Andhra HC (Pre-Telangana)
Pentapati Venkata Satyanarayana ... vs State on 26 February, 1999
Equivalent citations: 1999(2)ALD344, 1999(1)ALD(CRI)496, 1999(1)ALT(CRI)502, 1999CRILJ4190
Author: Vaman Rao
Bench: Vaman Rao
JUDGMENT
1. This appeal is directed against the judgment of the Additional District Judge (Special Judge for the offences under Narcotic Drugs and Psychotropic Substances Act), Vizianagaram dated 6-4-1993 rendered in CC No.22 of 1992 under which the accused has been convicted for contravention of Section 8(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 punishable under Section 15 of the Act and sentenced to undergo imprisonment for 10 years and also to pay a fine of Rs. 1,00,000/-and in default of payment of fine to undergo rigorous imprisonment for two years.
2. The facts relevant to the appeal may be stated briefly as follows :
On 28-3-1988 at about 10.00a.m. on the strength of some information PW1 the Excise Sub-Inspector, PW5 the then Assistant Commissioner of Enforcement, PW2-another Excise Sub-Inspector, PW4-the then Excise Sub-Inspector, Enforcement, Visakhapatnam PW5, the Assistant Commissioner of Excise, Enforcement, Vizag and some other staff members went to the premises of Kranthi Road Transport Private Limited, Vizianagaram situated in Bonda Street. The accused was the branch-in-charge of that company at Vizianagaram, who was present when the party of the above officials went there. According to the evidence of these witnesses, they found 18 bags out of which five contained 'poppy straw' (gasagasaala chekka) and other 13 bags contained 'poppy powder' (gasagasaala Podi). The Officers questioned the accused about the possession of those substances. The accused did not give any reply. Each bag was 30 kilo grams in weight. PW4, the Enforcement Sub-Inspector took samples of 25 grams from all the 18 bags in packets. PW4 prepared 36 identification slips which were attested by PWs.l and 4. PW4 affixed his seal to those identification slips. Those slips were affixed on all the 18 bags and also on the 18 sample packets. MOs. 1 to 5 are the bags of poppy straw and MOs.6 to 18 are the 13 bags of poppy powder. MOs. 1 to 18 were seized by PW4 who also arrested the accused. MOs. 19 to 23 have been identified as sample packets containing poppy straw and MOs.24 to 36 are identified as sample packets of poppy powder. The accused attested identification slips. PW4 drafted the special report in the premises of the transport company. PW1, PW2 and PW4 and the accused attested the identification slips. PW4 drafted the Special Report in the premises of the transport company. PWs.l, 2 and 4 and the accused attested the Special Report (Ex.P1). The accused along with MOs.1 to 36 were handed over to the Excise-Sub-Inspector, Vizianagaram.
3. PWs.l, 2, 4 and 5 uniformly deposed to the above facts. According to PW3, the then Excise Inspector Vizianagaram on receiving Ex.P3 at 1.00 p.m. on 28-3-1988 along with MOs.l to 36, he registered a case in Crime No.33 of 1987-88 under Section 15 of the Act of 1985. Ex.P2 is the First Information Report. He sent MOs.19 to 36 for Chemical analysis through Judicial First Class Magistrate, Vizianagaram. Ex.P3 is the carbon copy of letter addressed to the Magistrate, Vizianagaram requesting him to send 18 samples packets to the Chemical Analyst, Visakhapatnam. The Additional Judicial First Class Magistrate, Vizianagaram directed under Ex.P4 to send the sample of the Chemical Examiner. According to the analyst, the substance in the sample packets MOs.19 to 23 contained sample pieces of poppy straw (gasagasaalu chekka) and sample packets MOs.24 to 36 contained powder parts of poppy straw. The evidence to the above effect has been given by PWs. 1, 2, 4 and 5.
4. On this evidence, the learned Sessions Judge, Vizianagaram convicted and sentenced the accused as above.
5. The question for consideration is whether on the basis of evidence on record, the prosecution has succeeded in bringing home the charge against the accused beyond reasonable doubt.
6. It is contended on behalf of the Public Prosecutor that this evidence establishes that the accused as branch-in-charge of the Kranthi Transport Company was in possession of certain bags, which analysis have been found to contain poppy straw and poppy straw powder and as such the accused must be held to be in possession of a narcotic drug within the meaning of Section 2(xiv) of the Narcotic Drugs and Psychotropic Substances Act, which amounts to contravention of Section 8 of the NDPS Act punishable under Section 15 of the said Act.
7. Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is extracted below for ready reference:
"8. Prohibition of certain operations :--No Person shall
(a) .....
(b) .....
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or Psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided further that nothing in this Section shall apply to the export of poppy straw for decorative purposes."
Thus, the essence of the charge against the appellant is that he was found in possession of poppy straw and poppy straw powder which it is not denied satisfied the requirement of definition of narcotic drug within the meaning of Section 2(xiv) of the NDPS Act.
8. The learned senior Counsel-Sri C. Padmanabha Reddy, however, contends that the trial Court erred in holding that the prosecution has proved that the appellant was in possession of the narcotic drug. Elaborating the argument, the learned Counsel subm its that it is not mere possession in the sense of the bags containing the narcotic drugs being found in the premises of which the appellant was said to be incharge, which satisfies the requirement of possession as contemplated under Section 8(c) of the NDPS Act. When mere possession itself is enacted as an offence, the possession for constituting the offence must be conscious possession.
9. In support of this contention, the learned Counsel relies on the judgment in Kakkhan v. State of MP., 1990 Crl. LJ 1119, wherein it was held that possession for the purpose of NDPS Act must not be in the sense of physical control over the article but the second element of animous or intent to possess must also be there. Thus, it was held that only conscious possession invites penal consequences. In that case it was held that in respect of contraband articles concealed in the body of the vehicle, the driver of the car cannot be ascribed with the possession of that article unless there are circumstances to show that he had knowledge of such concealment.
10. While dealing with the provisions of Terrorists and Disruptive Activities (Prevention) Act, the Supreme Court in the case of Sanjay Dutt v. State Through CBI, Bombay, 1994 (3) Crimes 207, held in the context of possession used under Section 5 of the TADA Act that the possession must mean possession with requisite mental element i.e., it must be conscious possession and not mere custody without awareness of nature of such possession. It was thus held under Section 5 of the TADA Act, possession must be conscious possession. It is further argued that in this case even the fact that the contraband material was in physical possession of the accused has not been proved, leaving aside the question of conscious possession.
11. The learned Public Prosecutor on the other hand sought to rebult this argument by pointing out that physical possession of the accused has been proved by the evidence on record and once such physical possession is proved, Section 35 of the NDPS Act comes into play and the burden shifts on to the appellant/accused to prove that he did not have the requisite mental state.
12. To answer the questions raised, it is necessary to closely scrutinize the evidence of PWs.l, 2, 4 and 5 who were the officers of the Excise Department who conducted the raid over a goods transport office i.e., Kranthi Road Transport Private Limited situated at Bonda Street at Vizianagaram. Ex.Pl is the Special Report in which the facts relating to raid and seizure of contraband have been recorded. It is in the evidence of PWs. 1, 2,4 and 5 that going from Visakhapatnam, they reached Vizianagaram at about 10.00 a.m. and straight away went to the said transport office. They found 18 bags which were seized. Five of those bags i.e., MOs.1 to 5 contained 'poppy straw' (gasagasaalu chekka) and MOs.6 to 18 contained 'poppy straw powder' (gasagasaalu podi). PW4, the then Excise Sub-Inspector, Enforcement who was a 'member of the raid party, seized those contraband articles and prepared Ex.P1 on which himself, PWs.1, 2 and the accused attested.
13. It is pertinent to mention here that the premises where from the contraband is said to have been recovered is an office of Transport Company called 'Kranthi Road Transport Private Limited'. It is in the evidence that it is a Company registered under the Companies Act. It is also in evidence that the Transport Company has Brandies at various places. Apparently, the Company is a common carrier. The evidence of PWs.1, 2, 4 and 5 is that when they went to the premises, the accused was there. According to these witnesses, the accused was the incharge of that Branch of Transport Company. The prosecution has not produced any documents from the office of the Transport Company to show that the accused was really in-charge of that Branch : These witnesses further stated that when the accused was questioned he did not give any reply. However, during cross-examination, PW1 and others stated that it was the accused who represented to them that he was in-charge of the transport office. This is a very significant statement. But a perusal of Ex.P1 would disclose that the fact that the accused represented to the Excise Officials that he was in-charge of the Branch has not been mentioned in Ex.Pl at all. What is recorded is when they enquired with the "Branch Manager" about the bags, he did not give correct reply. Thus, the only evidence as given by PWs.l, 2, 4 and 5 that the accused was Branch Manager or in-charge of the transport office in question is the mere fact of the presence of the accused when the raid party went to the office. Mere statement from these witnesses that the accused was in-charge of the Branch without any material in support of that assertion would be of no avail. This is particularly so in view of the defence of the accused that in fact his brother was the branch manager of that Branch. DW1 said to be one of the employee of that Branch deposed that the accused was not the branch manager of that Branch and some other person was the Branch-incharge. From the mere fact of physical presence of the accused at the relevant time the possession of the contraband seized from the premises cannot be tagged on to the accused.
14. Further, as stated above, the premises in question was an office and godown of Transport Company which is a common carriage. It is common knowledge that as a common carrier it would receive articles for transport to other places. They will also receive articles booked at other places and all these transactions are evidenced by documents. It is admitted by PW1 that the Kranthi Transport Private Company Limited would take the goods from consignors, transport the goods and deliver them to consignees. He also admits that the said Company maintains way-bills, lorry receipts, receiving registers and despatch registers in respect of stocks booked and received. Surprisingly, he did not verify the stock in the premises of the transport Company in accordance with the registers maintained by them. It is a clear case of failure to investigate properly. No statutory provision or prevailing commercial practice has been brought to the noticed of the Court which requires the common carrier to inspect the goods by opening the bags before accepting them for transportation. Thus, there is every possibility that bags found in the Kranthi Transport Company's office at Vizianagaram either might have been booked there for transporting to other place by some customer, or they might have been received from their other offices for delivering to local customers or for onward transmission to any other place.
15. However, PW2 in his cross-examination stated that PW4, M. Surya Rao, the then Excise Inspector, Enforcement, who was also in the team which raided the premises had verified all the bills, stock books etc., in the Kranthi Road Transport Corporation Private Limited to ascertain from where MOs.l to 18 have been transported. But, surprisingly, PW4 states that he did not verify the records. If it was verified as to from where the seized bags originated, the result of such verification ought to have been recorded. Moreover, the possession a common carrier in respect of consignment of goods made over to them for transportation is in the nature of possession of a bailee. Such possession cannot be pressed into service for fastening criminal liability where mere possession itself has been enacted as an offence, unless the prosecution establishes that the common carrier had the knowledge that the bags contained contraband material such possession as a bailee, which is acquired during a performance of obligations of a common carrier, cannot constitute 'possession' for the purpose of Section 8(c) of the NDPS Act.
16. In these circumstances, it is not possible to hold that the prosecution succeeded in proving that the accused was even in physical custody of the contraband articles seized. Even assuming that those bags were in the premises, unless the accused had the knowledge as to the contents of the bags, it cannot be held that he was in possession of those goods, muchless in conscious possession of those goods.
17. The plea based on Section 35 of the NDPS Act on behalf of the prosecution appears to be misconceived. Section 35 of the NDPS Act reads as follows:
"35. Prosecution of Culpable Menial Stale :--(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in 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."
It is true that the provisions of Section 35 of the NDPS Act constitute a remarkable departure from the existing principles of criminal jurisprudence. According to the principles of criminal jurisprudence, the prosecution is required to prove beyond reasonable doubt every element and every ingredient which is essential to constitute an offence. But, Section 35 of the NDPS Act engrafts a deviation from the general principle and it contemplates that where in any prosecution under the NDPS Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state and it will be for the accused to prove by way of defence that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation to Section 35 of the NDPS Act clarifies that "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. Sub-section (2) of Section 35 of the Act is another far-reaching departure from a deep rooted principle of "criminal jurisprudence under which while the prosecution is required to prove every element and ingredient beyond reasonable doubt but the fact in respect of which burden of proof lies on the accused, it need not be proved by the accused beyond reasonable doubt and it would be enough if the accused is able to show by preponderance of probability, existence of circumstances pleaded by him. Subsection (2) of Section 35 of the NDPS Act enacts that in regard to matters falling under Section 35 of NDPS Act, the accused has to prove a fact or circumstance pleaded as defence by him beyond reasonable doubt. The learned Public Prosecutor contends that in the light of this provision, in this case it must be held that the accused failed to prove beyond reasonable doubt that he had no knowledge that he was in possession of contraband articles.
18. The provisions of Section 35 of the NDPS Act would be attracted where in the first place the prosecution has succeeded in proving all the ingredients of the offence against the accused beyond reasonable doubt except the requisite culpable mental state. Section 35 of the Act cannot be invoked to dispense with proof of the offence by the prosecution. Section 35 of the Act would come into play when the prosecution has established the ingredients of the offence but the accused seeks to displace the influence of guilt by pleading a fact or circumstance which has the effect of disproving a fact which constitutes an ingredient of the offence.
19. The facts in this case would disclose that the prosecution has not succeeded in proving that the accused was in the custody of the articles in question. In the absence of any investigation and verification as to whether the seized bags had been received in the transport office at Vizianagaram, having been booked at their office at other places and in the absence of any verification whether those bags were booked at Vizianagaram itself for being transported to any other place, are finding of the bags in the Transport Company office does not prove the possession of the person in-charge of the office (even assuming that the accused was the person-in-charge of the office which itself is doubtful).
20. In this regard it may be mentioned that it has been suggested during the cross-examination of PW2 that out of the seized bags, 10 were booked as Tea Dust at Kranthi Road Transport Corporation at Tuni on 3-12-1987 under LR No.90221, 3 bags were booked at house-hold articles at Anakapalli Kranthi Road Transport Office under LR. No.26546 and five of those bags were booked at house hold articles at Kranthi Road Transport Office at Rajahmundry under LR.No.81239. There is no attempt on the part of the prosecution to verify the necessary documents with reference to this aspect. In this connection it may be mentioned that after the seizure of the contraband articles, the matter was entrusted to one Swayam Nadham the Inspector of Excise, Enforcement who is said to have conducted further investigation in this case. The said Inspector has not been examined. No further material except the record relating to seizure have been placed on record to show as to what was revealed by further investigation in respect of those articles. Under the circumstances, the prosecution has woefully failed to prove the possession of the accused in respect of the contraband articles seized. The question of invoking Section 35 of the Act for shifting the burden of proof on the accused to prove that he did not have the necessary knowledge in respect of those contraband articles, therefore, does not arise.
21. There is another infirmity in the prosecution case which has to be mentioned. In this connection, it is relevant to extract Section 42 of the NDPS Act which reads as follows:
"42. Power of Energy, Search, Seizure and Arrest without warrant or authorisation :
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the department of Central Excise, Narcotics, Customs, Revenue, Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an office 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 personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset-
(a) enter into and search any such building, conveyance or place;
(b) in case or resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance :
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed placed at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy (hereof to his immediate official superior."
Ex.P1, the Special Report, under which the contraband articles were seized, mentioned the fact that raid was conducted on the strength of information received.
22. Section 42(1) of the NDPS Act contemplates, as held by the Supreme Court in the case of Stale of Punjab v. Balbir Singh, , that where the office empowered under Section 42(1) of the NDPS Act proceeds to search any premises on the basis of information given by any person, such information should necessarily be taken down in writing. The conclusions of the Supreme Court have been summarised in para 26. The relevant portion in para 26 is extracted below:
"(2C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such office has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial"
In this case, PW2, one of the officers in the raid party, in his cross-examination stated that the Assistant Commissioner of Excise, Enforcement (PW5) noted all the particulars about the information received by him in his diary. But, PW5 himself did not even whisper about his having recorded any such information. He, further, stated in his crossexamination that he informed about the incident to his superiors. But no record has been placed before the Court to show that he recorded prior information received by him into writing. No material has been placed except the statement of PW5 that he informed about the incident to his superiors. He has not stated as to when he sent such an information. No record pertaining to sending of such information to his superior officers has been placed on record. To that extent, it must be held that there is a contravention of Section 42(1) and (2) of NDPS Act. As can be seen from the extract of judgment of the Supreme Court in Balbir Singh's case (supra), non-recording of information received into writing is itself a contravention of Section 42(1) of the NDPS Act. Sub-para (3) of para 26 of the Supreme Court judgment would show that under Section 42(2) of the NDPS Act, such empowered officer shall take down any information in writing and send a copy thereof to his immediate official superior. The relevant portion is extracted hereunder for ready reference.
"26(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects me prosecution case. To that extent it is mandatory. But, if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case."
In this case, as stated above, no material has been placed before the Court to substantiate the fact that a copy of such record has been sent to his superior officers concerned immediately. In the result, it has to be held that there is a contravention of Section 42(1) and 42(2) of the NDPS Act. For this reason also, the trial must be held to have been vitiated and the conviction must be held to be unwarranted.
23. In the result, the appeal is allowed. The conviction of the accused for the offence under Section 8(c) read with Section 15 of the NDPS Act and the sentence imposed therefor are set aside. The fine amount, if paid, shall be refunded to the appellant.