Dhansai vs State Of Chhattisgarh
2022 Latest Caselaw 3200 Chatt

                                  1

                                                                        AFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                Criminal Appeal No.501 of 2014

                Judgment reserved on:1.4.2022

                Judgment delivered on:4.5.2022

    Dhansai S/o Saharam Patel, aged about 41 years, R/o
    Tundra, Police Staton Bilaigarh, District Raipur, at
    present R/o Awaspara, Seepat, District Bilaspur (CG)

                                                       ­­­­ Appellant
                                                           (In Jail)
                                Versus

    State of Chhattisgarh Through Station House officer,
    Police Station Seepat, District Bilaspur (CG)
                                                      ­­­­ Respondent

For Appellant:             Mr.Shailendra Dubey, Advocate
For Respondent/State:      Mr.Sudeep Verma, Dy.G.A.


         Hon'ble Shri Justice Sanjay K. Agrawal and
              Hon'ble Smt. Justice Rajani Dubey

                          C.A.V. Judgment

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of the CrPC

is directed against the impugned judgment dated

21.2.2014 passed by the Special Judge (N.D.P.S.)

Bilaspur in Special Case No.32/2011 by which the

appellant has been convicted under Section 20(b)(ii)(C)

of the Narcotic Drugs and Psychotropic Substances Act,

1985 (hereinafter called as 'NDPS Act') and sentenced

him undergo rigorous imprisonment for 15 years and fine

of Rs.2,00,000/­, in default of payment of fine to

further undergo rigorous imprisonment for 2 years.

2. Case of the prosecution, in brief, is that on 3.8.2011

the appellant was found in possession of 96.600 kg of

ganja unauthorizedly amounting to Rs.4 lacks for sale

and thereby committed the offence. It is further case

of the prosecution that on 3.8.2011 Rajendra Singh

Parihar (PW­11), Station House Officer, Police Station

Seepat received secret information from informant that

the appellant herein has illegally kept ganja in hut

situated at Seepat Awas Mohalla near canal. On receipt

of such information, Rajendra Singh Parihar entered

that secret information into Rojnamacha Sanha at Serial

No.125 and sent notices to call for independent

witnesses for preparing mukhbir suchna panchnama of the

Police Station (Ex.P­30C) and on the same day at 11.50

o'clock Kirti Kumar (PW­1) and Shiv Kumar (PW­9) were

present and in their presence mukhbir suchna panchanama

(Ex.P­24) was prepared and that was also entered into

Rojnamacha Sanha of Police Station (Ex.P­31C) and

thereafter inspector Isidor Khalko (PW­2) was directed

to give secret information to the superior officer and

the said officer with two sets of Exs.P­24 and P­25

proceeded towards the office of the Sub­Divisional

Officer (Police), Bilaspur and later on, delivered the

written information to the reader of SDOP, Bilaspur and

received acknowledgement of the same. All these

proceedings were also entered into Rojnamacha Sanha of

the Police Station (Ex.P­32C). It is also the case of

the prosecution that investigating officer Rajendra

Singh Parihar (PW­11) proceeded towards spot along with

staff members and witnesses, he informed the

accused/appellant herein about his right to be searched

by Gazetted Officer under Section 50 of the NDPS Act

vide Ex.P­5 and consent of the accused was also

recorded and thereafter hut was searched and

psychotropic substance (later identified as Ganja) was

recovered from hut, which were kept in 5 bags and one

electronic weighing scale was also found. Search

panchnama was prepared vide Ex.P­10 and recovery

panchnama was also prepared vide Ex.P­11. After

physical verification, it was found that the recovered

substance was ganja. Identification panchanama of the

substance i.e. ganja was prepared vide Ex.P­12.

Following the provisions of law, ganja was weighed and

weighed panchnama was prepared vide Ex.P­16 and total

96.600 kg. of ganja was recovered. Prior to that,

verification panchnama of scale and weight used for the

purpose of weighing the recovered ganja was also

prepared vide Ex.P­15. Samras panchnama (Ex.P­13) by

taking 2­2 samples of 50­50 grams from each bag of the

seized ganja was prepared separately. On the same date

at the same place, recovered and seized ganja along

with other seized articles have been sealed by using

the seal bearing refection of 'Police Station Seepat'

in English and sample seal panchnama was also drawn as

Ex.P­17. Seizure memo of seized article has been

prepared vide Ex.P­20 and thereafter accused Dhansai

was arrested vide Ex.P­23. Thereafter statements of

independent witnesses Kirti Kumar (PW­1) and Shiv Kumar

(PW­29) were recorded as Exs.P­1 and P­29 and FIR was

registered against the appellant herein vide Ex.P­36.

Seized ganja and its sample were kept in malkhana of

Police Station Seepat and entry has been made in this

regard into japt mal register of Police Station Seepat

vide Ex.P­48. Action taken report was prepared vide

Ex.P­38 and sent to the Superintendent of Police,

Bilaspur. Samples of seized ganja were sent to Forensic

Science Laboratory vide Ex.P­42 and receipt of the same

is Ex.P­44, in which seized substance was found to be

ganja. After completion of investigation, charge­sheet

was filed against the accused person before the Special

Judge under NDPS Act. The appellants abjured the guilt

and entered into defence.

3. In order to bring home the offence, the prosecution

examined as many as 11 witnesses and exhibited 48

documents Exs.P­1 to P­48 in support of case of the

prosecution. The appellant has examined Baharan Lal

(DW­1), Sunil Kumar Bharti (DW­2) and Neera Laxmi Patel

(DW­3) in his defence and exhibited documents 7

documents Exs.D­1 to 7 in his support.

4. The trial Court upon appreciation of oral and

documentary evidence available on record, by its

judgment dated 21.2.2014, convicted the appellant for

offence under Section 20(b)(ii)(C) of the NDPS Act and

sentenced him as mentioned hereinabove in opening

paragraph of this judgment, against which, this

criminal appeal has been preferred.

5. Mr.Shailendra Dubey, learned counsel appearing for the

appellant, would submit that the prosecution has failed

to prove the essential ingredients of the offence that

the appellant was in possession of hut from where ganja

is said to have been recovered. He would further submit

that the appellant had not taken hut on rent and hut

has been constructed in Government land which is said

to have been purchased by Sukhdeo Prasad. Sukhdeo

Prasad has been examined as PW­5, in which he has

clearly stated in his cross­examination that at the

instance of police has has made statement vide Ex.P­27

and he has not supported the case of the prosecution.

He has also stated that the appellant has never given

any rent against that hut and Ex.P­27 has been prepared

at the instance of police official and as such, it has

duly been established that hut from where ganja was

seized was never in possession of the appellant herein.

However, prosecution witnesses patwari S.R.Jayaswal

(PW­4), Sukhdeo Prasad (PW­5) and Rajendra Kumar

Parihar (PW­11) have clearly stated that hut from where

alleged ganja was recovered was never in possession of

the appellant herein and he has falsely been

implicated. He would further submit that vide Ex.P­26

the hut in question was found in dilapidated condition,

as such, the prosecution has failed to prove the

offence beyond reasonable doubt. Even otherwise,

mandatory provisions contained in Sections 42, 52A and

55 of the NDPS Act have not been complied with by the

prosecution, as such, the impugned judgment deserves to

be set aside and the appellant be acquitted of all the

charges.

6. On the other hand, Mr.Sudeep Verma, learned Deputy

Government Advocate appearing for the respondent/State,

would support the impugned judgment and submit that the

prosecution has proved its case beyond reasonable doubt

and possession of the appellant over hut from where

ganja has been seized is also proved and as such, the

appeal deserves to be dismissed.

7. We have heard the learned appearing for the parties,

considered their rival submissions made herein­above

and also went through the records with utmost

circumspection.

8. Section 20 of the NDPS Act provides that whoever in

contravention of any provisions of this Act or any rule

made thereunder possesses cannabis shall be punished in

accordance with the said provisions. Section 20(b) uses

the word "possesses".

9. 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. One of the

definitions 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. Oswald v. Weigel1. 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 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."

In the said Dictionary, the term "possess" in the

context of narcotic drug law means:­

"Term 'possess', under narcotic drug laws, means actual control, care and management of the drug. Collini v. State2. Defendant 'possesses' controlled substance when defendant knows of substance's presence, substance is immediately accessible, and defendant exercises 'dominion or control' over substance. State v. Hornaday3."

And again:

Criminal law.­Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, United States v. Craig4; as well as joint or exclusive, Garvey v.

State5. The defendants must have had dominion and

1 219 Kan 616 : 549 P 2d 568 at p. 569 (1976) 2 487 SW 2d 132 at p. 135 (Tex Cr App 1972) 3 105 Wash 2d 120 : 713 P 2d 71 at p. 74 (Wash 1986) 4 522 F 2d 29 at p. 31 (6th Cir 1975) 5 176 Ga App 268 : 335 SE 2d 640 at p. 647 (1985)

control over the contraband with knowledge of its presence and character. United States v. Morando­ Alvarez6.

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 v. State7.

Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. United States v. Ellison8.

To constitute 'possession' of a concealable weapon under statue 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 ."

10. In Stroud's Dictionary, the term "possession" has been

defined as follows:

"'Possession' [Drugs (Prevention of Misuse) Act 1964 (c. 64), S.1 (1)]. A person does not lose "possession" of an article which is mislaid or thought erroneously to have been destroyed or disposed of, if, in fact, it remains in his care and control (R. v. Buswell10).

12. The Supreme Court in the matter of Mohan Lal v. State

of Rajasthan11 with reference to Section 18 of the NDPS

Act, which is punishable for contravention in relation

to opium poppy and opium, considered the meaning of

word "possesses" and relying upon its earlier decisions

held as under:­

"21. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with

6 520 F 2d 882 at p. 884 (9th Cir 1975) 7 48 Ala App 523 : 266 So 2d 328 at p. 333 (1972) 8 469 F 2d 413 at p. 415 (9th Cir 1972) 9 12 Or App 496 : 507 P 2d 837 at p. 837 (1973) 10 (1972) 1 WLR 64 : (1972) 1 All ER 75 (CA) 11 (2015) 6 SCC 222

animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others.

22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the appellant­accused was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested 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 NDPS Act coming into force 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 appellant­accused 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."

13. The principle of law laid down in Mohan Lal (supra) has

further been followed by the Supreme Court in the

matter of Union of India through Narcotics Control

Bureau, Lucknow v. Md. Nawaz Khan12 and it has been held

as under:­

"26. What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab13, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan (supra), this Court also observed that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge."

14. After having considered the meaning of "possesses", it

would be appropriate to notice the evidence available

on record to find out whether the learned Special Judge

was justified in holding that the accused was found in

possession of 96.600 kg. of ganja from his house. It is

the case of the prosecution that the appellant had kept

the aforesaid ganja in the premises in question of

which he was tenant.

15. In order to prove the said fact that the appellant was

tenant, rent certificate (Ex.P­27) has been produced,

12 (2021) 10 SCC 100 13 (2010) 9 SCC 608

which is said to have been proved by Sukhdev Prasad.

Sukhdev Prasad has been examined as PW­5. Sukhdev

Prasad has stated in his statement before the Court

that hut in question was constructed by his father,

which remained unoccupied for 5­6 months and thereafter

it was given on rent of Rs.300/­ to Dhansai / appellant

herein. He has marked rent certificate as Ex.P­27, but

in para­4 of his cross­examination, he has stated that

in Ex.P­27 he has signed at the instance of police

personnels and he had signed in blank paper. Sukhdev

Prasad (PW­5) has also refused to identify the

appellant herein in para­4 of his statement. Similarly,

in para­7, he has clearly stated that the appellant has

not given any rent to him as tenant against the hut in

question from where the alleged ganja was seized and

further stated that the hut in question is dilapidated

condition having no doors and situated in one kilometer

from his village. He has also accepted the suggestion

that the hut was lying abandoned and any person can

come and keep his luggage in the said premises/hut. As

such, he has neither supported the case of the

prosecution that any point of time he had inducted the

appellant as tenant nor the appellant at any point of

time had given rent of the said house to him and

further that the said accommodation from where ganja

was seized was lying abandoned. Furthermore, Rajendra

Singh Parihar (PW­11), who is investigating officer, in

para­26 has stated that when he reached to the spot the

appellant was standing outside the hut and further

stated in para­27 that the hut in question was in

lonely place and he was informed by the villagers that

for a fairly long time it was lying vacant and in

dilapidated condition and it was closed only with

wooden plank.

16. From the statements of Sukhdev Prasad (PW­5) and

investigating officer Rajendra Singh Parihar (PW­11),

two facts are established that firstly, the subject hut

was constructed in Government land and hut was

constructed by Manohar Prasad, father of Sukhdev Prasad

(PW­5) and the appellant was not tenant of the

premises/hut in question from where ganja was seized

and secondly, it was secluded place and was lying

vacant for a fairly long time having no doors and it

was open for any person to put any objectionable

material on the said premises. It was not in

actual/conscious possession of the appellant.

17. The Supreme Court in the matter of Ram Rattan v. State

of Punjab14 with reference to Section 9(a) of the Opium

Act, 1878 has held that conscious possession of opium

with the accused has to be proved and furthermore that

the accused was tenant has also to be established.

While failure to do so, their Lordships of the Supreme

Court set aside the conviction and acquitted the

appellant therein. It was observed as under:­

"2. A raid was conducted on the premises 14 (1979) 4 SCC 344

bearing No. F 16, Sarafa Nagar, Ludhiana. The prosecution case is that six packets containing 48½ kilograms of opium were recovered from the store­room of the house. The recovery made in the raid is not challenged. What was argued on behalf of the appellant and reiterated before us was that the prosecution has not proved that the appellant was in conscious possession of the opium recovered from the house. The raid was conducted when the appellant was not there in the house. The only person present than was Janardhan Shankar, PW 1. According to his evidence, the appellant had gone to Vaishno Devi five or six days before the raid and he was not present in the house when the recovery was made. According to his evidence, the appellant was the tenant of the house. But other witnesses did not support him on this point. According to the evidence of the landlord PW 6 the appellant was not the tenant. PW 6 was allowed to be cross examined by the State counsel, as, apparently there was some contradiction in his testimony before the Court and his statement before the police. Even so his evidence in Court, as it is, does not support the prosecution allegation that the appellant was a tenant of the house. On the other hand, according to PW 6, the house at the time of its construction was let out by his servant Som Nath to a tenant. Som Nath was examined as DW 2. According to his evidence, the house was let out to one Bawa Ram. This Bawa Ram is the uncle of the appellant. There are some materials in the records of this case to cause suspicion against the appellant that probably he was aware of the nefarions activities which were going on in this house by storing such huge quantity of opium. But then on mere suspicion no conviction could be maintained. There is nothing to indicate that the quantity of opium recovered from the house was in the conscious possession of the appellant or that even the house was in his possession as a tenant. As we have already stated, the opium was recovered when the appellant was not present even in the vicinity of the house muchless in the house itself. We are, therefore, of the opinion that the High Court committed an error of law in maintaining the conviction of the appellant. He deserves to be acquitted. We, accordingly, allow the appeal, set aside his conviction and sentence. He is discharged from the bail bonds. Fine if paid may be refunded."

18. Reverting to the facts of the present case, in light of

principle of law laid down by the Supreme Court in

Mohan Lal (supra) and Ram Rattan (supra), it is quite

vivid that though the case of the prosecution is that

the appellant was tenant of the hut in question and

Sukhdev Prasad (owner/landlord) has been examined by

the prosecution as prosecution witness (PW­5), but he

has clearly stated that he / his father has constructed

hut on Government land after encroaching the said land

and further said that Dhansai / appellant herein has

never paid any rent to him against the hut in question

and he has further failed to identify the appellant

herein and the prosecution has failed to prove rent

certificate (Ex.P­27) as the said certificate was

signed by Sukhdev Prasad (PW­5) at the instance of

police personnels on their pressure that too on blank

paper. As such, the appellant was tenant of the hut in

question by the prosecution from where ganja was seized

is not established by the prosecution. Furthermore, the

fact that the hut in question from where ganja was

seized was located outside the village Seepat and was

lying abandoned and vacant for a fairly long time as

stated by Sukhdev Prasad (PW­5) and investigating

officer Rajendra Singh Parihar (PW­11) and it was

having no doors and only it was closed by wooden plank.

As such, it cannot be held that ganja seized was in

conscious possession of the appellant herein.

19. Accordingly, we are of the considered opinion that

there is nothing to indicate that quantity of ganja

recovered from the house/hut in question was in

conscious possession of the appellant herein or the

house was in possession of the appellant as a tenant.

As such, the prosecution has failed to establish that

the appellant was tenant of the premises/hut from where

ganja was recovered and further failed to prove that

ganja recovered was in conscious possession of the

appellant herein and the accused/appellant is entitled

for acquittal on the principle of benefit of doubt.

20. For the foregoing reasons, the criminal appeal is

allowed and the impugned judgment dated 21.2.2014

passed by the Special Judge (NDPS Act), Bilaspur in

Special Case No.32/2011 is set­aside. The appellant is

acquitted of the charge under Section 20(b)(2)(C) of

the NDPS Act. He is in jail. He be released forthwith,

if not required in any other case.

                      Sd/­                                               Sd/­

           (Sanjay K. Agrawal)                                      (Rajani Dubey)
                Judge                                                   Judge
B/­

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.501 of 2014

Appellant Dhansai

Versus

Respondent State of Chhattisgarh

(Head­note)

(English)

For conviction under Section Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the accused must be in conscious possession of psychotropic substance (ganja).

(fgUnh)

Lokid vkS"kf/k vkSj eu% izHkkoh inkFkZ vf/kfu;e] 1985 dh /kkjk 20 ([k)

(ii) (b) ds rgr~ nks"kfl)h gsrq eu% izHkkoh inkFkZ (xkatk) vkjksih ds lpsr dCts esa gksuk vko';d gSA