TMI Blog2015 (11) TMI 1822X X X X Extracts X X X X X X X X Extracts X X X X ..... to vitiate the proceedings conducted. Therefore, it was for the defence to rebut the presumption that the appellants were not in conscious possession of the contraband - However, the appellants have failed to rebut the presumption that they were not in conscious possession. Hence, it stands proved that the appellants were not only in possession, but in conscious possession of seized charas. There are force in the submission of the learned SPP that if the appellants were innocent then it is difficult to understand so as to why they would try to flee away from the spot when the NCB officials approached them. He relied on the cross examination of R.K. Yadav (PW-1), who stated that Accused persons tried to run away but they could run. The accused persons caught in their position as we found them on reaching the spot. . Perusal of the statements of appellants recorded under Section 67 of the Act reveal the same. Therefore, the statement of R.K. Yadav (PW-1) stands corroborated by the statements of appellants. Thus, this Court finds on the basis of the evidence brought on record, that the appellants were involved in transportation of a huge quantity of Charas. Thus, the convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced in writing and forwarded to the Zonal Director who directed to take necessary action. Search authorization was issued in favour of Sh, R.K. Yadav (PW-1) I.O. 3. A raiding party comprising of R.K. Yadav (PW-1), Vikas Kumar (PW-2), N.S. Yadav (PW-5), Avinish Kumar (PW-6), P.C. Khanduri (PW-10) and Manoj Kumar proceeded to the spot in a government vehicle and reached there at 1800 hours. One independent witness namely Nafe Singh was joined. At about 1835 hours they located a funeral van no. HR-68-1558 which was parked in the service lane near Hero Honda showroom, Udyog Nagar, Peera Garhi. Some gunny bags were being unloaded from the van into a Marshal Jeep no. HR-13-A-0170. The raiding party encircled both the vehicles and the occupants, namely, appellant Narender Singh, appellant Chand Singh and appellant Jasbir Singh. On seeing the officers, they tried to run but they were apprehended. The NCB officers told them about the information and served them notices under Section 50 of the Act apprising them of their legal right to be searched before a Gazetted officer or a Magistrate, on which they recorded their refusal. On search, two gunny bags marked as A and B were found in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii. PW-3: Sh. R.P. Meena, Chemical Examiner, JNCH, Laboratory, Nhavasheva, Distt. Raigarh (Maharashtra) iv. PW-4: Sh. R.R. Kumar, Superintendent, NCB, DZU, N. Delhi v. PW-5: Sh. N.S. Yadav, Intelligence Officer, NCB, DZU, N. Delhi vi. PW-6: Sh. Avinash Kumar, Intelligence Officer, NCB, DZU, N. Delhi vii. PW-7: Sh. Shiv Ratan Havaldar, NCB, DZU, N. Delhi viii. PW-8: Sh. S.K. Mittal, Assistant Chemical Examiner, CRCL, N. Delhi ix. PW-9: Sh. Anil Kumar Joshi, Assistant Secretary, District Red Cross Society, Panchkula, Haryana x. PW-10: Sh. P.C. Khanduri, Intelligence Officer Malkhana Incharge, NCB, DZU, N. Delhi 7. Thereafter, statements of the appellants were recorded under Section 313, Cr.P.C. wherein they controverted the entire prosecution case and pleaded their innocence. They denied their presence at the spot and the recovery, and stated that the contraband substance was planted on them. They were taken to the NCB office where signatures were taken on several blank and printed papers under threat and fear. Appellant Chand Singh stated that he was called by a person when he was working in his fields. Appellant Chand Singh stated that the statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s given to the appellants. The giving of notice under Section 50 of the Act (Ex. PW-1/B) is not stated by Nafe Singh in his statement recorded under Section 67 of the Act (Ex. PW-5/A). R.K. Yadav (PW-1), I.O. deposed that It is correct that no notice U/s 50 was again given in the office of NCB at R.K. Puram. . It is also submitted that Arrest Memo/Jamatalashi (Ex. PW-5/C) of appellant Chand Singh does not show that notice under Section 50 was recovered from him. Even the complaint (Ex. PW-2/E) does not make a mention of compliance of Section 50 of the Act. Thus, the giving of notice under Section 50 is doubtful. Moreover, the recovery memo (Ex. PW-1/E) was only attested by R.K. Yadav (PW-1) and Nafe Singh. It was not attested by any other official witnesses who are claimed to have been present at the time of recovery. Furthermore, Nafe Singh was not even examined in the Trial Court. 12. Learned counsels submit that the compliance of Section 50 is mandatory. Reliance is placed on Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, (1994) 6 SCC 569, wherein it was observed that the compliance of Section 50 of the Act is mandatory, and the searching officer is obliged to inform th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsels submit that seven bags contained in total of 148 packets i.e. 592 slabs, and only two samples taken were taken to each bag and not from each packet. It is not disclosed as to which particular packets the samples were taken from. In the recovery memo (Ex. PW-1/E), the weight of each slab recovered from the packets was not mentioned. Each packet was approximately 1 kilogram, which contained 4 slabs, yet nowhere in the recovery memo, it is mentioned whether the weight of each slab was 250 grams. It is quite possible that one slab was 100 grams or any other weight. Merely taking two samples from each bag does not establish the nature of the entire material seized. Reliance was placed on Basant Rai v. State, 191 (2012) DLT 403, wherein it was observed that if the proper procedure is not followed in the taking of samples of the seized contraband, then the benefit should go in the favour of the accused. The samples taken must represent the whole of contraband to sufficiently substantiate that the said quantity had been recovered. The officers ought to have collected the samples properly to ascertain whether the illicit contraband was found in all packets contained in the gun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that the burden to prove the foundational facts lies on the prosecution. In the present case, if was for the prosecution to prove the possession of charas with the appellants beyond reasonable doubt. The question of establishing conscious possession does not even arise, since possession has not been established in the first place. 21. Learned counsels submit that it cannot be believed that the contraband substance was tested at the spot, as the same has never been proved by the prosecution. Even the usual procedures were not followed by the NCB officials. R.K. Yadav (PW-1) in his cross-examination stated that: No document was prepared in respect of the positive test came with the test Field Test Kit, however, later on it was prepared in the office as mentioned in the Panchnama. We did not take the photographs of the vehicles parked there. Vol. There was heavy rush at the spot. I do not remember as to how much time we took in the entire proceedings conducted at the spot. We did not inform to any of the Police Station on the day of incident. We did not weigh the bags seized at the spot of their interception. It is also correct that no counting of the packets in each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the extent of introducing his own knowledge with respect to the existence of Hero Honda Showroom. Paragraph 20 on page 20 of the judgment reads as follows: The accused have produced DW1 who has stated that there did not exist any authorized showroom of Hero Honda showroom in 2005 but I myself while passing on that route has observed a Honda showroom on the right side of the road after crossing Peeragarhi chowk from Punjabi Bagh. 28. On the other hand, Mr. Satish Aggarwala, Learned Special Public Prosecutor (SPP) for NCB submits that non-recording of vehicle number of the second vehicle in the secret information (Ex. PW-2/E) is explained by R.R. Kumar (PW-4) in his cross-examination. He deposed as follows: It is correct that there is no reference of Marshall (sic.) Jeep bearing No.HR 13A 0170 in the secret information. Voluntarily at the time of issue of search warrant (sic.) the number and the detail of the other vehicle i.e. Marshall (sic.) Jeep was conveyed (sic.) to me telephonically by the informer and that is why the search authorization was issued in respect of both the vehicles. I received this information at about 4.00pm. It is correct that I have not menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Only one person agreed to become witness in this case. I had noted the names and addresses of other person whom I had contacted at that time. Nafe Singh was not known to any of us prior to the date of incident. I did not try to find out the place where Nafe Singh was residing after the incident. 34. On the aspect of seal not given to the independent witness, learned SPP submits that the cases relied on by the appellants pertain to police, other than the NCB. However, in the present case, there were paper seals which were signed by the appellants. The seals were intact till the samples were tested at the CRCL. 35. Learned SPP further submits that even though Nafe Singh independent witness, was not examined, the case of the prosecution cannot be disbelieved. It was for the defence to establish that there was a deliberate endeavour to keep the said independent witness away from the cross-examination. The appellants in the statement recorded under Section 313 Cr.P.C. had stated that they have been falsely implicated. However, it is not shown from the record that there was any motivation for false implication of the accused/ appellants with such a huge quantity of charas. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal (PW-8), chemical examiner deposed as follows: On 31.3.2006 the seven sample packets mark A1 to G1 were taken out from the strong room by sh. Shyam Singh under my supervision and direction. All the seals affixed on the sample packets were checked and it was found that the samples were sealed with the seal having impression as given on the test memo and the same were intact. The impression of the seal affixed on the sample packet were of impression NARCOTICS CONTROL BUREAU DZU 1. 40. R.P. Meena (PW-3), chemical examiner deposed that On recommendation of Sh. R.S. Malhotra, chemical examiner I received all the seven sample packets after checking the seals which were found affixed on the sample packets in the intact condition . 41. The learned SPP submits that it is evident from his statement that the samples received were not tampered with, since the seals were found in intact condition. It is also pointed out that the seal movement register (Ex. PW-1/J) and malkhana register (Ex. PW-1/Y) further substantiate that the case property had not been tampered with. The link evidence evidently shows that the samples had not been tampered with at any stage of the proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emaining amount was to be given after 10-15 days of the sale of the material. Jasbir called Narendra Singh to bring a vehicle. on 23-12-2005 Narendra Simgh along with the vehicle left for Bihar. Narendra Singh was told to contact Mohan as soon as he reached Bihar. I left Raksol, Bihar on 25-12-2005 along with Jasbir in an AC coach and reached Delhi on 26-12-2005. After reaching, Jasbir kept in touch with Narendra Singh to keep a track of his position. On 31-12-2005 Jasbir told me that Narendra Singh has reached Delhi with Charas and is standing on Peeragarhi-New Rohtak road. After which, Jasbir and I left in my Marshall Jeep HR 13 A 0170 to the designated spot as told by Jasbir. After reaching the said spot, I searched for Narendra who was standing in a service lane near Hero Honda show room (Udyog Nagar). I parked my Marshal Jeep near Narendra Singh s vehicle which was a funeral van numbered HR 68 1558 in a manner that my vehicle s back was facing his vehicle s back and started transferring charas from the funeral van to my jeep. We unloaded 2 kattas of charas when we were surrounded by some people who claimed to be the officers of Narcotics Control Bureau .they stated that they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very. Vikas Kumar (PW-2) deposed as follows: The officers had kept their surveillance of the vehicle as mentioned in the information and located the vehicle bearing no. HR 68 1558 (Funeral van) which was intercepted in the service lane near Hero Honda showroom near New Rotak Road, Delhi. It was found that some persons were unloading some gunny bags from HR 68 1558 in another vehicle bearing registration no. HR 13A 0170 (Marshall Jeep). 48. In his cross-examination, he stated that: The said Hero Honda showroom was in existence towards the left side of the main Rohtak Road when we start from Peeragarhi towards Rohtak . . I cannot tell about the front faces of the stationary vehicles as to in which direction they were standing. It was around 1 meter distance between the two stationary vehicles. . It took around one hour to complete the process of tracing vehicles and conducting the proceedings near Hero Honda showroom. I cannot tell the size of the plastic bags which have been stated to be found in marshall jeep. 49. N.S. Yadav (PW-5), another official witness to recovery and seizure of the contraband substance. He stated that: It took around 20-25 minu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statement recorded under Section 67 (Ex. PW-5/A) that he is illiterate and this is the reason N.S. Yadav (PW-5) is taking his statement as per his wish. Therefore, the reason as to why he did not write it himself is abundantly clear, and a defense that he did not write his own statement has no merit. 57. I have carefully perused the impugned judgment, considered the submissions of learned counsels on either side, perused the record and evidence laid in the case. 58. It was argued by the learned counsels for the appellants that there is an infirmity with respect to the secret information (Ex. PW-2/E) as it does not mention the vehicle number and make of second vehicle i.e. Marshall Jeep HR-13A-0170 in which appellant Chand Singh and appellant Jasbir Singh had come to take the delivery of the contraband substance. On the other hand, Learned SPP had relied upon the statement of R.R. Kumar (PW-4), wherein the so-called infirmity is explained. Perusal of the statement made by R.R. Kumar (PW-4) reveals that the secret information (Ex. PW-2/E) was conveyed to him through an informer telephonically. It is correct that the vehicle number of the second vehicle is not written. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seizure memo (Ex. PW-1/E) does not find any mention that the notice under Section 50 was given to the appellants. It is also argued that Arrest Memo/Jamatalashi (Ex. PW-5/C) of appellant Chand Singh does not show that the notice under Section 50 was recovered from him. The complaint (Ex. PW-2/E) also does not mention of the compliance of Section 50. The omission to mention the factum of the notice given under Section 50 in the arrest memo, seizure memo, or the complaint does not in any way suggest that the notice or any other document was fabricated. The recording of the factum of issuance of the notice under Section 50 in the subsequent documents is not a necessity. Learned counsels placed reliance on Ali Mustaffa Abdul Rahman Moosa (supra). There can be no quarrel with the proposition that the compliance of Section 50 of the Act is mandatory in nature, and it places an obligation on the investigating agency to inform the person being searched of his the right of being searched before a Magistrate or a Gazetted Officer. However, the said judgment does not help the case of the appellants since, it stands established that the appellants were, indeed, apprised of their rights. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry, search, seizure and arrest without warrant or authorisation.- (i) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter V A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.-For the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. (Emphasis Supplied) 65. The distinction between Sections 42 and 43 of the Act was elaborately explained by the Punjab and Haryana High Court in Dharminder Kumar v. State of Punjab, 2002 SCC OnLine P H 762, in the following way: 10. While Section 42 empowers the officers of the specified departments to carry out search, seizure and arrest in any building, conveyance or enclosed place, Section 43 deals with the similar power of seizure and arrest in public places. Powers under both these sections can be exercised if the concerned officer has reason to believe that some offence relating to narcotic drugs or psychotropic substances has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.J. 1483 has considered the scope and ambit of Sections 42 and 43 of the Act. Such Division Bench has relied upon the findings recorded by earlier Division Bench and held to the following effect:- Section 43 gives plenary power to the officers to seize in a public place or in transit any narcotic drug or psychotropic substance and to detain and search any person, whom he has reason to believe has committed the offence. The only restriction is that such powers can be exercised by the officer of any Department mentioned in Section 42. The Police Department is specifically mentioned in Section 42 and as staled above, even under Section 42 the Police Inspector in charge of the Police Station is empowered to exercise the powers under Section 42. Police Inspector Patil was therefore, an authorised officer to exercise the power and take action for seizure, detention, search and arrest under Section 43 NDPS Act. In our view, therefore, the provisions of Section 41 and 42, NDPS Act are not applicable, but the provisions of Section 43, NDPS Act are applicable for any search and seizure of the narcotic drug in a conveyance etc. and detaining and searching any person in a public plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for us to refer to certain judgments by the High Courts on the point. We shall, however, refer some of them as they are cited at Bar. 12. It may be mentioned that the appeal against the said judgment was dismissed by the Hon'ble the Supreme Court in judgment reported as Surajmal Kania Lal Soni v. State of Gujarat. 1994 Supp. (2) Supreme Court Cases 276, where challenge in appeal regarding the compliance of Section 50 of the Act was made but found no favour with the Hon'ble Supreme Court. 13. The distinction between scope of Sections 42 and 43 of the Act has also been considered by the Rajasthan High Court in Deep Chand v. State of Rajasthan, 1996 Crl. L.J. 54. In the said case the conveyance was searched in the street which is a public place and the provision of Section 42 of the Act was found not applicable to such a situation. Kerala High Court has examined this issue in Abdul Azeez v. State of Kerala, 2001 (3) RCR (Cri) 740 and in Palayan v. State of Kerala, 2002(2) RCR (Cri) 857, that under Section 43 of the Act, the empowering Officer has power to seize the articles and arrest of the person who is found to be in possession of narcotic drugs and psychotropic subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to comply with Sub-sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to public. The officer, Sub-Inspector is an empowered officer Under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non-compliance of Section 42(2) does not arise. The aforesaid view gets support from the decisions in Directorate of Revenue v. Mohammed Nisar Holia, (2008) 2 SCC 370 and State, NCT of Delhi v. Malvinder Singh, (2007) 11 SCC 314. 67. In the present case, the recovery of the contraband substance was made in a public place i.e. service lane of Rohtak road near Peeragarhi Chowk. The submission of the learned counsels has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. 21. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and Charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding. 69. I find merit in the submission of the learned SPP that it must be shown by the defense that there was a deliberate endeavour to keep the independent witness away from the cross-examination. Perusal of the record reveals that adequate steps were taken by the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th such actions. 70. The Supreme Court in State of Punjab v. Balwant Rai, (2005) 3 SCC 164, held that the question of implanting a huge quantity of the drug does not arise. The High Court of Himachal Pradesh in Sanjiv Kumar v. State of HP, 2004 (2) ShimLC 443, held that: It is not believable that the police would implicate an innocent person in such a serious case by planting a huge quantity of charas on his person. There was no enmity between the police and the accused nor one is suggested. Police had no axe to grind in implicating the accused. 71. Therefore, it cannot be accepted that NCB officials implanted a huge quantity of 148 kilograms of Charas in the vehicles occupied by the appellants. 72. It was argued by the learned counsels for the appellants that the samples extracted from the seized contraband substance were not representative, since they were not drawn as per the proper procedure. Perusal of the recovery memo (Ex. PW-1/E) reveals that seven gunny bags were recovered from both the vehicles and when they were opened, six of them (A to F) contained 20 packets each and the seventh gunny bag ( G ) was found containing 28 packets. Every packet was found con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1 kilogram, each slab was not required to be weighed. It is immaterial whether each slab was 250 grams, less or more. The fact that each packet was weighed and found to be of 1 kilogram, is sufficient. In my opinion, failure to weigh individual slabs is immaterial. It does not advance the case of the appellants in any way. 76. Thirdly, reliance was placed on Basant Rai (supra), wherein it was observed that if the proper procedure is not followed with respect to the taking of samples of the seized contraband, then the benefit should go in the favour of the accused. The samples taken must represent the whole of contraband to sufficiently substantiate that the said quantity had been recovered. The facts in respect of the seizure proceedings of the abovementioned case are in clear distinction to the facts of the present case. In the abovementioned case, the officials had recovered 8 packets containing charas. Small quantity of charas was then taken out of each of the 8 packets, mixed together and then divided into two samples weighing 25 grams each. The Court while finding fault with this procedure observed: For example, if the 08 packets were allegedly recovered from the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gister. The same was exhibited as Ex. PW-1/Y. 80. Furthermore, learned SPP pointed out to the statement of S.K. Mittal (PW-8), chemical examiner, who deposed that seven sample packets were taken out of strong room under his supervision, and all the seals were found intact. In fact, R.P. Meena (PW-3), chemical examiner, also deposed that the seals of the samples were found intact. 81. In view of the above discussed evidence, I find force in the submissions of the learned SPP. The seals which were affixed at the time of seizure were found in intact condition throughout the process. The link evidence clearly establishes that at no point of time, the samples could have been tampered with. 82. The observation of this Court in Abdul Ghaffar (supra), has to be read as a whole, and a part of it cannot be read in isolation to the rest. There are clear distinctions, which can be drawn from Abdul Ghaffar (supra) and the present case. In the said case, the proceedings conducted by the officials suffered from many material lacunae. Firstly, no endorsement was made by the accused on the notice given under Section 50, whereby he waived his right to being searched before a Magistrate or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sunita and Anita are married and my brother Jai Bhagwan who is approximately 42 years old and has studied upto 12th standard and has a truck supplies building materials. My second brother Shri Bhagwan who is approximately 31 years old has studied upto 7th standard and works as a peon in Lowa Khurd High School. Both of my brothers are also married. I had got married in the year 1980 and the name of my wife is Santosh and I have two daughters and two sons. Elder daughter Manisha studies in the third year of B.A. in the Government College, Bahadurgarh and younger daughter Babita studies in 12th standard at Noonamajra. My elder son Pradeep studies in 10th standard in Golden Valley School, Bahadurgarh and younger son Sandeep studies in the 8th standard in same school. I was eleced as the Sarpanch of the village Lowa Khurd in the year 2000 and remained Sarpanch till 2005. In the year 1986-1987, we purchased a plot measuring 375 yards in the Shakti Nagar Colony of Bahadurgarh and got a building constructed in the month of June-July, 2005 and started living in Bahadurgarh house since October, 2005. Even my brother Jai Bhagwan lives in this house with me alongwith his family and my younger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. For this reason, a minor discrepancy with respect to the recording of a different date, that to, of the next day when the proceedings are continuing till mid night is not enough to raise any doubts with respect to the proceedings. 89. It was further argued that the appellants were in custody when the statements under Section 67 were recorded. On the other hand, learned SPP submitted that there exists nothing on record to show that the appellants were in custody at the time of recording of statement. He further submitted that even if it is to be considered that the appellants were in custody, it is immaterial, since they have disclosed such facts in their statements to which only they were privy. 90. I find force in the submission of the learned SPP that there exists nothing on record to suggest that appellants were in custody. However, the submission that it is immaterial whether they were in custody, or not, is not correct. The difference in Section 25 of the Indian Evidence Act, 1872 and Section 67 of the Act is very clear. The former is with respect to the statement made while in custody whereas the latter is with respect to the statement made while not in custody. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act. 46. There is nothing on record to suggest that the appellant was compelled under threat to make the statement after he had been placed under arrest which renders such statement inadmissible and not capable of being relied upon in order to convict him. On the other hand, there is the evidence of PW9 upon which the High Court has relied in convicting the appellant. It may once again be mentioned that no question in cross-examination had been put to PW9 in this regard and the version of the said witness must be accepted as corroborative of the statement made by the accused. 47. It may also be recalled that though an application was made for retracting the confession made by the appellant, neither was any order passed on the said application nor was the same proved during the trial so as to water down the evidentiary value of the said statement. On the other hand, in the absence of such evidence on record, the High Court had no option but to proceed on the basis of the confession as made by the appellant under Section 67 of the NDPS Act. Since it has been held by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that prosecution. Explanation.-In this section culpable mental state includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 54. Presumption from possession of illicit articles.-In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is impossible, as was observed in Superintendent Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of possession uniformally applicable to all situations in the context of all statutes. 10. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. 11. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. 12. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD). 13. Once possession is established the person who claims that it was not a conscious po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spot at the relevant time. Therefore, under the circumstances, it was felt by the officials that it would be better if the proceedings are conducted at the office itself. In such a case, it cannot be said that usual procedures were not followed. 103. Learned counsels for the appellants had relied on the statement of R.K. Yadav (PW-1) to suggest that it raises a strong concern with respect to the authenticity of the proceedings. In his cross-examination, R.K. Yadav (PW-1) deposed that the proceedings were conducted in the basement of the NCB office. It is submitted by the learned counsels that as a matter of fact, the office of NCB does not have a basement at all. Therefore, the story of the prosecution with respect to the recovery and proceedings held thereafter are concocted and cannot be believed. However, the appellants have not claimed in their defence that there is no basement in the NCB office. No such suggestion was given to the prosecution witnesses during their cross-examination. In my opinion, if a finding is to be based on an aspect, it must be made on the basis of cogent evidence brought on record. The statement of the counsels for the appellants does not inspire co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (vide Sohrab and Anr. v. The State of M.P., AIR 1972 SC 2020; State of U.P. v. M.K. Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai Hirji Bhai v. State of Gujarat, AIR 1983 SC 753; State of Rajasthan v. Om Prakash, AIR 2007 SC 2257; Prithu @ Prithi Chand and Anr. v. State of Himachal Pradesh, (2009) 11 SCC 588; State of U.P. v. Santosh Kumar and Ors., (2009) 9 SCC 626 and State v. Saravanan and Anr., AIR 2009 SC 151). (Emphasis Supplied) 105. I find force in the submission of the learned SPP that if the appellants were innocent then it is difficult to understand so as to why they would try to flee away from the spot when the NCB officials approached them. He relied on the cross examination of R.K. Yadav (PW-1), who stated that Accused persons tried to run away but they could run. The accused persons caught in their position as we fou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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