Suren Mandal S/O Rakshik Mandal vs The State (Govt. Of Nct) Delhi
2009 Latest Caselaw 453 Del

*                HIGH COURT OF DELHI : NEW DELHI

              Judgment reserved on : February 02, 2009
              Judgment delivered on : February 09, 2009

+                        Crl. A. No. 926/2006

%      Suren Mandal S/o Rakshik Mandal...       Appellant

                             Through:    Mr. P.R. Thakur, Advocate

                                versus

       The State (Govt. of NCT) Delhi          ...  Respondent
                             Through:    Mr. Amit Sharma, Additional
                                         Public Prosecutor for State

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

SUNIL GAUR, J.

1. In this appeal, challenge is to impugned judgment/order of 20th

and 25th July 2002 of the learned Special Judge, (under the Narcotic

Drugs and Psychotropic Substances Act, 1985) Delhi, who has

convicted the Appellant for the offence of illegal possession of

137Kgs. of ganja, which is punishable under Section 20 of The

Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter

Crl. A. No. 926/2006 Page 1 referred to as NDPS Act) and sentenced him to undergo

imprisonment for a period of ten years alongwith a fine of

Rs.1,00,000/- (Rupees one lac only), and in default of payment of

fine, he has been sentenced to undergo rigorous imprisonment for

one year.

2. Prosecution version, emerging from the record of this case, is

that on 26.10.2002, at about 5.50 PM an informer informed Inspector

S.P. Kaushik that two persons are engaged in the sale of ganja and

are present with huge quantity of ganja outside New Delhi Railway

Station at Ajmeri Gate side, and this information was recorded in DD

No.18, (Ex.PW-5/A) at 6:00 PM, by SI Kuldeep Singh and its copy

was forwarded to ACP Narcotic Branch. After obtaining order from

Shri R.P. Sharma, ACP, Narcotic Branch, raiding team was formed

which consisted of SI Kuldeep Singh, HC Kuldeep Singh, Constable

Dilawar Singh and Constable Girish, and it was headed by Inspector

S.P. Kaushik, and they reached outside exit gate of New Delhi

Railway Station at 6.25 PM. Appellant/accused was found sitting on

three big bags on the pavement, near MCD Jansuvidha Complex,

opposite to the exit gate of New Delhi Railway Station and his co-

accused Siya Ram Mehto, was also found sitting on another set of

three bags, lying there.

Crl. A. No. 926/2006 Page 2

3. As per the version of the prosecution, Inspector S.P. Kaushik,

PW-5, made an effort to make the public persons join the raiding

party but none agreed.

4. Appellant/accused was given an option of being searched by a

Gazetted Officer or by themselves, but he refused to avail of the

option given by the raiding team vide Notice under Section 50 of

NDPS Act (Ex. PW-2/B). SI Kuldeep Singh recorded aforesaid

refusal/replies of appellant/accused as well as of his co-accused.

Public persons were asked to join the search proceedings, but

nobody agreed. Personal search of appellant/accused was conducted

by SI Kuldeep Singh but nothing incriminating was recovered from his

personal search, but from the bags on which he was sitting, upon

opening them, it was found containing ganja therein. Likewise,

personal search of co-accused Siya Ram was also conducted and

nothing incriminating was recovered but three bags on which he was

sitting, were found containing ganja. Two samples of 500 grams

ganja from each bag were taken out. FSL Form was filled in.

Recovered bags and samples were sealed with the seal of SI

Kuldeep Singh, i.e., 2A PS NB Delhi and the same was also affixed

on the FSL form. Spot proceedings were completed. FIR No.83/02

was registered. Appellant/accused was arrested. After completing

the investigation, the charge-sheet was filed in the court against the

Crl. A. No. 926/2006 Page 3 appellant/accused for commission of the offence under Section 20 of

NDPS Act.

5. Trial commenced, as appellant/accused did not plead guilty to

the charges framed against him under the aforesaid provisions of law.

Each and every incriminating evidence appearing against

appellant/accused was put to him, which he denied and pleaded false

implication. Appellant and his co-accused got examined four

witnesses in their defence, i.e., DW-1 - Subodh Mandal; DW-2 -

Smt. Anjana wife of Appellant/accused; DW-3 - Smt. Sonia Devi, wife

of co-accused Siya Ram Mandal and DW-4 - Naval Kishore

regarding the Appellant and his co-accused being picked up at 8.30

AM on the day of the incident from Adarsh Nagar Chowk, Delhi, and

of being falsely implicated in this case.

6. At trial, prosecution had got examined eleven witnesses, out of

which HC Roshan Lal (PW-4) had proved the FIR Ex. PW-4/A; HC

Gyan Prakash, MHC/M (PW-1) had proved relevant entries dated

26.10.02 in the Malkhana register No.19 regarding deposit of the

case property and FSL form and jamatalasi articles of the accused

persons Ex.PW-1/A. He further deposed that on 1.11.02 samples

duly sealed with the seals of 2APSNB Delhi and 1SHONBR Delhi

were sent to FSL, Malviya Nagar through Ct. Vinod vide RC

No.105/21 and entry to this effect is Ex.PW-1/C; Constable Virender Crl. A. No. 926/2006 Page 4 (PW-7) had deposed that on 31.10.02, he took parcels for depositing

the same at FSL Office, Malviya Nagar; Constable Vinod (PW-9)

deposed that he had deposited the parcels at FSL Office, Malviya

Nagar on 1.11.2002; HC Ved Prakash (PW-6), SO to DCP/Narcotics

had proved the special reports under section 57 of NDPS Act Ex.PW-

6/A and PW-6/B of the IOs namely SI Kuldeep Singh and SI Attar

Singh. Dr. Madhulika Sharma (PW-11) had deposed regarding arrest

of the accused persons and the disclosure statements of

appellant/accused Suren Mandal and his co-accused Siya Ram

Mehto as Ex.PW-2/E and Ex.PW-2/H respectively. HC Kuldeep

Singh, (PW-2); Constable Girish, (PW-8); SI Kuldeep Singh (PW-10)

and Inspector S.P. Kaushik (PW-5) deposed about the raid

proceedings.

7. After the trial, Appellant/accused has been convicted and

sentenced as indicated above.

8. Counsel for the parties, were heard and the record of this case

has been perused.

9. Learned counsel for appellant has assailed the conviction of the

Appellant/accused solely on the ground that the prosecution has

failed to prove that Appellant was in conscious possession of the

recovered narcotic substance and he relies upon the decisions

Crl. A. No. 926/2006 Page 5 reported in 2002 SCC (Cri) 1769; 2004 SCC (Cri) 838; 2003 (3) JCC

1513; 2006 (1) RCR (Cri) 4; 2005 (1) RCR (Cri) 70; and 2009 (1)

RCR (Cri) 310 to contend that merely because the accused is found

sitting on the bags, containing the narcotic substance, it cannot be

presumed that he was in possession of the said substance. It has

been pointed out that it has not been put to the Appellant/accused in

his statement under Section 313 Cr. P.C. that the Appellant/accused

was in 'conscious possession' of the recovered narcotic substance

and therefore, the impugned judgment convicting the

Appellant/accused is rendered illegal and Appellant deserves to be

acquitted. Nothing else is urged on behalf of the Appellant/accused.

10. Learned Additional Public Prosecutor for the State submits that

the stand taken by the Appellant/accused in his statement under

Section 313 Cr. P.C. is of the ganja being recovered from somebody

else and of planting it upon the Appellant. It is pointed out that it was

put to the Appellant in his statement under Section 313 Cr. P.C. that

there was secret information of Appellant possessing ganja and for

that purpose the search of the bags, on which the Appellant was

sitting was to be taken and an offer was given to the Appellant to get

the search conducted in the presence of the Gazetted Officer or

Magistrate, but the Appellant had declined. Thus, it is submitted that

there was no requirement of specifically putting to the

Crl. A. No. 926/2006 Page 6 Appellant/accused that he was in conscious possession of the ganja,

which was recovered from the bags on which the Appellant was

sitting. It is pointed out that the cases cited on behalf of the Appellant

pertain to the recovery of poppy husk etc. and none of those cases

were of prior secret information and were of chance recovery while on

patrolling and therefore, the aforesaid decisions are distinguishable

on facts and the conviction and sentence imposed upon the Appellant

is perfectly legal and justified in this case.

11. The concept of 'conscious possession' has been dealt with by

the Apex Court in a greater detail in the case of 'Megh Singh vs.

State of Punjab' 2003 (3) JCC 1513, by holding that once possession

is established, the person who claims that he was not in a 'conscious

possession', has to establish it because how he came to be in

possession, is within his special knowledge. Section 35 of the NDPS

Act gives a statutory recognition of this position because of

presumption available in law. Similar is the position in terms of

Section 54 of the NDPS Act, where also presumption is available to

be drawn from the possession of illicit articles.

12. In the aforesaid decision, it has been highlighted by the Apex

Court that in criminal law, there are no precedents and the apt

observations made read as under:-

Crl. A. No. 926/2006 Page 7 "Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based."

13. It is true that in a case of chance recovery, the question of

'conscious possession', would definitely be of prime importance.

Present case is of prior secret information and therefore, the

decisions cited by learned counsel for appellant of 'chance recovery'

would not be of any help. There was no occasion for framing of

specific question of Appellant being in 'conscious possession' of the

recovered ganja, as the factum of prior secret information was

already disclosed to the Appellant and despite opportunity to conduct

the search of the bags on which he was sitting, in the presence of

Gazetted Officer being given to the Appellant. The stand taken by the

Appellant is of mere denial, which cannot be accepted on the face of

it, in the facts of this case. In fact, Appellant was found sitting on the

bags, which were lying not outside the exit gate of New Delhi Railway

Station, but were lying on the pavement outside MCD Jan Suvidha

Complex, which was, of course, opposite to the exit gate of New

Delhi Railway Station.

14. It has been neither suggested to the prosecution witnesses nor

it is the stand of the Appellant in his statement under Section 313 Cr.

Crl. A. No. 926/2006 Page 8 P.C. that Appellant was not aware of the contents of the bags on

which he was sitting. In fact, the stand of the Appellant has been that

the aforesaid recovery of 137 Kgs of ganja has been planted upon

the Appellant. It has not been shown as to why such a heavy

recovery would be planted upon the Appellant. It is not the case of

the Appellant that the raiding team had any animus against the

Appellant, who does not explain his presence at the spot. He takes

no plea of alibi.

15. It is pertinent to take note of the question No.10, which was put

by the trial court to the Appellant in his statement under Section 313

Cr. P.C. and it reads as follows:-

"Q10. It is further in evidence against you that PW5 SHO S.P. Kaushik told to you the secret information that they have an information that you indulge in selling of ganja in Delhi and at this time also ganja can be recovered from your possession for which search your gunny bags is to be taken by the police; that you were also apprised of your legal rights that if you so desire, you could be produced in front of a Gazetted Officer or a Magistrate and you can take search of the police party prior to your search. What have you to say?

Ans. It is incorrect."

16. Had it been the case of Appellant sitting on the bags (from

which ganja was recovered), while waiting for the bus or somebody,

then in normal course, he would have stated so while answering any

Crl. A. No. 926/2006 Page 9 of the questions put to him under Section 313 of the Cr. P.C. Instead

of taking any such plea, the stand taken by the Appellant in his

statement under Section 313 Cr. P.C. is of recovery of 137 Kgs. of

ganja from somebody else and of being planted upon the Appellant.

As already noted above, the plea of the Appellant of planting such a

heavy recovery upon him is totally unacceptable.

17. It is pertinent to note that the recovery of 137 kgs. of ganja from

the bags on which the Appellant was sitting stands firmly proved from

evidence on record and therefore, burden shifts upon the Appellant to

explain. The explanation offered by the Appellant is hardly acceptable

and the plea of his not being aware as to what was contained in the

bags, on which he was sitting is neither taken nor is available to him,

as the present case is not of chance recovery nor of presence of the

Appellant at the spot being by chance. I am of the considered

opinion that the necessity of framing a specific question of 'conscious

possession' would not arise in this case as the present case is of

prior secret information, which was already disclosed to the

Appellant/accused.

18. In the ultimate analysis, it is found that the conviction and the

sentence imposed upon the Appellant suffers from no illegality or

infirmity and is perfectly justified in the face of the evidence on record.

Crl. A. No. 926/2006 Page 10

19. There is no merit in this appeal, which deserves to be

dismissed. It is ordered accordingly.

SUNIL GAUR, J.

February 09, 2009
pkb




Crl. A. No. 926/2006                                   Page 11