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2020 (3) TMI 903 - HC - Indian LawsSmuggling - Hashish - contraband item - retraction of statements - offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 - HELD THAT:- Undisputedly, according to the evidence, recovery of Hashish (Charas) found from the rucksack which was in possession of the accused person and which is evident from the inventory and seizure list as well as from the panchnama both were duly signed by independent witnesses and the employee of Modern Travels as also by the accused persons. PW3 being the Gazetted Officer in his crossexamination stated that he was present at the time of search and seizure, such being the evidence on record, possession of the said Hashish (charas) from the custody of the accused person is beyond doubt. That apart, there were no retraction of the said fact by the appellant during the trial including examination under Section 313 of the Code of Criminal Procedure when the accused was examined. The allegation of non-seizure from the custody of the person of the accused/appellant is an afterthought and therefore, cannot be relied on. According to Section 35 of the Act, the Court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove contrary. The presumption though rebuttable but during examination under Section 313 neither any plea has been taken by the accused nor any prayer has been made to rebut the presumption under the said provision. Conviction in the present case is not based only on the confessional statement made by the accused under Section 67. His confessional statement is coupled with too many other grounds on which conviction is based - The element of threat or coercion is totally absent in the present case even no such allegation has been made and this is partly evident that he never attempted to retract this statement made under Section 67 of the act. In this case, there is no room for the appellant to advance an argument that he is an innocent person or that he has been falsely implicated in the instant proceeding. The recovered hashish (charas), from the rucksack apparently was in possession of the accused persons as evident from the inventory and seizure list and the Panchnama as well duly signed by the independent witnesses and employee of Modern Travels and after all signed by the accused persons - If this factum is taken into consideration the fact that the accused persons as well as the officers of the raiding team read with the voluntary statement of admission made by the accused persons under Section 67 of the NDPS Act together with the fact that there had been no retraction statement by them, the reasonable conclusion would be to hold the accused/appellant guilty. The order of conviction and sentence under challenge are thus confirmed - Appeal dismissed.
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