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2016 (4) TMI 396 - DELHI HIGH COURT

2016 (4) TMI 396 - DELHI HIGH COURT - TMI - Seeking 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 .....

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ablished. 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-2ís 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 thre .....

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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 - CRL. A. 1598/2013, CRL. A. 1611/2013 - Dated:- 8-4-2016 - S. P. Garg, J. For the Appellant : Mr. Chetan Lokur, Advocate with Mr.Nitish Chaudhary, Advocate For the Respondent : Mr.Amit Gupta, APP. .....

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ears with fine ₹ 1 lac each under Section 20(b)(ii)(c) of NDPS Act. A-1 was separately sentenced to undergo RI for ten years with fine ₹ 1 lac under Section 25 of NDPS Act. Both the sentences were to run concurrently. 2. Briefly stated, the prosecution case as reflected in the chargesheet was that on 03.06.2011 at about 05.30 a.m. on a road near In-gate of Azadpur Mandi, Delhi, the appellants were found in possession of 90 kg of Ganja concealed in the cabin of truck bearing No. HR-55 .....

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Daily Diary (DD) No.3 (Ex.PW-7/A) at 04.10 a.m. A raiding party was constituted and vide Daily Diary (DD) No.4 (Ex.PW- 13/A) the raiding party reached Azadpur Mandi at about 05.25 p.m. The secret informer identified A-1 to be driver of the truck when he was standing outside it. Subsequently, A-2 also came to A-1 and both started talking. Thereafter, they boarded the cabin of the truck No. HR-55 G- 6471 and were apprehended. SI Bhagwan Singh introduced himself and the raiding party to both the ap .....

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st both the appellants in the Court. The prosecution examined fifteen witnesses to substantiate its case. In 313 Cr.P.C. statements, the appellants denied their involvement in the crime and pleaded false implication. The trial resulted in their conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeals have been preferred. 4. I have heard the learned counsel for the parties and have examined the file. Counsel for the appellants urged that the Trial Court did not appreciate th .....

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. The recovery is suspect. Learned Addl. Public Prosecutor urged that there are no sound reasons to disbelieve the testimonies of the police officials in the absence of any material discrepancies or infirmities in their cross-examination. 5. The prosecution examined PW-13 (SI Bhagwan Singh) who proved that secret information received from the secret informer was brought to the notice of Mr.Vivek Pathak at around 04.00 a.m. and thereafter, it was reduced into writing vide DD No.3 (Ex.PW-7/A) at 0 .....

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02.45 p.m. took over the custody of the appellants. He prepared site-plan (Ex.PW-3/A). The appellants were interrogated and their disclosure statements (Ex.PW-3/D & Ex.PW-3/G) were recorded. The truck bearing registration No. HR-55 G-6471 was seized vide seizure memo (Ex.PW-3/H). Report (Ex.PW-3/K) under Section 57 NDPS Act was forwarded by him to the senior officer. These witnesses were crossexamined at length. However, no material infirmities or discrepancies could be elicited in their cr .....

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bility to engage driver, etc. PW-9 (Talwinder Singh), Transporter, running business under the name and style of J.S.Khera Roadlines at 61, Transport Centre, Azad Pur Mandi, Delhi, admitted that the truck in question was attached with his transport by its owner Daljeet Singh and he used to manage the driver for the truck. He further informed that A-1 was employed as a driver by him in his transport about one and a half month prior to the incident. He further disclosed that on 29/30.05.2011, the t .....

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Ex.PW-8/A & Ex.PW-8/B). This witness was also not cross-examined. No suggestion was put to these witnesses if A-1 was not the driver on the said truck and A-2 was not his helper. 7. In 313 Cr.P.C. statement, A-1 admitted himself to be the driver on the truck bearing No. HR-55 G-6471 on 03.06.2011. He further admitted that he was present between 04.00 p.m. to 05.00 p.m. in the cabin of the truck along with A-2 and both of them were apprehended by the police officials at the gate of Azadpur Su .....

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zadpur Subzi Mandi while standing outside the truck at around 03.00 a.m. He admitted recovery of three kattas containing Ganja but claimed that these were recovered not from inside the cabin but from the roof top of the truck which had space to keep material. He expressed ignorance as to how A-1 had brought Ganja in those plastic kattas. He was not aware as to from where A-1 had loaded those kattas . He admitted that the total quantity of the Ganja recovered was 90 kg. 9. From the testimonies of .....

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(Ex.PW-8/A & Ex.PW-8/B) were prepared. It has further come on record that at the time of loading of litchis there was no contraband in the truck. It is further stands proved that in the raid conducted by the police officials at Delhi, three plastic kattas were recovered from the truck which contained 30 kg of Ganja each in the presence of both the appellants. 10. Regarding conscious possession of the contraband with the appellants, the Trial Court has dealt with this aspect minutely. A-1 wa .....

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e kattas containing 30 kg each of Ganja came to be loaded in his truck. It is unbelievable that A-1 being the driver of the truck would not come to know about the huge quantity of Ganja in three kattas loaded in the truck. A-1 s post-event conduct is unreasonable. In 313 Cr.P.C. statement he denied the recovery of the Ganja from the truck whereas A-2 was fair enough to state and admit that three plastic kattas containing 90 kg of Ganja were recovered from the roof top of the truck. Apparently, A .....

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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) 11 SCC 347. 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 SCC 608. As the materials brought on record would show, .....

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the truck in question, he was employed as a helper. He, however, expressed ignorance as to from where the Ganja was loaded on the truck and who had done so. It was imperative for the prosecution to establish that A-2 had conscious possession of the contraband at the time of its recovery. The Investigating Agency did not collect any evidence as to when A-2 was employed as a helper in the truck; who had employed him and what were his duties. No evidence surfaced on record if A-1 and A-2 were hand .....

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ce along with A-1 in the truck is of no consequence as admittedly, he was a helper therein. PW-4 (Daljeet Singh) or PW-9 (Talwinder Singh) did not assign any specific role to A-2. Being a helper, it cannot be inferred that he was in conscious possession of the contraband loaded on the truck for which A-1 has been found guilty. No nexus between the two has been established. In the personal search memo (Ex.PW-3/F), recovery of meagre cash of ₹ 60 from his possession, rules out if A-2 used to .....

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