Narcotic Control Bureau vs Ali Mohd.
2009 Latest Caselaw 522 Del

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI

+                     Crl. Rev. (P). 27/2004

                           Date of decision: February 13, 2009


#     NARCOTIC CONTROL BUREAU         ..... Petitioner
!             Through : Mr. Rajesh Manchanda, Adv.


                              Versus


$     ALI MOHD.                            ..... Respondent
^                     Through : Mr. Sidharth Luthra, Sr. Adv.
                                with Ms. Smriti Sinha, Adv.
                                Ms. Arundhai Katju, Adv.
                                Mr. Aditya Singla, Adv.

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?            Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                   Yes

                           JUDGMENT

ARUNA SURESH, J.

1. On receipt of secret information on 30.5.1993 C.B.

Singh, Superintendent, Narcotics Control Bureau

that one Kashmiri, Mohd. Amin had brought with

him 20 to 25 Kg. of hashish from Anantnag,

Kashmir, concealed in a bag few days back and the

drugs were lying at A-46, Gali no. 4, Bhagirathi

Vihar, Delhi with or without the knowledge of the

house owner Ali Mohd., respondent.

2. Information was reduced to writing by C.B. Singh

who issued search warrants for the search of the

said premises. A raiding party was formed and in

the presence of two independent witnesses premise

no. A-46 Bhagirathi Vihar was searched. Ali Mohd.

opened the door and accused Mohd. Amin was also

present there. After complying with requisite

formalities, premise was searched and a blue

coloured air zipper bag marked "Reebok" was

found lying in the room on the left side of the main

door. The bag was opened and was found to

contain 13 packets wrapped with brown adhesive

tape and on opening the packets dark brown

coloured solid substance in different shapes was

recovered. This substance was tested by the NCB

officers on the spot with field testing kit and was

found to give positive test for hashish which is a

banned substance under the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter

referred to as NDPS Act).

3. Persons of Mohd. Amin and respondent were

searched and nothing incriminating was recovered

from them. Upon completion of the search

panchnama was prepared with required formalities

and the Investigating officer submitted his report

of search dated 30.5.2003 and summons under

Section 67 NDPS Act were served on the Mohd.

Amin and respondent for appearance on

31.05.2003. However, both Mohd. Amin and

respondent gave their voluntary statement as they

did not know reading and writing and the same was

recorded. Another summons dated 1.6.2003 were

issued to both of them and in response they gave

voluntary statements which were duly recorded by

the investigating officer.

4. Upon recovery and seizure of 25 kg. of hashish

from the premises A-26 Baghirathi Vihar and on

the basis of voluntary statements, Mohd. Amin and

respondent were arrested under sections 20 (b)

(ii)(C) & 29 of the NDPS Act on 1.6.2003.

5. The accused persons were presented before the

trial court for framing charges and on 19.9.2003

after hearing arguments on charge the trial court

discharged the respondent Ali Mohd observing that

he was not found in conscious possession of the

contraband articles.

6. Present revision petition has been filed by the

Narcotics Control Bureau (hereinafter referred as

NCB) against the discharge order dated 19.9.2003

passed by Ms. R. Kiran Nath, Special Judge, NDPS.

7. Mr. Rajesh Manchanda, counsel for the petitioner

has urged respondent was found to be in

possession of the premises where from 25 kgs. of

hashish was recovered and the recovered

contraband article was of huge quantity. Also

accused Mohd. Amin had in his statement dated

31.5.2003 stated that respondent was to get Rs.

10,000/- as commission out of the deal of 25 kg. of

hashish, therefore, the respondent was in

conscious possession of the contraband article.

8. It is further submitted by the counsel for the

petitioner that the trial court did not apply its

judicious mind while discharging the accused since

the charge can be framed even on grave suspicion.

Therefore, at the stage of framing of charges the

respondent could not have been discharged by the

trial court. He referred to Union of India v.

Prafulla Kumar Samal and Anr. - 1979 SCC

(Cri) 609 and Om Wati v. State - AIR 2001 SC

1507.

9. Mr. Sidharth Luthra, learned senior counsel for the

respondent has submitted that the impugned order

was passed with due application of mind and there

is no fallacy in the order, further that it could not

be prima facie made out by the prosecution during

the arguments on charge that respondent Ali

Mohd. was in conscious possession of the

contraband articles. He has relied upon Om

Prakash v. The State -1989 Crl.L.J. 1207 (del)

and Sahibe Alam v. State - 2002 (2) JCC 766.

10. The relevant facts which are not in dispute are:

i. Respondent Ali Mohd. was a tenant in House

No. A-46, Gali No. 4, Bhagirathi Vihar.

ii. Accused Mohd. Amin was known to the

respondent prior to the date of the incident.

iii. Accused Mohd. Amin had allegedly brought

hashish packed in 13 packets and kept it in

blue coloured air zipper bag marked „Reebok‟.

iv. Accused Mohd. Amin had kept this bag in the

above said premises belonging to respondent

Ali Mohd when Ali Mohd. had gone to Jammu

and had handed over the keys of his premises

to Mohd. Amin.

11. Accused Mohd. Amin and respondent Ali Mohd.

were summoned under Section 67 of the NDPS Act

and their statements were accordingly recorded on

31.5.2003 and 1.6.2003. In the statement made

under Section 67 of the NDPS Act Ali Mohd. on

31.5.2003 and 1.6.2003 had stated before the

investigating officer that accused Mohd. Amin was

his friend as he belonged to Jammu and Kashmir

and used to visit him. He had permitted Mohd.

Amin to keep his bag in his house believing Mohd.

Amin that the said bag contained his clothes. He

had no knowledge that the bag contained hashish

and also that Mohd. Amin was indulged in illegal

activities.

12. The bag was kept by Mohd. Amin in his absence

when he had gone to Jammu to leave his wife and

daughters in the village. It was after his return

back from Jammu that Mohd. Amin had told him

that the bag contained clothes. He also stated that

he was aware that possession, sale, purchase as

well as manufacturing of hashish was an offence

and he had no connection with the recovered

contraband.

13. In the statement recorded on 31.5.2003 Mohd.

Amin did state that Ali Mohd. was to be paid Rs.

10,000/- as a deal money but retracted his

statement on 1.6.2003 when he said that Ali Mohd.

was not indulged in the business of sale of hashish.

In his initial statement made on 31.5.2003 accused

Mohd. Amin had stated that for fear of visit of

Police he had kept the bag containing hashish in

the house of Ali Mohd. when Ali Mohd. was not in

his house and had gone to Jammu after handing

over the keys of the house to him. This bag he kept

five days before the raid was conducted and

hashish was recovered from the house of Ali Mohd.

From the statements of both accused persons made

to the Investigating Officer it has emerged that Ali

Mohd. did not know anything about the contents of

the bag kept in his house by Mohd. Amin in his

absence when he had gone to Jammu. Needless to

say that statements of the accused persons

recorded under Section 67 of the NDPS Act are

relevant and admissible in evidence against them.

14. Under these circumstances, it is to be seen if the

recovery of the bag from the premises belonging to

respondent Ali Mohd. can be considered as

conscious possession of hashish by Ali Mohd. so as

to implicate him for an offence under Section 20 of

the NDPS Act. Whether there was a conscious

possession in a given case need not be physical

possession but can be constructive possession

having power and control over the article in the

case in question while the person to whom the

physical possession is given holds it subject to that

power or control. However, once possession is

made out or is established, the person who claims

that it was not a conscious possession has to prove

as to how he came in possession because the said

possession is within his special knowledge.

15. Under Section 35 of the NDPS Act Court has to

raise the presumption to the existence of such

culpable mental state of the accused for an offence

committed under the Act which requires existence

of such mens rea for the offence to be committed.

However, this presumption is rebuttable. The

accused has every right in defence to prove the fact

that he had no such mental state with respect to

the act charged as an offence in such prosecution.

Culpable mental state therefore includes intention,

motive, knowledge of a fact and belief in or reason

to believe in a fact. It is to be kept in mind that a

fact is said to be proved only when the court

believes it to exist beyond a reasonable doubt and

not merely when its existence is established by the

preponderance of probability.

16. In Madan Lal and Another v. State of H.P. -

(2003) 7 SCC 465 conscious possession has been

dealt with in detail in the following manner:

"19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja4 to work out a

completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.

23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.

24. As noted in Gunwantlal v. State of M.P.5 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control."

17. In the present case, even the secret information

received by the petitioner was that the bag

containing drugs was brought by Mohd. Amin and

was lying at premises No. A-46, Gali No. 4,

Bhagirathi Vihar might be with or without the

knowledge of the house owner Ali Mohd. The door

of the house was opened by Ali Mohd. when NCB

officers had knocked at the door of his house. The

statement of Mohd. Amin and that of Ali Mohd.

make it clear that Ali Mohd. had nothing to do with

hashish which was recovered from the bag

admittedly belonging to Mohd. Amin. Though

presence of Ali Mohd. is not in dispute, prima facie

there is no evidence to indicate that Ali Mohd. had

knowledge of hashish kept in the bag. This bag

was kept in his house in his absence when he had

gone to Jammu leaving keys of his house with

accused Mohd. Amin as he was known to him from

before. The premises of the respondent were

misused by Mohd. Amin for concealing hashish in

his absence and without his knowledge with a view

to save himself from the Police.

18. The trial court under these circumstances rightly

observed:

"It is seen that in the present case, there is no evidence which if put to the trial against accused Ali Mohd. could result in his conviction. It is apparent on record that accused Ali Mohd. did not know, that the said bag belonging to Mohd. Amin contained hashish. The ld. Spl. PP has pointed out to me that the co-accused Mohd. Amin in his statement has stated that Ali Mohd. had to get a commission of Rs. 10,000/- in this deal. However, this co accused when present before the IO again on 01.06.2003 has gone back on his statement and had retracted his earlier stand before the IO himself and has stated that accused Ali Mohd. had nothing to do with the same and that Ali Mohd. did not deal with charas. The secret information received in the office of the NCB also specifically says that the said contraband was kept in the hosue of Ali Mohd. at A-46, Bagirathi Vihar, Delhi. In the secret information, it has been specifically stated that the said bag containing the contraband may have been kept there with or without the

knowledge of the house owner Ali Mohd. This itself shows that even the NCB was not sure whether Ali Mohd. was aware if the bag containing the contraband hashish or not and they collected no evidence to prove that he was in fact aware."

19. The trial court also rightly rejected the plea of the

special public prosecutor when he argued that Ali

Mohd. could have known that there was something

fishy kept in the bag of Mohd. Amin as hashish

emanates a very strong foul smell and he could

have known the same when a large quantity of

hashish weighing about 25 kg. was kept in the said

bag, when it observed that the bag was a zipper

bag and the contraband was found contained in 13

packets wrapped in brown adhesive cello tape and

therefore there could not have been any foul smell

emanating from the hashish so concealed, and

could not have been, therefore, detected easily by

respondent; Ali Mohd.

20. There is no statutory provision for drawing any

presumption that a person who was present at any

particular place would be presumed to be in

possession of the narcotic/contraband nor any such

presumption can be drawn under Section 114 of

the Evidence Act merely because the said person

was present when the premises were raided.

21. Om Prakash v. The State (supra) and Sahibe

Alam v. State (supra) case as referred to by the

learned counsel for the respondent speak about the

inadmissibility of a disclosure statement made by

an accused against co-accused being not a

substantive piece of evidence and it was observed

that charge could not be framed on the basis of

such an incriminating statement of the co-accused.

Both these judgments have no relevance to the

facts and circumstances of this case as statements

under Section 67 of the NDPS Act are relevant and

admissible in evidence.

22. Proposition of law as laid down in Union of India

v. Prafulla Kumar Samal and Anr. (supra) as

well as Om Wati v. State (supra) are no longer

res-integra. The trial court did apply its judicious

mind while discharging the respondent to the facts

and circumstances of this case. Had the court

acted mechanically without application of mind it

would have proceeded with framing of charge

under Section 20 of the NDPS Act against the

respondent as well. From the prosecution evidence

as placed on record, there is hardly a probability

that it would result into conviction of the

respondent. Since court found and rightly so, that

the case of the prosecution was weak, discharged

the respondent in this case.

23. I find no illegality or infirmity in the order of the

trial court dated 19.9.2003. Hence, I find no merits

in the revision petition and the same is accordingly

dismissed.

(ARUNA SURESH) JUDGE February 13, 2009 jk