Shrikant Tripathi, J.@mdashThe appellant Satya Narayan has preferred this appeal against the judgment and order dated 12.12.2006. rendered by Mr. L.K. Rathi. XVIth Additional Sessions Judge, Kanpur Nagar in Session Trial No. 49 of 2002, State v. Satya Narayan, whereby the learned Additional Sessions Judge convicted and sentenced the appellant u/s 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ''the Act'') to undergo rigorous imprisonment of ten years and also to pay a fine of Rs. one lakh and in default of payment of fine to undergo additional imprisonment of one year. According to the prosecution story, in the night of 5/6.11.2001, P.W. 1 R.K. Verma (Excise Inspector) was on patrolling duty alongwith Head Excise Constable Shakti Deen. Chandra Prakash Srivastava and Excise Constable Rajendra Pal and Hari Kishan. At about 12.00 in the night a secret informer informed him that certain persons were coming from Haldwani with ganja on bus. On this information, R.K. Verma Excise Inspector and aforesaid excise officials reached near Naramau Old Chungi and started search of roadways buses arriving there. At about 4.45 a.m. bus U.P.-026-6734 arrived there from Farrukhabad side. R.K. Verma. Excise Inspector checked the bus and noticed that two suspicious persons were sitting on the rear seat of the bus. On being asked, one of them namely, the appellant told his name, parents'' name, name of his village, police station and district. The Excise Inspector informed him that if he wanted his search in the presence of a Magistrate or a Gazetted Officer, the Magistrate or the Gazetted Officer would be called before the search but the appellant Satya Narayan declined to have searched out before a Magistrate or a Gazetted Officer and allowed the Excise Inspector to make the search himself. It is also alleged that the appellant had kept two briefcase beneath his seat, which were taken by the Excise Inspector in his possession and on the search of both the briefcase, contraband ganja was found therein. In one briefcase eleven kg. and in other briefcase 12.5 kg. ganja was found. The appellant was also found in possession of a roadways bus ticket No. 4963427 (Exhibit Ka-2). The Excise Inspector prepared the recovery memo (Exhibit Ka-1) and obtained the signature of the bus conductor and driver thereon. The passengers, who were travelling in the bus, declined to become witnesses of the recovery. The Excise Inspector took sample of ganja from both the briefcases and sealed them separately. Both the briefcases alongwith ganja were also sealed on the spot. The Excise Inspector delivered the sample of ganja as well as recovered ganja to P.W. 3 Jagmohan Shukla, who was incharge of the malkhana. The accused was produced on the next date before the Magistrate alongwith recovered ganja, who was remanded to the custody. The sample of ganja was sent to Forensic Science Laboratory, Lucknow for analysis through P.W. 4 Excise Constable Ram Milan. The Forensic Science Laboratory made chemical analysis of the sample of ganja, which was about 35 grams and arrived at the conclusion that the same was ganja and submitted its report Exhibit Ka-5. It may also be mentioned that the Excise Inspector had informed in writing to his immediate senior officer (Assistant Excise Commissioner, Enforcement) Kanpur on 6.11.2001 regarding the search and recovery of ganja from the appellant. A copy of the letter sent to the Assistant Excise Commissioner is on record as Exhibit Ka-4. Mr. R.K. Verma, Excise Inspector filed charge-sheet (challani report), Exhibit Ka-7 against the appellant.
2. The appellant denied the charge framed against him and claimed to be tried.
3. In support of the charge, the prosecution examined as many as four witnesses. P.W. 1 R.K. Verma was the Excise Inspector who made the search. P.W. 2 Hari Kishan Excise Constable claims himself to be an eyewitness of the occurrence and was present at" that time. These two witnesses have supported the story of the search and recovery of two briefcase containing 23.500 kg. ganja from the possession of the appellant. These two witnesses further proved the recovery memo (Exhibit Ka-1) and other relevant documents. P.W. 3 Jagmohan Shukla and P.W. 4 Constable Ram Milan are mere formal witnesses. P.W. 3 Jagmohan Shukla proved that the recovered ganja was deposited in the malkhana in the sealed condition. P.W. 4 Constable Ram Milan proved that he had delivered the sealed sample of the recovered ganja for analysis to the Forensic Science Laboratory, Lucknow.
4. The appellant was examined u/s 313 of the Code of Criminal Procedure, who denied the allegations made against him and stated that the witnesses have given false statements. He further stated that a dispute took place between him and the bus conductor, therefore, the bus conductor got him implicated in the present case.
5. The learned trial court believed the prosecution story and found the appellant guilty of the charge u/s 20(b)(ii)(c) of the Act and accordingly convicted and sentenced him as aforesaid.
6. I have heard the learned counsel for the appellant and Sri Narendra Dev Rai, the learned A.G.A. for the State and perused the record.
7. The learned counsel for the appellant pressed the following points for assailing the impugned judgment and order:
(a) There was no compliance of Section 50 of the Act before making the search;
(b) There is no evidence that the appellant had conscious possession over the recovered briefcases containing the ganja;
(c) There is no link evidence to connect the sample of the ganja and recovered ganja with the present crime;
(d) No independent witness was examined during the trial to prove the search and recovery.
8. Learned A.G.A. in rebuttal made the following submissions:
(a) Section 50 of the Act is not attracted in view of the fact that instead of search of the appellant''s person, his briefcases were searched.
(b) Both the briefcases were found beneath the seat of the appellant and there was no reason for the appellant to allow any other passenger to keep his briefcases beneath his own seat, therefore. the appellant was in conscious possession of both the briefcases and the conclusion of the learned trial court with regard to the appellant''s possession is based on proper appraisal of evidence on record;
(c) P.W. 1 R.K. Verma and P.W. 2 Hari Kishan had no animus against the appellant nor there was any reason for them to falsely implicate the appellant, therefore, their testimonies cannot be discarded only on the ground that independent witnesses have not been examined. The bus conductor and driver have signed the recovery memo as witnesses of the search and recovery but the passengers present in the bus declined to be witnesses in the case. In this view of the matter, the appellant cannot be acquitted only on the ground that no independent witness has been examined.
(d) P.W. 1 R.K. Verma, P.W. 3 Jagmohan Shukla and P.W. 4 Ram Milan have led link evidence to connect the sample of the ganja as also the recovered ganja with the present crime. Moreso, both the briefcases as well as ganja and other relevant documents were produced during the trial to connect the recovered ganja with the present crime.
9. In view of the submissions made on behalf of the appellant and the respondent, the following points arise for decision:
(1) Whether there was noncompliance of Section 50 of the Act at the time of the search and recovery?
(2) Whether the appellant had conscious possession over the recovered briefcases containing ganja?
(3) Whether non-examination of independent witnesses has material bearing and can be taken as a ground to discard the statements of P.W. 1 R.K. Verma and P.W. 2 Hari Kishan?
(4) Whether there is no evidence to connect the recovered ganja as well as the sample of ganja with the present crime?
Point No. 1
10. The submission of the learned counsel for the appellant is that the Excise Inspector did not inform the appellant that it was his legal right to have the search before a Magistrate or a Gazetted Officer, therefore, there was non-compliance of Section 50 of the Act. The alleged recovery was made on the basis of the search of the appellant''s briefcases conducted in the aforesaid bus. and on the basis of that search, recovery of the ganja was made from the briefcases. Therefore, it does not appear to be a case of search of the appellant''s person (body). The Apex Court has considered the ambit and scope of Section 50 of the Act in the catena of decisions and some of them are as follows:
(i)
(ii)
(iii)
(iv)
(v)
11. In the case of Kalema Tumba (supra), the Apex Court has discussed the provisions pertaining to "personal search" u/s 50 of the Act and held that".... if a person is carrying a bag or some other article with him and a narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his ''person''."
12. In Pawan Kumar''s case (supra), the Apex Court while examining the scope and ambit of Section 50 of the Act, has held in paras 10 and 11 as follows:
10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person" appears to be... "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one''s home. Such appropriate coverings or clothings or footwear, after being worn, move alongwith the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving alongwith them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
13. Similarly, the Apex Court in the case of Megh Singh (supra), has observed that a bare reading of Section 50 of the Act shows that it only applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises.
14. In the case of Vijaysingh Chandubha Jadeja (supra), the Supreme Court has held that in view of the foregoing discussion, we are of the firm opinion that the object with which right u/s 50(1) of the N.D.P.S. Act, by way of a safeguard, has been conferred on the suspect, viz., to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the N.D.P.S., Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article act suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed
15. The Apex Court has reiterated the aforesaid principles in the recent case of Jarnail Singh (supra) and has held that Section 50 of the Act is not attracted in a case where search of a container is made instead of the person of the accused.
16. A survey of the aforesaid decisions clearly reveals that Section 50(1) of the Act confers a legal right on the person to be searched to have the search of his person (body) done in the presence of a nearest Magistrate or Gazetted Officer, therefore, it is obligatory on the part of the officer intending to hold the personal search to apprise the person to be searched regarding his this legal right and require him to inform as to whether he desires to be searched out in the presence of a Magistrate or a Gazetted Officer. If the officer intending to search, does not inform the person concerned with regard to his aforesaid legal right, it is to be inferred that the officer has not complied with the requirements of Section 50(1) of the Act. If is further clear that the provision'' of Section 50(1) of the Act is mandatory, therefore, it requires a strict compliance. Failure to comply with the requirement of Section 50(1) of the Act would render the recovery suspect and vitiate the conviction if the same is recorded on the basis of the recovery made during the search of the person of the accused. However, it is open to the person to be searched may or may not opt to exercise the right provided to him u/s 50(1) of the Act. It is also well-settled that compliance of Section 50(1) of the Act is necessary only when search is made on the basis of a prior information. Personal search of the accused does not include the search of bag, briefcase or other container being in his possession. Therefore, search of the briefcase, bag or other container does not require compliance of Section 50(1) of the Act. As such violation of Section 50(1) of the Act, while making a search of the bag, briefcase or other container possessed by the accused, cannot be taken as a ground to acquit the accused and discard the prosecution story.
17. In the present case, no search of the person (body) of the appellant was done. Since both the briefcases were searched out by the Excise Inspector, therefore, Section 50(1) of the Act was not attracted and the Excise Inspector was not required to make compliance thereof. In this view of the matter the point No. 1 is decided against the appellant.
Point No. 2
18. Section 20(b) of the Act makes, inter alia, possession of the cannabis (ganja) an offence, therefore, the prosecution has to establish that the appellant was in conscious possession of the recovered ganja. Once possession of the accused is established, the burden lies on him to show that the possession was not conscious. The expression ''possession'' has been analysed by the Apex Court in several decisions and some of them are being referred to hereinafter.
19. In the case of
20. In the case of
21. In the case of
22. In the case of
23. In the case of Megh Singh (supra), the Apex Court reiterated the same principle and further held that the word ''conscious'' means awareness about a particular fact. It is a state of mind which is deliberate or intended. The Apex Court further held that unless the possession was coupled with requisite mental element, i.e., conscious possession and not mere custody without awareness of the nature of such possession. Section 20 of the Act is not attracted. Once possession is established, a person who claims that it was not a conscious possession has to establish it.
24. The burden of the accused to show that he was not in conscious possession is not as onerous as the burden of the prosecution to prove the charge beyond all reasonable doubts. The burden of the accused stands discharged if the defence allegations are shown to be probable. This principle has been explained by the Apex Court in the case of
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 the burden of proof in this behalf on the accused; but 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, would the legal burden 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 to prove the guilt of the 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 rigours of Section 35, the actus reus which is possession of contraband by the accused cannot be said to have been established.
25. The facts of the instant case need to be examined in the backdrop of the aforesaid principles to find out as to whether the appellant was in conscious possession of both the briefcase. The prosecution has proved that the appellant was travelling in bus U.P.-026-6734 and was found sitting on the rear seat of the bus. The bus ticket No. 4963427, Exhibit Ka-2. supports the factum of his travelling in the bus. The appellant has not denied this fact in his statement u/s 313 of the Code of Criminal Procedure. P.W. 1 R.K. Verma and P.W. 2 Hari Kishan have very categorically stated that the appellant had kept both the briefcase beneath his own seat. There does not appear to be any reason for the appellant to allow any other passenger to keep his briefcases beneath the seat occupied by him. It is a matter of common knowledge that passengers travelling in public transport, keep their luggage etc. within their reach and control and preferably beneath the seat occupied by him, therefore, no other conclusion except that the appellant had possession of both the briefcases is possible in this case. More so, P.W. 1 R.K. Verma (Excise Inspector) and P.W. 2 Hari Kishan (Excise constable) have very categorically stated that the appellant himself stated that both the briefcases belonged to him and this statement was made before his arrest and search. The learned counsel for the appellant, however, tried to contend that the Excise Inspector and Excise Constable were police officers u/s 53 of the Act, therefore, the aforesaid statement of the appellant is hit by Sections 25 and 26 of the Evidence Act and is not admissible in evidence. In my opinion, this submission has no merit. Admittedly the Excise Inspector was an empowered officer within the meaning of Section 42 of the Act, therefore, the provisions of Section 67 of the Act were attracted even if they are treated as officers vested with the powers of an officer-in-charge of a police station u/s 53 of the Act and as such the aforesaid statement of the appellant disclosing that both the briefcases belonged to him is relevant and admissible in evidence. More so, the above statement was made by the appellant before his arrest and search and does not, in any way, comes in the category of confession. In such situations, the provisions of Sections 25 and 26 of the Evidence Act would not be applicable. This proposition of law has been laid down by the Apex Court in the cases
Point No. 3
26. P.W. 1 R.K. Verma and P.W. 2 Hari Kishan had no animus against the appellant nor had any reason to falsely implicate him in this case. The appellant is a resident of district Banda whereas the aforesaid excise officials were posted in Kanpur, therefore, they were not only stranger to the appellant but were also independent. In this view of the matter, the statements of the aforesaid two witnesses cannot be discarded only on the ground that they were official witnesses and no public witness has been examined. P.W. 1 R.K. Verma and P.W. 2 Hari Kishan have very categorically stated that the passengers travelling in the bus declined to become witnesses of the case. But the bus conductor and driver took part in the search and recovery proceedings and signed the recovery memo as witness. If the prosecution did not examine the bus conductor and the driver, the same carry no material significance, specially when the statements of the aforesaid excise officials are trustworthy and their testimonies could not be shaken despite cross-examination. If on appraisal of the statements of the witnesses examined during the trial, the Court is of the view that the witnesses are trustworthy and their statements are consistent and could not be shaken in any way, it would be perfectly legal to record a valid conviction on the basis of such statements, therefore, non-examination of independent witnesses is not material and the prosecution case cannot be discarded only on this ground. Point No. 3 is decided against the appellant.
Point No. 4
27. P.W. 1 R.K. Verma and P.W. 2 Hari Kishan have very categorically proved that after the recovery samples of ganja were taken from both the briefcase and were sealed separately. After doing this, both the briefcase with the ganja were also sealed. The sample as well as both the sealed briefcase with the ganja were deposited by the Excise Inspector in the malkhana, which were received by P.W. 3 Jagmohan Shukla, who has very categorically proved this fact. P.W. 4 Constable Ram Milan has proved the fact that he had taken the sealed sample for chemical analysis and had handed over the same to the Forensic Science Laboratory, Lucknow. The report of the Forensic Science Laboratory, Exhibit Ka-5 reveals that the sample of ganja was received in the sealed condition and the seal was intact. The report Exhibit Ka-5 further reveals that the sample was ganja. The prosecution produced also the briefcases Exhibit 1 and Exhibit 3 and the ganja Exhibit 2 and Exhibit 4 in the sealed condition in the Court during the trial. P.W. 1 R.K. Verma has proved this fact. In this view of the matter, the contention that the prosecution failed to adduce link evidence to connect the sample of ganja and also the recovered ganja Exhibit-2 and Exhibit-4 with the present crime, has no substance. The point No. 4 is also decided against the appellant.
28. Therefore, the prosecution has proved beyond all reasonable doubts that the appellant had conscious possession of the recovered 23.5 kg. ganja which was of the commercial quantity and he had no valid paper to possess the same, therefore, the conviction of the appellant u/s 20(b)(ii)(c) of the Act seems to be proper and requires no interference. The learned Additional Sessions Judge has already imposed the minimum sentence prescribed under the law, therefore, on the quantum of sentence too the appeal has no merit.
29. The appeal is, therefore, dismissed. Let the lower court record alongwith a copy of this judgment be transmitted forthwith to the Court concerned for compliance.
