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2016 (4) TMI 396 - HC - CustomsSeeking modification of conviction order - Possession of 90kg Ganja - No fair investigation carried out and also no independent public witness was associated at any stage - Held that:- mere denial of recovery of the Ganja from the truck is not enough to exonerate A-1. Once physical possession of the contraband has been proved, Section 35 of the NDPS Act comes into play and the burden shifts on the appellant to prove that he was in conscious possession of it. In such a situation, the accused is presumed to be in conscious possession as has been held in Ram Singh v. Central Bureau of Narcotics [2011 (4) TMI 1286 - SUPREME COURT]. If the accused takes a stand that he was not in conscious possession, he has to establish the same. As has been held in Dharampal Singh v. State of Punjab[2010 (9) TMI 1005 - SUPREME COURT]. As the materials brought on record would show, A-1 was found sitting in the truck, his presence in the truck has been clearly established. It is proven that A-1 was in control of articles in the truck. Possession in a given case need not be physical possession but can be constructive, having power and control over the articles. Therefore, there can be no iota of doubt that he was in conscious possession of the same. A-2’s conviction is primarily based only upon his disclosure statement. He disclosed that when they were taking tea at Peepra Kothi, an individual Lallan met A-1 and informed that he had loaded three plastic kattas containing Ganja in the truck and it would be collected by someone at Delhi. He further disclosed that Lallan had assured to pay ₹ 8,000/- for the deal. The Investigating Agency did not examine any tea shopkeeper from where the appellants had taken tea or the plastic kattas were allegedly loaded. Nothing has come on record to show if A-2 was acquainted with the said Lallan or the individual to whom the Ganja was to be delivered at Delhi. The prosecution has thus failed to prove if A-2 was in exclusive and conscious possession of the contraband. He deserves benefit of doubt. Therefore, conviction and sentence recorded by the Trial Court qua him cannot be sustained and A-2 shall be released forthwith if not required to be detained in any other case. - Appeal disposed of
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