Bombay High Court
Arun Kambli vs State Of Goa As Represented By ... on 18 September, 1999
Equivalent citations: 2000(5)BOMCR654, 2000BOMCR(CRI)~, 2000(1)MHLJ780
Author: R.K. Batta
Bench: R.K. Batta, R.M.S. Khandeparkar
ORDER R.K. Batta, J.
1. The appellant was tried for possession of 211 gms. of charas in contravention of section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called 'the said Act') which is punishable under section 20(b)(ii) of the said Act. The appellant had pleaded not guilty. Prosecution had examined 4 witnesses in support of the charge. By impugned judgment dated 24th February 1999, which is subject matter of this appeal, the appellant was held guilty for possession of 211 gms, of charas under section 20(b)(ii) of the said Act. He was sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 1 lakh and in default to undergo one year simple imprisonment under section 20(b)(ii) of the said Act. The period of detention during the trial from 7th March 1998 till the date of conviction was set off in terms of section 428 of Criminal Procedure Code.
2. The prosecution case, in brief, is that P.S.I. Uday Naik P.W. 4 had received specific and reliable information that one Arun Kambli would come to sell charas at Anjuna Beach near Kashmiri shop between 5.00 p.m. to 7.00 p.m. This information was reduced into writing and a copy of the same was sent to S.P. Anti-Narcotic Cell. P.S.I. Uday Naik P.W. 4 arranged for panchas Sadguru Patil P.W. 3 and Deepak Raikar, who were informed about the said information. The raiding party consisting of P.I. Mamledar, P.S.I. Uday Naik P.W. 4, Head Constables, Police Constables and the Panchas proceeded to Anjuna where they reached at about 5.00 p.m. After they reached near the Kashmiri shop at Anjuna Beach, the accused/apellant was found sitting on a stone on the beach. The raiding party surrounded him and on inquiries being made by P.S.I. Uday Naik P.W. 4, the appellant disclosed his name as Arun Kambli. He was informed that there was specific and reliable information that he had come to sell charas to the customers and that P.S.I. Uday Naik P.W. 4 wanted to take his personal search for charas. The accused was informed before taking personal search that he had a right to be searched before a Magistrate and a Gazetted Officer and also that he had right to search the members of the raiding party including panchas. Both these offers were declined by the accused. The search commenced at 5.10 p.m. and on personal search from the right side pant pocket, two black colour substances in cylindrical shape individually wrapped in transparent cellophane paper were recovered. The said pieces were suspected to be charas. The pieces alongwith their wrappers were weighed and the weight was 11 gms. Both the charas pieces were put in an envelope, which was packed and sealed under the seal of the Anti Narcotic Cell, Panaji, Goa-2, Ashoka Emblem. The envelope was signed by both the panchas, P.S.I. Uday Naik P.W. 4 and the accused. The raiding party also found one white colour polythene bag near the said stone on which the accused was sitting. When the accused was questioned about the said polythene bag, he told the raiding party that the said bag belonged to one Kashmiri person, but, he did not know his name and address, though he could identify the said person. On search of the Polythene bag, black colour substances in different sizes cylindrical and spherical shaped were found individually wrapped in transparent papers. The said substances were suspected to be charas. In all they were 60 such pieces. They were weighed and the weight was found to be 200 gms. All the said pieces were put in an envelope, which was packed and sealed. The envelope was signed by panchas, P.S.I. Uday Naik P.W. 4 and the accused. The contraband recovered was sent for analysis to the Directorate of Food and Drugs Administration, Panaji, Goa. The contraband was analysed by Junior Scientific Officer M. Kaissare, P.W. 1, who carried out various tests and came to the conclusion that the description of contraband was dark brown substance having characteristic odour of charas; Microscopic examination revealed presence of hairs resembling 'Charas Hairs' and the Identification tests for charas, namely, Beam's Acid test, Neegm's test and Fast Blue B Salt test were positive and that in view of the above findings, the substances analysed contained charas.
3. Learned Advocate for the appellant urged before us that there is no legal evidence to establish that the appellant was in possession of polythene bag found near the stone on which the appellant was sitting; that at any rate the appellant did not know the contents of the said polythene bag; that the prosecution has failed to establish conscious possession of the appellant of the said bag containing contraband; that the prosecution has failed to establish the distance of the said polythene bag containing contraband from the place where the appellant was sitting and the evidence that the said bag was found near the appellant has to be interpreted in the light of concept of nearness spoken of by the witnesses with reference to the other evidence on record. He also pointed out that the panchanama of seizure of the said polythene bag does not show the distance of the said polythene bag from the appellant except that it was stated that it was found near the stone on which the appellant was sitting and the evidence also does not reveal as to whether the said bag was found in front, on the side or on the back side of the appellant. It was contended by learned Advocate for the appellant that if the bag was found behind the appellant, he could not be obviously saddled with its possession. Learned Advocate for the appellant also urged that the said bag was recovered from a public place (beach) and, as such, it cannot be said that it would belong to a person found closest to such bag. He also pointed out that this polythene bag was not noticed by the raiding party in the beginning, but it was noticed only after the panchanama relating to recovery on the person of the appellant had been concluded. In this respect it was urged that the evidence on record may, at the most, create grave suspicion which cannot take the place of proof and that in view of the evidence on record, two reasonable and possible views emerge as a result of which the appellant is entitled to benefit of doubt. In support of his submissions learned Advocate for the appellant places reliance on a number of rulings, namely, Patel Jethabhai Chatur v. State of Gujarat, ; Bahadul v. State of Orissa, ; Smt. Zubeda Khatoon, Bangalore City v. The Assistant Collector of Customs, Legal, Bangalore, 1991 Cri.L.J. 1392; Lucian R. Rodrigues v. State of Goa, 1995(2) Goa L.T. 122 and Natibabau Khadka v. State of Goa, .
4. In respect of recovery of 11 gms. of charas on the person of the appellant, it was urged on behalf of the appellant that the same was meant for personal consumption of the appellant in respect of which, the appellant would be liable to be punished under section 27 of the said Act instead of section 20(b)(ii) of the said Act. In this connection, it is submitted that a consolidated charge for possession of 211 gms. had been framed and as the charge was not bifurcated, namely, recovery of 11 gms. of charas from the person of the appellant and the recovery of 200 gms. from the said polythene bag, the appellant had no opportunity, at that stage, to plead that 11 gms. of charas was meant for his personal consumption; that the appellant had not denied the recovery of 11 gms. of charas from his person during the course of evidence and it was specifically suggested to P.S.I. Uday Naik P.W. 4 that the appellant was addicted to charas and that the charas found on his person was meant for his personal consumption. It was further urged that the appellant in his statement under section 313 Cr.P.C. has categorically stated that 11 gms. of charas recovered from his person was meant for his personal consumption and there is no reason why the said statement of the appellant under section 313 Cr.P.C. should not be accepted. In this connection, our attention was drawn to judgments of the Apex Court where the question of value to be attached to statement under section 313 Cr.P.C. of the accused has been dealt with. The rulings upon which reliance is placed are Hate Singh Bhagat Singh v. State of Madhya Bharat, ; State of Maharashtra v. Laxman Jairam, and Baidyanath Prasad Srivastava v. State of Bihar, . On the question of plea of personal consumption reliance is also placed on Gaunter E. Kircher v. State of Goa 1993(1) Crimes 1183 and Bashir Ahmad v. State of Goa, Criminal Appeal No. 41 of 1997 decided by a Bench of this Court. According to learned Advocate for the appellant, the onus placed on the accused under section 27 of the said Act can be discharged by a preponderance of probabilities.
5. On the basis of above submissions, learned Advocate for the appellant, therefore, contends that the conviction of the appellant is liable to be set aside and the appellant is entitled to acquittal.
6. Learned Public Prosecutor, appearing on behalf of the State, has argued that the chargesheet did refer to the two recoveries separately and, as such, no prejudice can be said to have been caused to the appellant on this score, in view of section 464 Cr.P.C. In respect of the recovery of 11 gms. from the person of the appellant, it is urged that no plea in this respect was taken by the appellant at the earliest, no suggestions were put to the panch P.W. 3 and it is only that some suggestions were given to P.S.I. Uday Naik P.W. 4 on this aspect and that only on the basis of bare statement under section 313 Cr.P.C. it cannot be said that the appellant has been able to prove that the said 11 gms. of charas was meant for his personal consumption. It was also pointed out that general suggestions that the accused is drug addict is not sufficient and that the accused has to establish that the contraband recovered from the person searched was meant for personal consumption and that the appellant has failed to prove the same. In this connection, our attention has been drawn to Division Bench rulings of this Court in Austin Gladwin Roy v. State of Goa, Criminal Appeal No. 3/1998 and Olaf Wumling v. State of Goa, Criminal Appeal No. 38/1998.
7. In respect of the recovery of the polythene bag containing 200 gms. of charas, it has been urged by the learned Public Prosecutor that even though the appellant had during the course of evidence taken the plea that the said bag did not belong to him but it belonged to one Kashmiri person, yet this theory that the polythene bag belonged to Kashmiri person was abandoned by the appellant as can be seen from answers to questions 38 and 59 of his 313 statement. Learned Public Prosecutor relied upon judgment of the Apex Court in Rattan Singh v. State of H.P., on the question of value to be attached to the statement of the accused under section 313 Cr.P.C. He pointed out that the presence of the polythene bag which contained 200 gms. of charas has not been disputed by the appellant and that the prosecution has been able to establish the close proximity of the appellant, vis-a-vis the said polythene bag and the control of the appellant over it. According to learned Public Prosecutor, the totality of facts and circumstances are to be looked and the plea of the appellant that the bag belonged to one Kashmiri cannot be accepted since it does not sound to reason that a stranger not known to the appellant, as per the case of the appellant himself, would leave contraband worth around Rs. 20,000/- unattended by the side of the appellant.
8. In reply, learned Advocate for the appellant urged, before us, that since there is nothing on record to controvert the plea of personal consumption of the appellant with reference to 11 gms. of charas, the statement of the appellant under section 313 Cr.P.C. has to be accepted and the appellant has been able to discharge the burden cast on him that the said charas weighing 11 gms. which was recovered from his person was meant for his personal consumption.
9. The question which is required to be determined first is whether the prosecution has been able to establish that the polythene bag containing 200 gms. of charas was in possession of the appellant. The word 'possesses' came up for construction before the Apex Court with reference to section 9(a) and section 10 of the Opium Act, 1878 in Inder Sain v. State of Punjab, . Sections 9 and 10 of the Opium Act provide :
"9. Any person who, in contravention of this Act, or of rules made and notified under section 5 or section 8, (a) possesses opium or (b| transports opium, or (c) imports or exports opium or (d) sells opium, or (e) omits to warehouse opium, or removes or does any act in respect of warehoused opium, and any person who otherwise contravenes any such rule, shall on conviction before a Magistrate, be punishable for each such offence with imprisonment which may extend to three years, with or without fine; and, where a fine is imposed, the convicting Magistrate shall direct the offender to be imprisoned in default of payment of the fine for a term which may extend to six months, and such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced.
10. In prosecutions under section 9, it shall be presumed, until the contrary is proved, that all opium for which the accused person is unable to account satisfactorily is opium in respect of which he has committed an offence under this Act."
The appellant therein had presented railway receipt for consignment of a parcel of apples purporting to be from one Uchana Das of Solan to one Sham Lal of Dhuri and endorsed to him by the consignee, to the parcel clerk at the Railway Station, Dhuri. The appellant got delivery of the consignment. While the appellant was carrying the parcel, police intervened and questioned him about it. The parcel was opened and it contained 4.350 gms. of Opium along with apples. The question before the Apex Court was whether the possessor of a parcel is necessarily in possession of everything found in it. It was laid down by the Apex Court that knowledge is an essential ingredient of an offence under section 9 as the word 'possess' connotes possession with knowledge and that the Legislature had not intended to make mere physical custody without knowledge an offence. In this case, the prosecution had not adduced any evidence to show that the appellant was knowingly in possession of opium and there was strictly speaking no evidence that the appellant was aware that the parcel contained any contraband substance, much less opium. It was urged on behalf of the prosecution that in most cases of unauthorised possession of opium, the prosecution will never be able to prove that the accused was knowingly in possession of the article and the burden to prove that he was not in conscious possession is of the accused by virtue of section 10 of the Opium Act, 1878. In this respect the Apex Court laid down:---
"That section (reference is to section 10 of the Opium Act) seems to proceed on the assumption, if it is proved that the accused had something to do with opium, then the burden of proof that he has not committed an offence will be upon the accused. In other words, when once it is proved in a prosecution under section 9 of the Act that the accused was in physical custody of opium, it is for the accused to prove satisfactorily that he has not committed an offence by showing that he was not knowingly in possession of opium, It would, therefore, appear that the prosecution need only show that the accused was directly concerned in dealing with opium. If the prosecution shows that the accused had physical custody of opium, then, unless the accused proves by preponderance of probability that he was not in conscious possession of the article the presumption under section 10 would arise. We do not think that the language of section 10 would warrant the proposition that for the presumption mentioned in the section to arise it is necessary for the prosecution to establish conscious possession.
In our opinion section 10 would become otiose if it were held that prosecution must prove conscious possession before it can resort to the presumption envisaged in the section. As we said section 10 proceeds on the assumption that a person who is in any way concerned with opium or has dealt with it in any manner, must be presumed to have committed an offence under section 9 of the Act, unless the person can satisfactorily prove by preponderance of probability either that he was not knowingly in possession or other circumstances which will exonerate him. The burden to account will arise only when the accused is in some manner found to be concerned with opium or has otherwise dealt with it."
10. Section 54 of the Narcotic Drugs and Psychotropic Substances Act lays down a rule of statutory presumption and reads as under:---
"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 Chapter IV in respect of -
(a) any narcotic drug or psychotropic 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
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily."
Section 54 more or less corresponds to section 10 of the Opium Act, 1878 and the interpretation of the expression 'possesses' in section 9(a) and the presumption under section 10 of the Opium Act, 1878 will apply with all force while interpreting section 54 of the Narcotic Drugs and Psychotropic Substances Act.
11. A statutory presumption of law stands on a different footing as compared to presumption of fact envisaged under section 114 of the Indian Evidence Act. In this connection, reference may be made to the judgment of the Apex Court in Dhanvantrai Balwantrai Desai v. State of Maharashtra, A.I.R. 1964 S.C. 175. The Apex Court in Dhanvantrai Balwantrai Desai v. State of Maharashtra (supra) while dealing with presumption under section 4(1) of Prevention of Corruption Act has laid down:---
"The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under section 144 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
It was also laid down therein that the question whether a presumption of law or fact stands rebutted by the evidence or other material on record is a question of fact.
12. The term 'possession' came up for interpretation with reference to section 29(b) of the Arms Act, 1959 before the Apex Court in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, 1979 Cri.L.J. 1390 and the Apex Court has laid down:---
"13. 'Possession' is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of 'possession' uniformly applicable to all situations in the contexts of all statutes. Dias & Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of 'possession'. Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edition, 1966 caused by the fact that possession is not purely a legal concept. 'Possession', implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid).
14. According to Pollock & Wright 'when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing."
15. While recognising that 'possession' is not a purely legal concept but also a matter of fact; Salmond (12th Edition, pages 52) describes 'possession', in fact', as a relationship between a person and a thing. According to the learned author the test for determining 'whether a person is in possession of anything is whether he is in general control of it'.
16. In Gunwantlal (ibid), this Court while noting that the concept of possession is not easy to comprehend, held that, in the context of section 25(a) of the Arms Act, 1959, the possession of a fire-arm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual physical possession of the fire-arm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognised that whether or not the accused had such control or dominion to constitute his possession of the firearm, is a question of fact depending on the facts of each case. In that connection, it was observed: "In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question."
13. The judgments upon which reliance has been placed by learned Advocate for the appellant speak of conscious possession of the contraband. The Apex Court in Patel Jethabhai Chatur v. State of Gujarat (supra) in the context of provisions contained in section 66(1)(b) of the Bombay Prohibition Act, 1949 has laid down that possession must be distinguished from custody and must be conscious possession.
14. A Division Bench of the Bombay High Court in Mrs. Khan Rukhsena Banoo v. B.S. Rawat, Assistant Collector of Customs, Bombay and another, 1994 Cri.L.J. 785 while dealing with section 54 of the Narcotic Drugs and Psychotropic Substances Act has laid down :---
"We find that there is a specific statutory presumption in relation to contraband, that comes within the ambit of N.D.P.S. Act. The law, therefore, makes provisions for certain legal presumptions that arise and for good reason, as otherwise, in our considered view, it would be a stere-type defence raised in every case where accused are found in possession of contraband, to contend that it was given to her by a third party, that the accused is not concerned with the baggage but is simply an innocent carrier. Experience shows that such statements are made in almost every case. In a large number of instances the racketeers and dealers deliberately pick passengers whom the authorities are least likely to suspect or persons who on the face of it may not appear to be regular smugglers and who are carriers for a small consideration.
16. It is for this reason that the law has made specific provisions under which any person found in possession of substances that come within the ambit of the N.D.P.S. Act shall be presumed to have knowledge of the nature of the contraband and the law presumes such guilty knowledge. This provision is undoubtedly harsh but it is still very necessary because in the absence of this provision in all such cases, the defence would be that the accused is an innocent carrier and that consequently, the Court should go back to the principle of conscious possession. To our mind, that principle which may apply to any other case would not be applicable here in view of the specific provisions of the present Act."
15. Keeping in view the above mentioned principle, we shall now examine the evidence on record to find out whether the appellant was in possession of the said polythene bag. The evidence on record is to the effect that raid was organised on specific and reliable information that one Arun Kambli would come to sell charas at Anjuna Beach near Kashmiri shop between 5.00 p.m. to 7.00 p.m. Acting on the said information, the raiding party had reached Anjuna Beach near Kashmiri shop and the appellant was found sitting on the beach on a stone. The raiding party surrounded him. According to pancha P.W. 3, the search was conducted after the appellant was surrounded. The surrounding of the appellant was in the shape of a circle around him which was about 1 1/2 metres in diameter. First the contraband of 11 gms. charas was recovered from the pocket of the appellant and as the search was in progress one white coloured polythene bag was noticed near the stone where the appellant was sitting. According to Pancha P.W. 3, the polythene bag was lying by the side of the appellant at just a span distance. It is no doubt true that this distance is not mentioned in the panchanama and the panchanama only mentions the fact that the said polythene bag was near the stone where the appellant was sitting. However, it is pertinent to note that the appellant was surrounded by making a circle of 1 1/2 metres diameter and the recovery of the polythene bag from near the stone where the appellant was sitting was within this narrow circle of 1 1/2 metres around the appellant. The pancha P.W. 3 had reiterated in cross-examination that the polythene bag was by the side of the stone on which the appellant was sitting. The presence of the said polythene bag is not disputed by the appellant nor is it his case that the same was planted. Though suggestions were put to the witness that the said polythene bag was not anywhere near to the appellant, yet, it was not suggested to either P.W. 3 Sadguru Patil or P.W. 4 Uday Naik, P.S.I., as to what was the distance at which the said polythene bag was lying. The stand taken by the appellant regarding the said polythene bag is that the same belonged to a Kashmiri, whose name and address he did not know but he could identify him. It is pertinent to note that though the appellant had stated, at the time of raid, that the said polythene bag belonged to one Kashmiri and suggestion to this effect was also put to panch P.W. 3 and P.S.I. Uday Naik P.W. 4, yet this theory was totally abandoned by the appellant in his statement under section 313 Cr.P.C. as can be seen from answers to questions 38 and 59 wherein the appellant has answered the said questions by saying 'I do not know'. The said questions are in relation to the fact that the appellant had told the raiding party that the said polythene bag belonged to one Kashmiri person. The appellant has failed to probabilise his stand in this respect from any material on record. As rightly argued by learned Public Prosecutor, it does not sound to reason that an unknown person would leave the polythene bag containing 200 gms. of charas worth around Rs. 20,000/- near the appellant. The prosecution has been able to establish that the said polythene bag was found by the side of the appellant and the same was under the control and dominion of the appellant. The recovery of 11 gms. of charas in the pocket of the appellant further strengthens the case of the prosecution that the charas of 200 gms. in the said polythene bag which was found by the side of the appellant did belong to the appellant. Accordingly, we are of the opinion that, in the circumstances, it has been established that 200 gms. of charas was in conscious physical possession of the appellant.
16. Coming to the recovery of 11 gms. of charas from the pocket of the appellant, the case of the appellant is that the same was meant for his personal consumption. The theory of personal consumption was evolved by the appellant during the cross-examination of P.S.I. Uday Naik P.W. 4. The theory of personal consumption was not suggested to pancha P.W. 3 though it was suggested to him that at the relevant time when the appellant was caught he was smoking charas. There is no material on record to suggest that the appellant at that time was smoking charas, which means that a false suggestion was given by the appellant to pancha P.W. 3 in this behalf. No such suggestion of smoking of charas at the relevant time by the appellant was put to P.S.I. Uday Naik P.W. 4. Bare suggestions were given to P.S.I. Uday Naik P.W. 4 that the appellant was addicted to charas, which was denied by him. The appellant has, of course, stated in his statement under section 313 Cr.P.C. that he is an addict and that 11 gms. of charas, which was found in his pocket, was meant for his personal consumption.
17. Learned Advocate for the appellant has relied upon a number of judgments of the Apes Court on the question as to the value to be attached to the statement of the accused under section 313 Cr.P.C.
18. In Hate Singh Bhagat Singh v. State of Madhya Bharat (supra) the Apex Court was dealing with section 342 Cr.P.C., 1898 which corresponds to section 313 Cr.P.C., 1973 but at that time there was no provision akin to section 315 Cr.P.C. 1973. It was laid down by the Apex Court that the version of the accused can be accepted if it is reasonable and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false.
19. In State of Maharashtra v. Laxman Jairam (supra) the Apex Court has laid down that the object of examination under section 342 Cr.P.C. is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused.
20. In Baidyanath Prasad Srivastava v. State of Bihar (supra) the Apex Court was dealing with section 342 Cr.P.C. (which corresponds to section 315 Cr.P.C. 1973) and has laid down that no presumption can be drawn against the accused in case he does not examine himself under section 342 Cr.P.C.
21. In Rattan Singh v. State of H.P. (supra) it has been laid down that the examination of the accused under section 313 Cr.P.C. is not a mere formality and the answers given by the accused to the questions put to him during such examination have a practical utility for criminal courts. It was further laid down that apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the Court in appreciating the entire evidence adduced in the Court during trial.
22. At this stage, we may again refer to section 54 of the Narcotic Drugs and Psychotropic Substances Act which gives rise to statutory presumption and rule of evidence which empowers the Court to raise a presumption against the accused that until and unless contrary is proved, that the accused has committed an offence under Chapter IV of the said Act in respect of possession of any Narcotic Drugs or Psychotropic Substances, possession of which he fails to account satisfactorily. The object of section 54 is to lighten the burden which rests on the prosecution to prove every ingredient of the offence under Chapter IV by calling in aid the presumption under section 54 of the said Act. The object behind this provision is to subordinate the interest of an ordinary citizen to the wider social and economic interest of the community and the needs of the Law enforcement agencies. The stage for raising the presumption arises when the prosecution proves that the accused had dealt with or had physical possession of the contraband drug. We have already noted that presumption under section 114 of the Evidence Act can be repelled by a reasonable and palpable explanation only, but in case of statutory presumption the accused must further prove that the explanation is true. The Apex Court in Dhanvantrai Balwantrai Desai v. State of Maharashtra (supra) has pointed out that the expression 'unless the contrary is proved' makes it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to have been proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Therefore, unless the explanation is supported by proof, the presumption created by section 54 of the Narcotic Drugs and Psychotropic Substances Act cannot be said to be rebutted. Therefore, the bare plea put forward by the appellant in a statement under section 313 Cr.P.C. would not have the effect of rebutting the presumption under section 54 of the said Act. Moreover, section 27 of the said Act is in the nature of exception with reference to section 20(b)(ii) of the said Act and the burden to bring the case within the scope and ambit of section 27 of the said Act is certainly on the accused though this burden may be lighter in the case of the accused as compared to the burden on the prosecution. Nevertheless, this burden in the light of section 54 of the said Act cannot be discharged by mere statement of the accused under section 313 Cr.P.C. The burden has to be discharged by proving that the contraband recovered is meant for personal use. In these circumstances, bare statement of the appellant under section 313 Cr.P.C. without any further proof in that behalf cannot be considered to be sufficient in order to scale down the offence from section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act to section 27 of the said Act. It is pertinent to note that possession of even small quantity is an offence under section 20(b)(ii) of the said Act unless the accused is able to establish that the small quantity found in his possession is meant for his personal consumption. Sub-section (2) of section 27 clearly postulates that the burden of proving that the small quantity of Narcotic Drug or Psychotropic Substance was intended for personal consumption shall lie on the person pleading the same. The appellant, in our opinion, has failed to discharge the burden cast on him.
23. For the aforesaid reasons, we hold that the appellant has been rightly convicted for possession of 211 gms. of charas under section 20(b)(ii) of the said Act. Accordingly, the conviction and sentence imposed on the appellant does not call for any interference and as such the appeal is hereby dismissed.
24. Appeal dismissed.