed

reliance on the decision in the case of Gorakh Nath

Prasad vs. State of Bihar supra wherein the Hon'ble

Apex Court held that failure of raiding officer to

produce seized ganja or sample drawn before the court,

mere testimony of police officer itself is not sufficient to

prove seizure. Non- production of seized material, fatal

to the prosecution case and accused entitled to benefit

of doubt.

40. Learned counsel for the accused further relied

upon the decision in the case of Union of India vs.

Jarooparam supra wherein the Hon'ble Apex Court

.....32/-

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also laid down the same principle that failure to

produce bulk quantity of seized opium raises doubts on

genuineness of samples.

41. In the case of Vijay Jain vs. State of Madhya

Pradesh supra the Hon'ble Apex Court held that non-

production of seized material before the trial court is

fatal to the prosecution.

42. Now, core question is, whether the accused was

found in a conscious possession of the contraband

ganja.

43. The Hon'ble Apex Court in the case of Avtar

Singh and ors vs. State of Punjab, reported in (2002)7

SCC 419 observed that "possession" is the core

ingredient to be established before the accused in the

instant case are subjected to the punishment under

Section 15. If the accused are found to be in possession

.....33/-

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of poppy straw which is a narcotic drug within the

meaning of Clause (xiv) of Section 2, it is for them to

account for such possession satisfactorily; if not, the

presumption under Section 54 comes into play. We need

not go into the aspect whether the possession must be

conscious possession. Perhaps taking clue from the

decision of this Court in Inder Sain vs. State of Punjab

(1973 (2) SCC 372) arising under the Opium Act, the

learned trial Judge charged the accused of having

conscious possession of poppy husk. Assuming that

poppy husk comes within the expression poppy straw,

the question, however, remains whether the prosecution

satisfactorily proved the fact that the accused were in

possession of poppy husk. Accepting the evidence of PW

4 the Head constable, it is seen that appellant No.3

(Accused No.4) was driving the vehicle loaded with

bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1

.....34/-

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and 2) were sitting on the bags placed in the truck. As

soon as the vehicle was stopped by ASI (PW 2), one

person sitting in the cabin by the side of the driver and

another person sitting in the back of the truck fled. No

investigation has been directed to ascertain the role

played by each of the accused and the nexus between

the accused and the offending goods. The word

'possession' no doubt has different shades of meaning

and it is quite elastic in its connotation. Possession and

ownership need not always go together but the

minimum requisite element which has to be satisfied is

custody or control over the goods. Can it be said, on the

basis of the evidence available on record, that the three

appellants one of whom was driving the vehicle and

other two sitting on the bags, were having such custody

or control? It is difficult to reach such conclusion

beyond reasonable doubt. It transpires from evidence

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Judgment

396 apeal238.23

that the appellants were not the only occupants of the

vehicle. One of the persons who was sitting in the cabin

and another person sitting at the back of the truck made

themselves scarce after seeing the police and the

prosecution could not establish their identity. It is quite

probable that one of them could be the custodian of

goods whether or not he was the proprietor. The

persons who were merely sitting on the bags, in the

absence of proof of anything more, cannot be presumed

to be in possession of the goods.

44. Thus, expression "possession" is not capable of

precise and completely logical definition of universal

application in context of all the statutes. Once found

probable, the same requires to be accepted. Admittedly,

the offence alleged under the NDPS Act being stringent

provision higher degree of proof is required to convicted

the accused.

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396 apeal238.23

45. As far as the present case is concerned, the

evidence of PW1 photographer Bhimrao Gajbhiye shows

that he has seen the accused at the platform. Thus,

when the accused was firstly intercepted in the train,

except PSI PW3 V.S.Bose, no other witness is examined

to show that it was the accused who carrying the said

bag. The evidence of PW2 pancha Rupchand Yadav and

PW7 Kawadu Durge nowhere states that when the

accused was seen by them was carrying the bag. When

they reached at the platform, the accused was already

brought at the platform. Only PSI PW3 V.S.Bose has

stated that when he entered in the coach No.B1 at berth

No.56, the accused was sitting on the said berth and bag

was underneath of the said berth and the accused

disclosed him that the bag belongs to him. The

evidence of PW6 Santosh Nimbhorkar also shows that

when he along with the raiding party members went at

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Judgment

396 apeal238.23

the Railway Station, the accused was already brought at

the platform.

46. On due consideration of submissions advanced by

learned counsel for the accused and learned Additional

Public Prosecutor for the State, in the light of oral and

documentary evidence on record, the prosecution

neither examined nor cited a single passenger to show

that the accused was travelling by the said train carrying

the said green colour bag. Thus, there is no evidence to

show that the accused was in conscious possession of

the alleged contraband article.

47. The evidence of PSI PW3 V.S.Bose is only to the

extent that the bag was underneath the berth. Merely

because the bag was found underneath the berth,

wherein the accused was sitting, is not sufficient to hold

that he was in conscious possession of the said bag.

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Judgment

396 apeal238.23

48. In order to prove guilt of the accused under

Section 20(b) of the NDPS Act, it is incumbent upon the

prosecution to prove that the accused was found in

conscious possession of the contraband article. The

accused was found travelling in AC Class-III bogie and

other passengers were also traveling in the said bogie.

The railway ticket produced on record shows that the

accused was travelling having seat No.56. There is no

other evidence to show that the accused boarded the

said train with that bag. There is also no evidence to

show that the accused kept the bag below the seat

whereat he was sitting. Only for the reason that the bag

was lying below the seat where he was found to be

sitting itself is not sufficient to establish that the accused

was found in conscious possession of the alleged

contraband article.

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Judgment

396 apeal238.23

49. The term "possession" consists of two elements.

First, it refers to the corpus or the physical control and

the second, it refers to the animus or intent which has

reference to exercise of the said control. The definition

of "possession" given in Black's Law Dictionary is as

follows:

"Possession." Having control over a thing with the intent to have and to exercise such control. The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly

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Judgment

396 apeal238.23

has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint."

50. Section 18 of the NDPS Act has a reference to the

concept of conscious possession. The word "possession"

refers to a mental state which is noticeable from section

35 of NDPS Act. Perusal of the said provision shows it

includes knowledge of fact. Section 35 raises a

presumption as to knowledge and culpable mental state

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Judgment

396 apeal238.23

from the possession of illicit articles. The expression

"possess or possessed" is often used in connection with

statutory offences of being in possession of prohibited

drugs and contraband substances. Conscious or mental

state of possession is necessary and that is the reason

for enacting section 35 of the NDPS Act. Thus, the term

"possession" for the purpose of Section 18 of the NDPS

Act would mean with animus custody or domain over

the prohibited substance. The animus and the mental

intent which is the primary and significant element to

show and establish possession.

51. On considering the over all testimony of the

prosecution witnesses, there is no cogent and

convincing evidence to establish that the bag was

belonging to the accused and the accused was found in

possession of the contraband article. The prosecution

has not proved that the bag found lying below the seat

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Judgment

396 apeal238.23

and was belonging to the accused as no witness has

examined to disclose that the accused was seen carrying

the bag and keeping the same below his seat after

boarding the train. The other passengers were also

traveling by the said train. In the facts and

circumstances of the case, the possibility of keeping the

said bag by someone else cannot be ruled out. Except

PSI PW3 V.S.Bose, no witness is examined by the

prosecution to show that the accused was sitting in AC

Class-III on seat No.56. Even, if the evidence of PSI

PW3 V.S.Bose is accepted, it shows that the bag was

kept below the seat. In the above circumstances, the

independent corroboration was required which is absent

in the present case.

52. In the light of the above discussion, the judgment

and order of conviction and sentence impugned in the

appeal deserves to be quashed and set aside as the

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Judgment

396 apeal238.23

prosecution has failed to establish the compliance under

Section 52-A of the NDPS Act so also the conscious

possession of the accused over the said bag. Therefore,

the conviction is not sustainable and the accused is

entitled for benefit of doubt. In this view of the matter,

I proceed to pass following order:

ORDER

(1) The Criminal Appeal is allowed.

(2) The judgment and order dated 17.3.2023 passed by

learned Special Judge (NDPS Court), Nagpur in NDPS

Special Case No.24/2017 is hereby quashed and set

aside.

(3) The accused is hereby acquitted of the offence under

Section 20(b) of the Narcotic Drugs and Psychotropic

Substances Act and he be set at liberty forthwith, if not

required in any other case.

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Judgment

396 apeal238.23

(4) The fine amount, if any, be refunded to the accused.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 24/04/2025 11:07:34