Telangana High Court
Mohammed Khayyum vs The State Of Telangana on 12 September, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.2633 of 2018
JUDGMENT:
This Criminal Appeal has been preferred by accused
No.1 in S.C.No.9 of 2017 on the file of the learned Special
Sessions Judge for Trial of Cases under Narcotic Drugs and
Psychotropic Substances Act-cum-I Additional Sessions
Judge, Khammam against the judgment of conviction dated
17.08.2018 where under the Court below found the appellant
- accused No.1 guilty for the offence punishable under Section
20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances
Act (for short 'the Act') and accordingly convicted him to
undergo rigorous imprisonment for a period of ten years and
to pay a fine of Rs.1,00,000/- in default to undergo rigorous
imprisonment for a period of two years.
2. The brief facts of the case are that on 26.03.2017, at
07:00 a.m., one While Bolero car without a license plate was
going towards Paloncha from Badrachalam Road at high
speed. The Forest Section Officer, Paloncha and his team
stopped the car and found four people inside and on enquiry,
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they revealed that they were from Odisha State. Further, the
Police discovered a bundle of packed ganja inside the car. It is
alleged that total 208 kgs worth Rs.12,48,000/- was seized
from both the accused. Police accordingly, registered Crime
NO.141 of 2017 against both the accused and took up
investigation and after a full-fledged investigation, they have
filed the charge sheet.
3. In support of their case, prosecution examined P.Ws.1 to
9 and got marked Exs.P1 to P16 and M.Os.1 to 5 were
marked. On behalf of accused, no oral evidence was adduced,
however, Ex.B1 was marked.
4. The trial Court, after full-fledged trial and on hearing
both sides, found both the accused guilty for the offence under
Section 20(b)(ii)(C) of the Act and accordingly, convicted them.
5. The trial Court noted the testimony of the prosecution
witnesses is coherent with regard to the commission of offence,
carrying out the panchanama and seizing of ganja from
accused Nos.1 and 2. According to the evidence, the accused
are in possession of a Bolero Vehicle and 104 packets of ganja,
each weighing 2 kgs. The trial Court opposed the submissions
of the learned counsel for the accused with regard to the
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testimony of the interested witnesses and inconsistencies in
the testimony of the prosecution witnesses, citing the
reliability and consistency of the evidence.
6. Heard Sri P. Susheel Kumar, learned counsel appearing
on behalf of the appellant and Sri S. Ganesh, learned
Assistant Public Prosecutor appearing on behalf of the
respondent - State.
7. Learned counsel for the appellant submitted that the
learned Sessions Judge failed to see the seizure column in FIR
is empty which establishes that nothing was seized. He
further submitted that no independent witnesses were
examined and sample has not been drawn from each packet
which discloses that prosecution has not followed the
procedure while seizing the contraband and conducting
investigation. He further submitted that the appellant is the
driver of the vehicle and he is no way concerned with the
offences as alleged and that the trial Court without
considering the same imposed the sentence, which is
exorbitant. Therefore, he prayed the Court to set aside the
judgment of conviction against the appellant.
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8. On the contrary, learned Assistant Public Prosecutor
submitted that the contraband seized is commercial quantity
and the sentence imposed against the appellant is
commensurate to the quantity seized. He further submitted
that even if the appellant is the driver of the vehicle, he is also
liable for the punishment. Therefore, the trial Court has rightly
passed the order and the judgment under Appeal needs no
interference.
9. In the light of the submissions made by both the learned
counsel and a perusal of the material available on record, it
appears that the evidence of P.W.8, who is the Circle Inspector
stated that on 26.03.2017 received FIR and sent the
requisition to P.W.6-Tahsildar to be present at the Forest
Check Post, Paloncha. Since the accused were conversing in
Hindi, he asked P.W.4 to act as their translator. He then
questioned the accused in front of P.W.6, recorded the
confession statement and seized 104 packets of ganja, two cell
phones, an Aadhar card and a Bolero car. Further, he made a
requisition before the II Additional Judicial Magistrate of First
Class, Kothagudem for collecting the samples and samples
were drawn in the presence of the learned Magistrate and the
same was photographed. It is stated that samples were sent
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to Forensic Science laboratory and the report of the said
Laboratory revealed that samples were of ganja. From the
above evidence, it is clear that P.W.8 had followed the
procedure for seizure of the contraband and for sending the
same to the Forensic Science Laboratory. P.W.8 is an official
witness and no animosity can be attributed to him.
10. In their evidence, P.W.1 Forest Section Officer, P.W.2
Forest Beat Officer, P.W.3 Police Constable, Paloncha
reiterated the contents of the Report. It is therefore, clear that
the evidence of all the witnesses is consistent and they
corroborate the version of the prosecution with regard to
commission of offence, conducting panchanama and seizure of
ganja from both the accused. The learned counsel for the
appellant contended that all the witnesses are official
witnesses and interested witnesses and there is no
independent witness to corroborate the version of prosecution.
P.W.8 stated that no independent witness was available at that
time. In view of the law laid down by the Hon'ble Supreme
Court in Hari Obula Reddy v. State of Andhra Pradesh 1, it
can be concluded that evidence of interested witnesses cannot
(1981) 3 SCC 975
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be discarded merely because there is no independent witness
to support the prosecution version.
11. At this stage, it is pertinent to note the Judgment of the
Hon'ble Supreme Court in Union of India v. Md. Nawaz Khan,
wherein in paragraph Nos.25, 26, 28, 29 and 30, it is held as
follows:
"25. We shall deal with each of these
circumstances in turn. The respondent has been accused
of an offence under Section 8 of NDPS Act, which is
punishable under Sections 21, 27-A, 29, 60(3) of the said
Act. Section 8 of the Act prohibits a person from
possessing any narcotic drug or psychotropic substance.
The concept of possession recurs in Sections 20 to 22,
which provide for punishment for offences under the Act.
In Madan Lal v. State of H.P., this Court held that:
"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.
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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 Supt. &
Remembrancer of Legal Affairs, W.B. v. Anil Kumar
Bhunja, to work out a completely logical and precise
definition of "possession" uniform(ly) 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.
26. Once possession is established, the person
who claims that it was not a conscious possession
has to establish it, because how he came to be in
possession is within his special knowledge. Section
35 of the Act gives a statutory recognition of this
position because of the presumption available in law.
Similar is the position in terms of Section 54 where
also presumption is available to be drawn from
possession of illicit articles."
26. What amounts to "conscious possession" was
also considered in Dharmpal Singh v. State of Punjab,
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, this Court also observed
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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.
28. As regards the finding of the High Court
regarding absence of recovery of the contraband from the
possession of the respondent, we note that in Union of
India v. Rattan Mallik, a two-Judge Bench of this Court
cancelled the bail of an accused and reversed the finding
of the High Court, which had held that as the contraband
(heroin) was recovered from a specially made cavity above
the cabin of a truck, no contraband was found in the
"possession" of the accused. The Court observed that
merely making a finding on the possession of the
contraband did not fulfill the parameters of Section
31(1)(b) and there was non-application of mind by the
High Court.
29. In line with the decision of this Court in
Rattan Mallik, we are of the view that a finding of the
absence of possession of the contraband on the person of
the respondent by the High Court in the impugned order
does not absolve it of the level of scrutiny required under
Section 37 (1)(b)(ii) of the NDPS Act.
30. With regard to the statement under Section
67 of the NDPS Act, the High Court has placed abundant
reliance on the inclusion of Mohd. Arif Khan's name in
place of the respondent's name in the endorsement of
translation on the statement of the respondent. In Tofan
Singh, a three-judge bench of this Court held that a
statement under Section67 of the NDPS Act is
inadmissible. The ASG submitted that independent of the
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statement, there are valid reasons to deny bail on the
basis of the material which has emerged at this stage."
12 In the instant case, the claim of the learned counsel for
the appellant is that appellant is only a driver and he is no
way concerned with the alleged offence. As observed by the
Hon'ble Supreme Court in Md. Nawaz Khan (supra), that the
standard of conscious possession would be different in case of
a public transport vehicle with several person as opposed to a
private vehicle with a few person known to one another.
13. Therefore, even if the appellant is only the driver of the
subject vehicle, the contraband i.e., 104 packets of ganja, was
recovered from the vehicle and the subject vehicle was a
private vehicle. Further, once the possession is established,
the person who claims that it was not a conscious possession
has to establish it, because how he came to be in possession is
within his special knowledge. Section 35 of the Act gives a
statutory recognition of this position because of the
presumption available in law. Similar is the position in terms
of Section 54 whereunder presumption is available to be
drawn from possession of illicit articles. Further, the ground
raised by the learned counsel for the appellant that though the
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appellant was the driver of the private vehicle and he was no
way concerned with the alleged seizure, is unbelievable.
14. Learned counsel for the accused has submitted that
neither the date of the crime nor the specifics of the seized
property were specified in the complaint. He has also raised
concerns regarding a few of the smaller inconsistencies. It is a
well settled law that a Court may not dismiss all the evidences
of the prosecution because of small differences on
unimportant issues that do not impact the case of the
prosecution.
15. The Hon'ble Supreme Court has consistently held that
undue importance should not be attached to omissions and
contradictions and discrepancies which do not go to hear of
the matter and shake the basic version of the prosecution
witnesses. As rightly held by the Court below, the evidence is
consistent on the aspect of seizure. Learned counsel for the
appellant contention is with regard to the biased testimony of
the witnesses is without merit because the biased testimony of
the witnesses is not always trustworthy.
16. A requisition was made before the learned II Additional
Judicial Magistrate of First Class, Kothagudem and the seized
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contraband was photographed once it was presented before
the Magistrate. The trial court has unequivocally noted that
even if there is no seal of the Magistrate on the images, the
presence of the Magistrate in the images proves beyond a
reasonable doubt that the procedure prescribed is being
followed. The evidence in the file unequivocally shows that the
prosecution is capable of proving the guilt of the accused
beyond a reasonable doubt.
17. In view of the above discussion, as the contraband
seized is commercial quantity, this Court is of the opinion that
the learned Sessions Judge, after thoroughly analyzing the
evidence, had come to a right conclusion and the same does
not require any interference by this Court, the same is liable to
be dismissed.
18. Accordingly, the Criminal Appeal is dismissed.
Miscellaneous petitions, if any pending, shall also stand
closed.
___________
K. SUJANA
Date: 12.09.2024
SAI
