Page No.# 1/15 vs The State Of Assam And Anr
2021 Latest Caselaw 3427 Gua

                                                                  Page No.# 1/15

GAHC010276782019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./51/2020

            SRI BISWANATH PRATAP SINGH AND ANR
            S/O- SRI GOVIND PRAKASH SINGH @ GOVINDA PRASAD SINGH, R/O-
            VILL.- MONDERI, P.S. MANPUR, DIST.- SITAPUR (UP).

            2: ASHOK BHAGAT
             S/O- LATE BAHADUR BHAGAT
             R/O- VILL.- PADUM NAGAR
             2 NO. PUBLIC SCHOOL
             BAIRAGI ROAD
             P.S. AND DIST.- DIBRUGARH
            ASSA

            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY P.P., ASSAM

            2:SHRI GIRINDRA NATH HALOI
             S/O- LATE CHENI RAM HALOI

            SI OF POLICE
            GUWAHATI GRPS

Advocate for the Petitioner   : MS. S K NARGIS

Advocate for the Respondent : ADDL. PP, ASSAM

Page No.# 2/15

BEFORE THE HON'BLE MR JUSTICE SUMAN SHYAM THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

For the Appellant : Ms. S. K. Nargis.

Advocate.

For the Respondents                : Ms. N. Das.
                                     Addl. P. P. Assam.

Date of Hearing                    : 03.12.2021

Date of Judgement                  : 13.12.2021


                                  JUDGEMENT & ORDER (CAV)
(A. D. Choudhury. J)

Heard Ms. S.K. Nargis, learned counsel appearing for the appellants. We have also

heard Ms.N. Das, learned APP, Assam, appearing for the State.

1. This appeal is directed against the judgment and order dated 12/09/2019 passed by

the learned Sessions Judge, Kamrup(M), in NDPS Case No. 58/2018, finding the

appellants guilty of committing offences under Sections 20(b)(ii)(c) and 29 of the

NDPS Act'1985 and sentencing them to undergo RI for 14 years and also to pay fine

of Rs.200000/- (rupees two lacs) each, in default to undergo rigorous imprisonment for

another 6(six) months each.

2. The facts of the case, briefly stated, are that on 10/04/2018, one Girindra Nath Haloi,

S.I. of Guwahati GRPS, Assam, had lodged an ejahar before the In-Charge, Guwahati

GRPS, informing that on 10/04/2018, at 7.30 a.m., the train checking party, ASI Dinesh

Deka, along with staff conducted checking inside the train No.12435DN Rajdhani Page No.# 3/15

Express, while it was standing at Platform No.1, in Guwahati Railway station, had

detected that the Bedroll staff of Coach No.4A and Coach No.B3 were carrying

suspected Ganja in bags kept inside the bedroll cabin of the Coach. Immediately, the

checking party deboarded the bedroll staff along with the three Bags containing Ganja

from the coach and detained them with the bags at Plat Form No.1. On getting

information from the Checking party, O.C., GRPS issued authority letter under section

41(2) of the NDPs Act, to the informant and the informant visited the place of

occurrence, examined the checking party, detained the bedroll staffs who on being

asked, disclosed their names, to be Ashok Bhagat and Viswanath Pratap singh. During

their bag checking, total five packets of suspected Ganja weighting 38 kgs wrapped in

black polythene were recovered from the two black colored bags alleged to be of

Ashok Bhagat. Also recovered one alleged ID card allegedly kept in one of the bags. A

total of 27 KGs of suspected Ganja, wrapped in three black polythene bags, were

recovered from a red colored bag allegedly belonging to Sri Viswanath Pratap Singh

and also recovered one ID card and two numbers of mobile handset. Accordingly,

Guwahati GRPS Case No. 85/2018 was registered under Section 20(C)/29 NDPS Act

and the Officer-in-Charge of Guwahati GRPS Police Station took up the matter for

investigation and one Sri Mahesh Baishya, Sub Inspector, Guwahati GRPS was

appointed as Investigating Officer.

3. During the course of investigation, the I.O. had recorded the statements of the

witnesses, statement of the informant, drew sketch map and took custody of the

seized Ganja. The original samples of the seized Ganja was sent to Forensic Science

Laboratory for examination. Upon completion of investigation, the I.O. had laid charge Page No.# 4/15

sheet against the two accused under Section 20(C)/29 of the NDPS Act.

4. Thereafter, charge under section 20(b)(ii)(C) and under Section 29 of the NDPS act

was framed against the accused persons and the same was read over and explained to

them. However, since the accused had pleaded not guilty and claimed to be tried, the

matter went up for trial.

5. During the course of trial, the prosecution side had examined as many as 6 (six)

witnesses, including the IO and the Deputy Director, Drugs and Narcotic Division,

Directorate of Forensic Sciences, Assam, who had conducted examination of the

samples of the suspected Ganja and submitted his Report. After conclusion of

recording of evidence of the prosecution witnesses, the accused were examined

under Section 313 of the Cr.P.C., wherein, they denied their involvement in the matter

and had taken the plea of false accusation.

6. Upon conclusion of trial, the learned Sessions Judge, Kamrup (Metro), had held that

the PW5, who examined the samples of the seized ganja, gave positive tests for

Cannabis (Ganja) and the defense failed to shake his evidence. The PW1, PW2 and

PW3 have deposed that during the routine checking, they first recovered the Ganja

from the possession of Sri Ashok Bhagat and thereafter, on information provided by

the accused Ashok Bhagat, the PW1, PW2 and PW3 went to Coach B3, recovered 27

KGs of Ganja from the accused Viswanath Pratap Singh. It was also held that the

prosecution witnesses have identified the bags containing suspected Cannabis

recovered from the possession of both the accused. It was held by the Learned

Sessions Judge that the defense has failed to challenge the deposition of the PW4 Page No.# 5/15

regarding the fact of seizure of the ID Cards, Adhar Card and Mobile Phones from the

possession of the accused persons and has also failed to put suggestion that the

material exhibit VI and VII envelops did not contain the IDs, Adhar and Mobile

Handsets. Therefore, the learned Court below held that the prosecution had succeeded

in bringing home the charges under Sections 20(b)(ii)(C) and 29 of the NDPS Act

beyond all reasonable doubt. Accordingly, the accused were convicted sentenced as

indicated above.

7. By referring to the materials available on record, Ms.S.K. Nargis, learned counsel

appearing for the appellants submits that the prosecution has failed to establish the

conscious possession of the suspected Cannabis by the appellants, in asmuch as,

there are no evidence on record to show that the two accused persons were Bedroll

employees and that the bags from which the contraband was recovered belonged to

the accused persons or that they had control over the Almirahs from which, the bags

containing suspected cannabis were recovered. Such failure on the part of the

prosecution, according to Ms. Nargis would have fatal consequences on the

prosecution case. Ms. Nargis, further submits that the presumption of culpability

against the accused under the NDPS Act is rebuttable and the same does not dispense

with the obligation of the prosecution to prove the charge beyond reasonable doubt.

According to her, the learned Trial Court had convicted her clients on the basis of

preponderance of probability and not beyond reasonable doubt. To buttress her

aforesaid argument, Ms. Nargis, has relied upon the decisions rendered in the case of

Gangadha alias Gangadhar Vs. State of Madhya Pradesh reported in 2020 (9) SCC 202

and Karnail Singh Vs. Sate of Haryana reported in (2009) 8 SCC 539.

Page No.# 6/15

8. The learned counsel for the appellant further submits that though the IO did not

exhibit ID cards and, Adhar Card allegedly belonged to the accused persons and

therefore, there is no evidence in the case to implicate her clients for committing any

offences under section 20(b)(ii)(c) and 29 of the NDPS Act

9. Ms. N. Das, learned APP, Assam, appearing for the State, on the other hand, has

argued that in this case, the prosecution has succeeded in establishing that the victim

was in control of the contraband and the same has been recovered from their

possession. According to Ms. Das, the statements of PW1, PW2 and PW3 clearly

establishes that the accused themselves have opened the locked Almirahs with the

keys, which were under their possession. The cannabis concealed in the bags were

found inside such Almirahs. According to Learned A.P.P., the Identity Cards of the

Accused persons were also found inside the bags. Therefore, Learned A.P.P. submits, it

cannot be said that evidence is not sufficient in the case to implicate the appellants.

By referring to Section 35 and 54 of the NDPS Act, the learned A.P.P., further submits

that in a case where the accused is prosecuted for offence committed under sections

20(b)(ii)(c) and 29 of the NDPS Act, the court is empowered to draw presumption of

guilt of the accused. Therefore, having regard to the facts and circumstances of the

case as well as the evidence brought on record, the learned Sessions Judge has rightly

held that the accused were guilty and sentenced them under sections 20(b)(ii)(c) and

29 of the NDPS Act. In such view of the matter, no interference with the impugned

judgment and order dated 12/09/2019 by this Court is called for.

10. We have taken note of the submissions advanced by the learned counsel representing

for both the parties and have also carefully gone through the materials available on Page No.# 7/15

record.

11. The PW-1 has deposed that when, he along with other staffs of GRPF was in routine

train checking, he had noticed a bedroll employee i.e. accused No.1 visibly nervous

and the train checking constables on suspicion asked him what is inside the bedroll

almirah. During checking, two trolley bags were found and when it was opened by

accused No.1, the checking party found the suspected 5 packets of Ganja inside

both the trolley bags, wrapped in polythin papers. PW1 further deposed that on

interrogation, accused No.1 admitted that accused No.2 is also accompanying him. The

accused No.1 led the checking party to Coach No.B3, identified the accused No.2 and

three packets of suspected Ganja were recovered from one trolley bag found with the

accused No.2. Thereafter OC, GRPS sent PW4 with weighting apparatus. PW4

brought out the packets of the contraband. Two ID cards and one Mobile handset were

also recovered. He was the seizure witness of the contraband. This witness had also

exhibited the Seizure list Ext.I and Ext.II the seizure list of the Contraband.

During his cross- examination, the PW-1 stated that he had not seized any document

to show that the two accused were in Bedroll duty. PW-1 has also deposed during

cross examination that the respective almirahs were under lock and key and were

opened by the accused persons but the keys were not seized.

12. The PW-2 was one of GRP Personnels engaged on checking duty on the date of

occurrence. He deposed that after entering into the train along with PW1 and PW3,

they asked Incharge of the Coach A4, namely, Ashok Bhagat to open the almirah, who

in turn opened the lock and two bags inside the almirah were found. On being asked Page No.# 8/15

the accused No.1 opened the bag and the suspected ganja was found. On

interrogation, the accused No.1, disclosed about the accused No.2, who was in Coach

B3. Then they went to coach No.B3, searched the almirah, found one bag inside the

Almirah, where suspected ganja were found. They brought down the accused from the

train, PW1 informed the OC, GRPS. PW4 was sent to the platform by the OC GRPS.

Thereafter PW4 seized the suspected Ganja. The PW2 was the seizure witness.

During cross examination, he stated that they have not examined any Incharge of the

accused No.1 and 2. He also stated that he has not seen any ID cards of the two

accused. He denied the suggestion of the prosecution that nothing was recovered from

the possession of the accused.

13. The PW3 was also a member of the GRPS checking party and is a seizure witness. He

deposed that after entering into the train along with PW1 and PW2, they asked

Incharge of the Coach A4, namely, Ashok Bhagat, as to who was the Incharge of the

almirah, to which said accused No.1 told that he was the Incharge and on being

asked, he had opened the almirah, inside which two bags were found. On asking

whether anybody else was with him, the accused No.1, told about the accused No.2,

who was in Coach B3. Then they went to coach No.B3, searched the almirah, found

one red bag inside the Almirah, where suspected ganja were found. As the train was

departing, they brought down the accused from the train. The suspected ganja was

seized by the PW4 before him and put his signature in the seizure list i.e. Exts.I and II.

During cross examination, PW3 stated that PW4 did not seize duty allotment document

relating to the accused persons. They did not examine any Incharge of the two Page No.# 9/15

accused persons nor did they seize the keys of the Almirahs. This witness has denied

the suggestion of the prosecution that nothing was recovered from the possession of

the accused.

14. PW-R Girindra Nath Haloi was ASI, GRPS, Guwahati, the informant in the case, who

was authorized under section 42 (1) of the NDPS Act, by the OC, GRPS, Guwahati to

take necessary action regarding the recovered Ganja. He deposed that after reaching

the Platform No.1 of Guwahati Railway station, found the checking party led by PW2

with two persons and three bags. He interrogated the said two persons, searched the

bags in presence of witnesses and found five packets of Ganja from the bag of

accused No.1 and 3 packets of ganja from the bag of accused No.2. He weighted the

contraband and seized the same. He exhibited Material Ext.VI, the envelope containing

the seized mobile phones, identity cards and Adhar Card.

During Cross examination, he had stated that he found the accused in the platform

and not inside the train. He did not personally know from where the checking party

brought the accused persons. He cannot say under whom the accused were working.

He did not seize any key of the almirahs. The material exhibit VI did not contain his

signature, signature of the accused or of any witness. He denied the suggestion of the

defense that accused had no connection with material Ext.I, II and III.

15. PW-6 is the IO of the case. He deposed that he recorded the statement of PW4 and

thereafter, visited the place of occurrence, sent the original Sample to FSL.

During his cross examination he stated that he did not examine any witness after

visiting the place of occurrence, he did not enquire about whether the accused were Page No.# 10/15

working as bedroll staff under any contractor, he did not examine the Incharge of the

bedroll staff, he did not collect any certificate to travel in the train issued to the

accused as bedroll staff. He denied the suggestion given by defense that accused had

no connection with the seized articles.

16. Now the question of determination is whether the appellants are right in contending

that there was no conscious possession and that no presumption could be raised

under Section 35/54 of the NDPS Act, on the basis of evidence available on record?

17. For a proper appreciation of the factum of conscious possession of the contraband, it

is inevitable to consider the foundational facts which led to the seizure of the

contraband article as per Ext.I and II seizure list, allegedly from the accused persons.

To bring home the charge of conscious possession of the contraband, the prosecution

relied on deposition of PW1, PW2, PW3, PW4 and PW6. Their evidence in chief and

cross examination can be summarized as follows:

I. During a routine checking in the Coach A4, on suspicion, the Checking party,

consisting of PW1, PW2 and PW3, asked the accused No.1 to open the lock of

the Bedroll almirah, wherein two bags containing suspected ganja were found

and the begs were opened by the accused No.1.

II. On interrogation, the accused No.1 disclosed that accused No.2, who was in

Coach B3 was also possessing ganja.

III. Accordingly, the accused No.2 was asked to open lock of the bedroll almirah of

Coach B3, which he opened and one bag containing ganja was recovered.

IV. As the train was about to leave the station, they brought down the two Page No.# 11/15

accused persons along with the seized Ganja and the bags belonging to the

accused persons to the Platform No.1.

V. The PW1 informed the OC, GRPS, Guwahati regarding the recovery of the

suspected Ganja, who in turn authorized PW4 to do the needfull.

VI. After reaching the Platform No.1, PW4, (the informant) found PW1, PW2 and

PW3 along with the two accused persons and the three bags containing the

Contraband.

VII. PW4 interrogated the accused persons, searched the begs in presence of the

witnesses and found the three packets from the bags of accused No.1 and 2

packets from accused No.2, which he seized.

VIII. The PW1, PW2 and Pw3 were the witnesses to the seizure.

In their cross examination, the following statements were made:

I. PW1, PW2 and Pw3, stated that no document was seized to show that the

accused are Bedroll employees.

II. No duty allotment document relating to the accused persons were seized

III. No Incharge of the accused persons were interrogated.

IV. The two Almirahs from which the suspected ganja were recovered, were under

lock and key and was opened by the accused persons but such keys were not

seized.

V. PW4 found the accused persons in the platform not inside the train.

Page No.# 12/15

VI. PW4 did not personally know, from where the checking party (PW1, PW2,

PW3) brought the accused.

VII. He was not aware under whom, the accused were working and that he did not

seize the keys.

VIII. The PW6, the IO of the case, did not examine any witness after

visiting the place of occurrence, did not enquire whether the accused were

working as bedroll staff under any contractor and did not examine any Bed roll

in charge and did not collect any certificate of travel as bedroll employee

relating to the accused persons.

18. Section 20(b)(i) of the NDPS Act provides punishment for possession or transportation

contraband. Possession is made up of two elements, firstly corpus - the element of

physical control and secondly the animus or intent with which such control is

exercised. It is conscious possession, which is contemplated by penal statute, which

provides and penalises possession of any contraband article or thing. Possession for

the purpose of NDPS Act must not be in the sense of physical control over the article

but the second element of animus or intent to possession must also be there. Only

conscious possession invites penal consequences. Thus possession means conscious

possession and not mere custody without awareness of such possession.

19. Section 35 of the NDPS Act provides for presumption of culpable mental state. It

provides that in any prosecution for an offence under this Act, which requires culpable

mental state of the accused, the Court shall presume the existence of such mental

state.

Page No.# 13/15

20. Before that presumption could be raised, prosecution is obliged to establish based on

the principle of preponderance of probability, that the appellant was in exclusive and

conscious possession of the contraband in order to sustain the conviction for illegal

possession of the contraband.

21. While dealing with challenge made to the validity of section 35 and 54 of the NDPS, in

so far as it imposes reverse burden upon the accused, the Apex Court has observed in

the case of Noor Aga Vs State of Punjab reported in (2008) 16 SCC 417, as follows :-

"58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to

the culpable mental state on the part of the accused as also place burden of

proof in this behalf on the accused; but a bare perusal the said provision would

clearly show that presumption would operate in the trial of the accused only in

the event the circumstances contained therein are fully satisfied. An initial

burden exists upon the prosecution and only when it stands satisfied, the legal

burden would shift. Even then, the standard of proof required for the accused

to prove his innocence is not as high as that of the prosecution. Whereas the

standard of proof required proving the guilt of accused on the prosecution is

"beyond all reasonable doubt" but it is `preponderance of probability 'on the

accused. If the prosecution fails to prove the foundational facts so as to attract

the rigors of Section 35 of the Act, the actus reus which is possession of

contraband by the accused cannot be said to have been established."

While upholding the constitutional validity of sections 35 and 54 of the NDPS Act, the

Apex Court has, however, reiterated that more serious the offence, the stricter would Page No.# 14/15

be the degree of proof to convict the accused. It was also observed that an initial

burden would lie upon the prosecution and only when it stands satisfied, the legal

burden would shift upon the accused. What follows from the above decision is that

notwithstanding the concept of reverse burden envisaged by section 35 and 54 of the

NDPS Act, the burden upon the prosecution to prove the foundational fact would still

exist.

22. In the back drop of the aforesaid legal provision and from a close scrutiny of the

materials available on record, the following conclusion can be drawn:

A. The prosecution has failed to prove that the two accused persons were bedroll

employees on duty in the Rajdhani Express train in coaches 4A & B3 and that they

were having control over the two bedroll almirahs wherefrom, the bags containing the

contraband were recovered.

B. No material has been brought on record to prove that the bags belonged to the

accused appellants. The prosecution has therefore, failed to prove the conscious

possession of contraband of the accused beyond reasonable doubt.

C. The PW1, PW2 and PW3, have deposed that recovery is from inside the train. The

informant PW4, who had allegedly seized the contrabands, has deposed that the

recovery was from the Bags found with the accused in the Railway Platform. An overall

analysis of the evidence on record shows that there is a reasonable doubt as to the

actual place and circumstance of recovery of the contraband.

D. Clear proof as regard the link between the accused persons and the seized bags was

required to be brought to show the conscious possession of the contraband by the Page No.# 15/15

accused persons, more so, since the contraband was apparently seized from a public

place viz. railway platform, which was accessible by a large number of passengers.

E. For the above reasons, we are of the view that the prosecution has not been able to

prove the foundational facts of the offence based on preponderance of probability and

therefore, the presumption under Section 35/ 54 of the Act cannot also be drawn

against the accused persons in the case. Rather, the involvement of accused/appellant

is doubtful and hence, they are entitled to the benefit of doubt.

23. In view of the foregoing discussions, we hold that the impugned judgment dated

18.09.2019 passed by the learned Sessions Judge, Kamrup (Metro) in NDPS Case

No.58/2018 of 2018 is unsustainable in law. The same is accordingly set aside.

24. The appeal stands allowed.

25. The appellants/ accused are hereby acquitted by giving them the benefit of doubt.

26. The Appellants Viz. Viswanath Pratap Singh and Ashok Bhagat, shall be forthwith

released from jail, if their custody in connection with any other proceeding is not

required.

27. Send back the LCR.

                   JUDGE                                        JUDGE




Comparing Assistant