Madhya Pradesh High Court
Rajeev Verma vs Central Narcotics Beuro on 23 October, 2017
1 CRA 743/2004 & 764/2004
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Hon'ble Shri Justice G. S. Ahluwalia
Cr.A. 743/2004
Abdul Aziz
Vs.
Central Narcotics Bureau
And
CRA 764/2004
Rajeev Verma
Vs.
Central Narcotics Bureau
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Shri Rajmani Bansal, counsel for the appellants in CRA Nos.
743/2004 & 764/2004
Shri D. S. Chauhan, Panel Lawyer for the Union of India/ respondent
in CRA Nos.743/2004 & 764/2004.
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JUDGMENT
(Delivered on 23/10/2017) By this Common Judgment, Cr.A. No.764/2004 filed by co- accused Rajeev Verma shall also be disposed of. The record of the Trial Court is available in the file of Criminal Appeal No.725/2004 filed under Section 454 of Cr.P.C. against the order of confiscation passed by the Trial Court.
2. These Criminal Appeals have been filed under Section 374 of Cr.P.C. against the judgment and sentence dated 27-10-2004 passed by Special Judge (N.D.P.S. Act), Gwalior in Special Sessions Trial No. 2/2002 by which the appellant Abdul Aziz has been convicted under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 and the appellant Rajeev Verma has been convicted under Sections 8/21, 8/29 of Narcotic Drugs and Psychotropic Substances Act,1985 and have been sentenced to undergo the rigorous 2 CRA 743/2004 & 764/2004 imprisonment of 10 years and a fine of Rs.1 lacs with default imprisonment. The Trial Court has acquitted co-accused Bhupendra Dubey, but no appeal has been filed challenging the acquittal of Bhupendra Dubey.
3. The necessary facts for the disposal of the present appeals in short are that on 6-9-2001, a team of Central Narcotics Bureau, Gwalior under the leadership of Keval Singh Sub-Inspector, went to A.B. Road, and was carrying out routine checking of vehicles in front of Bobby Restaurant. At about 5:30 in the morning, one bus of Vivek Travels came from Indore to Gwalior. The said bus was stopped. Usman and Ram Krishna Shrivastava were the Driver and the Conductor. After giving them the introduction, Keval Singh along with other team members entered inside the bus. One person who was sitting on seat no.28 appeared to be suspicious. He disclosed his name Hansraj, son of Bhavanlal, resident of village Gangati, P.S. Cheepavadod, Distt. Bara (Rajasthan). Hansraj was brought to Bobby Restaurant, where he was apprised of his right under Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985. Hansraj opted for his search by a Gazetted officer, therefore, Shri D. Banerjee, Superintendent, Central Narcotics Bureau was called. Hansraj was personally searched by Superintendent, Central Narcotics Bureau. On physical search, one polythene was found under his shirt. A light pink powder was found. Test was carried out on the spot with the help of kit and it was found that the powder was heroine. The contraband was weighed. Total weight of the contraband was 250 gms. Two samples of 5 gms each were prepared. Hansraj was arrested. He was brought to the office of Commissioner, Central Narcotics Bureau. The F.I.R. was registered. The seized contraband was kept in Malkhana. The samples were sent to Govt. Opium and Alcholide Factory, Neemach. On interrogation, he disclosed that he had brought the contraband to sell the same to co-accused Rajeev Verma, who is resident of Itawah. He also disclosed that on earlier 3 CRA 743/2004 & 764/2004 occasion also, he had sold 500 gms of Heroine to Rajeev Verma. He also disclosed that if the premises of Rajeev Verma is searched, then more Heroine can be seized. Accordingly, under the leadership of D. Bhattacharya Inspector, a team was constituted. Rajeev Sharma, Lakhan Raje, Sub-Inspector, and other staff went to Itawah along with Hansraj. A team from Lucknow also reached there. At about 7 A.M., the investigation team went to the house of Rajeev Verma and informed that they have come to search his house and the factory. He was also apprised of the fact that he can give search either to the Executive Magistrate or Gazetted Officer also. Rajeev Verma, agreed to give the search to Mahavir Singh, Inspector. The house of Rajeev Verma was searched, however, nothing was found. Thereafter, they went to the factory premises, known as Khadi Gramodyog Sansthan Chandanpur Road, at about 10 A.M. After entering inside the factory premises, they found one Almirah of iron on the right side of the entrance gate. The key of the said Almirah was not made available by Rajeev Verma. With the consent of Rajeev Verma, the lock of the said Almirah was broke open and light brown coloured powder was found, which was disclosed by Rajeev Verma as Heroine. The powder was tested on the spot with the help of testing kit and it was found to be Heroine. The contraband was weighed and the total weight of the contraband was 1 kg. 450 gms. Two samples of 5 gms each were prepared. The contraband and the samples were sealed. Thereafter, one room which was situated on the left side of the entrance gate, was opened and certain chemicals, scale and weight, empty bottles, plastic tub etc. which were used for preparing Heroine were seized. The co- accused Rajeev Verma was arrested, and his statement was recorded. In his statement, Rajeev Verma, disclosed that the appellant Aziz used to bring certain material for the preparation of Heroine. The investigating team came back to Gwalior and as per Section 57 of Narcotic Drugs and Psychotropic Substances Act, 1985, a report was sent. The seized samples were sent to Opium and Alchalide Factory, 4 CRA 743/2004 & 764/2004 Neemuch. The appellant Rajeev Verma in his statement disclosed that he was preparing Heroine with the help of appellant Aziz. On 16-9- 2001, the house of Abdul Aziz was searched, however, nothing objectionable was found. Telephone bills were found and were seized. On 17-9-2011, the appellant Abdul Aziz appeared in the office of Commissioner, Central Narcotics Bureau on his jeep No. M.P. 16B 7675. The appellant Abdul Aziz made certain admissions and accordingly, he was also arrested and the jeep was seized. The call details of the appellant Abdul Aziz were checked and it was found that he had talked to the co-accused Bhupendra and it was found that Bhupendra Dubey is also involved in the offence. The Maruti Car of Bhupendra Dubey was seized. Co-accused Arjun Singh @ Lalla was also found involved in the offence. The house of Arjun Singh and Bhupendra were searched, but nothing objectionable was found. The notices were sent under Section 67 of N.D.P.S.Act but they did not appear. Therefore, a complaint was filed against all the accused persons, including the appellants Abdul Aziz and Rajeev Verma.
4. Co-accused Hansraj absconded during the pendency of the Trial and Perpetual Arrest warrant was issued. It appears that subsequently he was arrested and was convicted by judgment and sentence dated 29-1-2008. He had also filed a Criminal Appeal No. 255/2008 before this Court, which has been dismissed by this Court by judgment dated 9-2-2017. However, it appears that since, the co-accused Hansraj had already undergone the sentence awarded by the Trial Court, and was only undergoing the default jail sentence, therefore, the counsel for the appellant Hansraj did not press the appeal on merits.
5. It is not out of place to mention here that the question of territorial jurisdiction of the Trial Court was raised by the appellant Rajeev Verma, which was rejected by Trial Court order dated 20-6- 2002. The appellant Rajeev Verma filed criminal revision No.292/2002 whereas appellant Abdul Aziz filed Criminal Revision No. 819/2003. The Criminal Revision No. 292/2002 filed by Rajeev 5 CRA 743/2004 & 764/2004 Verma was dismissed as withdrawn by order dated 13-3-2003, whereas the Criminal Revision No. 819/2003 filed by Abdul Aziz was dismissed on merits by order dated 21-4-2003.
6. The Trial Court by order dated 23-6-2003 framed charges under Sections 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985, against the appellant Aziz, co-accused Hansraj and under Section 8/21 and 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 against the appellant RajeevVerma.
7. The appellants abjured their guilt and pleaded not guilty.
8. The prosecution examined Usman (P.W.1), Lalji Verma (P.W.2), Ramprasad Vishwakarma (P.W.3), Brajesh Kumar Rajput (P.W.4), Durgalal Sharma (P.W.5), Rajnish Sharma (P.W.6), Vijay Singh (P.W.7), Keval Singh (P.W.8), M.L. Prajapati (P.W.9) and Mahavir Singh (P.W.10). The appellants Abdul Aziz (D.W.1) and appellant Rajeev Verma (D.W.4) and examined Sunder Singh (D.W.2), Sudhir Kumar (D.W.3).
9. The Trial Court by Judgment and sentence dated 27-10-2004 convicted the appellant Rajeev Verma for offence under Section 8/21 and 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 and convicted the appellant Abdul Aziz for offence under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985. Sentence to the appellant Rajeev Verma was awarded for offence under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 only and both the appellants were awarded jail sentence of rigorous imprisonment of 10 years and a fine of Rs.1 lac with default imprisonment.
10. Being aggrieved by the judgment and sentence passed by the Trial Court, the appellants have filed the present appeals.
11. It is submitted by the Counsel for the appellants that against the appellant Abdul Aziz, except the statement of the appellant Rajeev Verma, as well as appellant Abdul Aziz himself recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985, 6 CRA 743/2004 & 764/2004 no other evidence is available on record. So far as the appellant Rajeev Verma is concerned, there is nothing on record that he was in exclusive and conscious possession of the contraband. He was working as Secretary of Arunodaya Khadi Gramodyog Sewa Sansthan but he had already submitted his resignation prior to the incident and therefore, he is not responsible for the seizure of the contraband from the factory premises. It is further submitted that Section 42(2) of N.D.P.S. Act, 1985 has not been complied with therefore, the prosecution stands vitiated. It is further submitted that there is no entry in the Malkhana registry pointing out that the seized article was sent to the Court.
12. Per contra, it is submitted by the Counsel for the respondent, that the statement of an accused recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 is admissible and would not be hit by Sections 25, 26 and 27 of the Evidence Act, therefore, the Trial Court has rightly convicted the appellant Abdul Aziz. So far as the appellant Rajeev Verma is concerned, it is submitted that since, the appellant Rajeev Verma was the Secretary, therefore, he was the custodian of the Almirah. At the time of search also, he never disclosed that he has already submitted his resignation. He also never disclosed that he is not the custodian of the keys of the Almirah. The defence of resignation is an after thought. The appellant Rajeev Verma was in exclusive and conscious possession of 1 Kg. 450 gms of Heroine, being the custodian of the Almirah.
13. Heard the learned Counsel for the parties.
14. Before considering the submissions made by the Counsel for the parties, it would be necessary to consider the nature of statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and whether the same is admissible in the light of Section 25 of Evidence Act?
15. Section 53 of Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under :-
7 CRA 743/2004 & 764/2004 ''53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station.--(1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence[or any other department of the Central Government including para-military forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.
(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise [or any other department] or any class of such officers with the powers of an officer-in- charge of a police station for the investigation of offences under this Act.'' Thus, it is clear that the officers of Central Narcotics Bureau have been invested with the powers of an officer-in-charge of a police station for the investigation of offences under this Act. Section 25 of Evidence Act, 1872 reads as under :-
''25. Confession to police officer not to be proved.--No confession made to a police officer, shall be proved as against a person accused of any offence.''
16. The Supreme Court in the case of Kanhaiyalal Vs Union of India, reported in (2008) 4 SCC 668 has held as under :-
''45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case [(2003)8 SCC 449] with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a "police officer" within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a 8 CRA 743/2004 & 764/2004 confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.''
17. A similar view has been adopted by the Supreme Court in the case of Ram Singh Vs. Central Bureau of Narcotics reported in (2011) 11 SCC 347.
18. However, the Supreme Court in the case of Noor Aga Vs. State of Punjab reported in (2008) 16 SCC 417 has held as under :-
''72. When, however, the Customs Officers exercise their power under the Act, it is not exercising its power as an officer to check smuggling of goods; it acts for the purpose of detection of crime and bringing an accused to book.
73. This Court in Barkat Ram [AIR 1962 SC 276] left the question, as to whether officers of departments other than the police on whom the powers of officer in charge of a police station under Chapter XIV of the Code of Criminal Procedure has been conferred are police officers or not for the purpose of Section 25 of the Act, open, stating: (AIR pp. 283-84, para 34) "34. In Oxford Dictionary, the word 'police' is defined thus:
'The department of Government which is concerned with the maintenance of public order and safety, and the enforcement of the law; the extent of its functions varying greatly in different countries and at different periods. The civil force to which is entrusted the duty of maintaining public order, enforcing regulations for the prevention and punishment of breaches of the law, and detecting crime; construed as plural, the members of a police force; the constabulary of a locality.' Shortly stated, the main duties of the police are the prevention and detection of crimes. A police officer appointed under the Police Act of 1861 has such powers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State's power and duties increased manifold, acts which were at one time considered to be innocuous and even 9 CRA 743/2004 & 764/2004 praiseworthy have become offences, and the police power of the State gradually began to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes, etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime? If he does, he will be a police officer."
74. Section 25 of the Evidence Act was enacted in the words of Mehmood, J. in Queen Empress v.
Babu Lal [ILR (1884) 6 All 509] to put a stop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confession during the trial of the accused persons. It was, therefore, enacted to subserve a high purpose.
75. The Act is a complete code by itself. The Customs Officers have been clothed with the powers of police officers under the Act. It does not, therefore, deal only with a matter of imposition of penalty or an order of confiscation of the properties under the Act, but also with the offences having serious consequences.
76. Section 53 of the Act empowers the Customs Officers with the powers of the Station House Officers. An officer invested with the power of a police officer by reason of a special statute in terms of sub-section (2) of Section 53 would, thus, be deemed to be police officer and for the said purposes of Section 25 of the Act shall be applicable.
77.A legal fiction as is well known must be given its full effect. (See UCO Bank v. Rajinder Lal Capoor [(2008) 5 SCC 257].)''
19. The Supreme Court in the case of Raju Premji Vs. Customs, 10 CRA 743/2004 & 764/2004 NER Shillong Unit reported in (2009) 16 SCC 496 has held as under:-
''23. We would, for this purpose, assume that such confessions are not hit by Section 25 of the Evidence Act, 1872 but even then they must receive strict scrutiny. This Court in Kanhaiyalal v. Union of India [(2008) 4 SCC 668], upon taking into consideration number of decisions, held as under:
"43. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava case [AIR 1963 SC 1094]. The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence."
24. Whether a confessional statement is voluntary and free from any pressure must be judged from the facts and circumstances of each case. This Court in Mohtesham Mohd. Ismail v. Enforcement Directorate [(2007) 8 SCC 254], has held as under:
"20. We may, however, notice that recently in Francis Stanly v. Narcotic Control Bureau [(2006) 13 SCC 210] this Court has emphasised that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closer scrutiny. It is furthermore now well settled that the court must seek corroboration of the purported confession from independent sources."
25. In Noor Aga v. State of Punjab [(2008) 16 SCC 417] this Court held: (SCC p. 457, para 74) "74. Section 25 of the Evidence Act was enacted in the words of Mehmood, J. in Queen Empress v. Babu Lal [ILR (1884) 6 All 11 CRA 743/2004 & 764/2004 509] to put a stop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confession during the trial of the accused persons. It was, therefore, enacted to subserve a high purpose".
26. In any event if they were in custody of the police officers as also the Customs Officers, although they were not accused in strict sense of the term, any confession made by them would not be admissible in terms of Section 26 of the Evidence Act, 1872.''
20. The Supreme Court in the case of Nirmal Singh Pehlwan Vs. Inspector, Customs reported in (2011) 12 SCC 298 has held as under
:-
''We also see that the Division Bench in Kanhaiyalal case had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis-à-vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point of time is Noor Aga case [(2008) 16 SCC 417] which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with.''
21. The Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu reported in (2013) 16 SCC 31 has held as under :
''40. In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhaiyalal case [(2008) 4 SCC 668]. It is more so when this Court has already doubted the dicta in Kanhaiyalal [(2008) 4 SCC 668] in Nirmal Singh Pehlwan [(2011) 12 SCC 298]wherein after noticing both Kanhaiyalal [(2008) 4 SCC 668] as well as Noor Aga [(2008) 16 SCC 417] , this Court observed thus:
"15. We also see that the Division Bench in 12 CRA 743/2004 & 764/2004 Kanhaiyalal case [(2008) 4 SCC 668] had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis-à-vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point of time is Noor Aga case[(2008) 16 SCC 417] which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case[(2008) 16 SCC 417] particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with."
22. In the light of Section 53 of Narcotic Drugs and Psychotropic Substances Act, 1985 as well as the judgments passed by the Supreme Court in the cases of Noor Aga (Supra), Nirmal Singh Pehlwan (Supra), Tofan Singh(Supra) and Raju Premji (Supra), this Court is of the considered opinion that the confessional statement made under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 cannot be said to be admissible in evidence in the light of Section 25 of Evidence Act. Even otherwise, the prosecution will also be required to establish beyond reasonable doubt that the confessional statement was made voluntarily.
23. The allegations against the appellant Abdul Aziz is the confessional statement of co-accused Rajeev Verma Ex.P.24, as well as of the appellant Abdul Aziz Ex.P.26 recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985. Nothing was seized from the possession of Abdul Aziz. There is not a single whisper in the evidence of Mahavir Singh (P.W.10) that the appellant Abdul Aziz had made the confessional statement voluntarily. Thus, in the considered opinion of this Court, there is no evidence against the appellant Abdul Aziz and hence, the prosecution has failed to prove the guilt of the appellant Abdul Aziz beyond reasonable doubt.
24. So far as the case of appellant Rajeev Verma is concerned, the 13 CRA 743/2004 & 764/2004 allegations are that he was the Secretary of Khadi and Gramodyog and in an iron Almirah kept in the factory premises, 1 kg 450 gms of Heroine was seized. It is the submissions of the Counsel for the appellant Rajeev Verma, that as the contraband was not in the exclusive possession of Rajeev Verma, therefore, he cannot be convicted for offence under Sections 8/21, 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985.
25. Before proceeding further, it would be apposite to consider the meaning of "Possession", "conscious possession" and "exclusive possession".
26. The Supreme Court in the case of Mohan Lal Vs. State of Rajasthan reported in (2015) 6 SCC 222 has held as under :
''11. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word "possession". The classical theory of the English law on the term "possession" is fundamentally dominated by Savigny-ian "corpus" and "animus" doctrine. Distinction has also been made in "possession in fact" and "possession in law" and sometimes between "corporeal possession" and "possession of right" which is called "incorporeal possession". Thus, there is a degree of flexibility in the use of the said term and that is why the word "possession" can be usefully defined and understood with reference to the contextual purpose for the said expression. The word "possession" may have one meaning in one connection and another meaning in another.
12. The term "possession" consists of two elements.
First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of "possession" given in Black's Law Dictionary is as follows:
"Possession.--Having control over a thing with the 14 CRA 743/2004 & 764/2004 intent to have and to exercise such control. Oswald v. Weigel. The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.
The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint."
In the said Dictionary, the term "possess" in the context of narcotic drug laws means:
"Term 'possess', under narcotic drug laws, means actual control, care and management of the drug. Collini v. State. Defendant 'possesses' controlled substance when defendant knows of substance's presence, substance is immediately accessible, and defendant exercises 'dominion or control' over substance. State v. Hornaday."
And again:
"Criminal law.--Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, United States v. Craig; 105 Wash 2d 120 as well as joint or exclusive, Garvey v. State 176 Ga App 268 . The defendants must have had dominion and control over the contraband with knowledge of its presence and character. United States v. Morando-Alvarez 5210 F 2d 882 .
Possession, as an element of offense of stolen 15 CRA 743/2004 & 764/2004 goods, is not limited to actual manual control upon or about the person, but extends to things under one's power and dominion. MCConnell vs. State 48 Ala App 523.
Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. United States v. Ellison 469 F2d 413.
To constitute 'possession' of a concealable weapon under statute proscribing possession of a concealable weapon by a felon, it is sufficient that defendant have constructive possession and immediate access to the weapon. State v. Kelley 12 Or App 496"
13. In Stroud's Dictionary, the term "possession" has been defined as follows:
"'Possession' [Drugs (Prevention of Misuse) Act, 1964 (c. 64), Section 1(1)]. A person does not lose 'possession' of an article which is mislaid or thought erroneously to have been destroyed or disposed of, if, in fact, it remains in his care and control (R. v. Buswel (1972) 1 WLR 64).
14. Dr Harris, in his essay titled "The Concept of Possession in English Law" while discussing the various rules relating to possession has stated that "possession" is a functional and relative concept, which gives the Judges some discretion in applying abstract rule to a concrete set of facts. The learned author has suggested certain factors which have been held to be relevant to conclude whether a person has acquired possession for the purposes of a particular rule of law. Some of the factors enlisted by him are: (a) degree of physical control exercised by person over a thing, (b) knowledge of the person claiming possessory rights over a thing, about the attributes and qualities of the thing, (c) the person's intention in regard to the thing, that is, "animus possessionis" and "animus domini", (d) possession of land on which the thing is claimed is lying, also the relevant intention of the occupier of a premises on which the thing is lying thereon to exclude others from enjoying the land and anything which happens to be lying there; and Judges' concept of the social purpose of the particular rule relied upon by the plaintiff.
15. The learned author has further proceeded to state that quite naturally the policies behind 16 CRA 743/2004 & 764/2004 different possessory rules will vary and it would justify the courts giving varying weight to different factors relevant to possession according to the particular rule in question. According to Harris, Judges have at the back of their mind a perfect pattern in which the possessor has complete, exclusive and unchallenged physical control over the subject; full knowledge of its existence; attributes and location, and a manifest intention to act as its owner and exclude all others from it. As a further statement he elucidates that courts realise that justice and expediency compel constant modification of the ideal pattern. The person claiming possessory rights over a thing may have a very limited degree of physical control over the object or he may have no intention in regard to an object of whose existence he is unaware of, though he exercises control over the same or he may have clear intention to exclude other people from the object, though he has no physical control over the same. In all this variegated situation, states Harris, the person concerned may still be conferred the possessory rights. The purpose of referring to the aforesaid principles and passages is that over the years, it has been seen that courts have refrained from adopting a doctrinaire approach towards defining possession. A functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy. Thus, the word "possession" in the context of any enactment would depend upon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object.
16. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows:
"35. Presumption of culpable mental state.--(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
17 CRA 743/2004 & 764/2004 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."
17. On a perusal of the aforesaid provision, it is plain as day that it includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act.
* * * * *
22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the appellant-accused was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such the offence under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to 18 CRA 743/2004 & 764/2004 discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the coming into force of the NDPS Act and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the appellant-accused cannot take the plea that he had committed an offence under Section 9 of the Opium Act and not under Section 18 of the NDPS Act.''
27. The Supreme Court in the case of Baldev Singh Vs. State of Haryana, reported in (2015) 17 SCC 554 has held as under :
''12. The testimony of Ram Singh, PW 1 and evidence on record amply establishes physical possession of the contraband by the appellant. The appellant being the driver of the vehicle by all probabilities must have been aware of the contents of the bags transported in the trolley attached to the tractor. Once the physical possession of the contraband by the accused has been proved, Section 35 of the NDPS Act comes into play and the burden shifts on the appellant-accused to prove that he was not in conscious possession of the contraband. Section 35 of the NDPS Act reads as under:
"35. Presumption of culpable mental state.-- (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 19 CRA 743/2004 & 764/2004 probability."
The Explanation to sub-section (1) of Section 35 expanding the meaning of "culpable mental state"
provides that "culpable mental state" includes intention, knowledge of a fact and believing or reason to believe a fact. Sub-section (2) of Section 35 provides that for the purpose of Section 35, 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 the probability. Once the possession of the contraband by the accused has been established, it is for the accused to discharge the onus of proof that he was not in conscious possession. Burden of proof cast on the accused under Section 35 of the NDPS Act can be discharged through different modes. One of such modes is that the accused can rely on the materials available in the prosecution case raising doubts about the prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. If the circumstances appearing in the prosecution case give reasonable assurance to the court that the accused could not have had the knowledge of the required intention, the burden cast on him under Section 35 of the NDPS Act would stand discharged even if the accused had not adduced any other evidence of his own when he is called upon to enter on his defence.
13. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 this Court has clearly held that where an accused admits that narcotic drugs were recovered from bags that were found in his possession at the time of his apprehension, in terms of Section 35 of the NDPS Act the burden of proof is then upon him to prove that he had no knowledge that the bags contained such a substance. This Court then went on further to explain as to the standard of proof that such an accused is expected to discharge and the modes vide which he can discharge the said burden. In paras 21 and 22 of the said judgment, this Court held as under: (SCC p.
522) "21. No doubt, when the appellant admitted that the narcotic drug was recovered from the gunny bags stacked in the autorickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated
20 CRA 743/2004 & 764/2004 in sub-section (2) as 'beyond a reasonable doubt'. If the court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the court entertains strong doubt regarding the accused's awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt undispelled. Even so, it is for the accused to dispel any doubt in that regard.
22. The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that he can rely on the materials available in the prosecution evidence. Next is, in addition to that, he can elicit answers from prosecution witnesses through cross-
examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that the appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence."
28. The Supreme Court in the case of Kulwinder Singh Vs. State of Punjab reported in (2015) 6 SCC 674 has held as under :
''16. The next ground of assail pertains to factum of conscious possession. The submission of the learned counsel for the appellants is that they were only moving in the truck and had no knowledge what the bags contained. As the evidence on record would show, two of the accused persons were sitting by the side of the driver and the rest of the accused persons were sitting on the body of the truck. 110 bags of poppy husk weighing 4180 kg were in the truck. At the instance of the police when the truck was stopped, had the appellant- accused no knowledge about the contents of the bags, they would not have run away from the spot. That apart, they absconded for few days from their village. They have not taken the plea that they were 21 CRA 743/2004 & 764/2004 taking any lift in the truck and their presence in the truck has been proven by the prosecution. It is not a small bag lying in the corner of the truck that the appellant-accused can advance the plea that they were not aware of it. In the instant case, there were 110 bags of poppy husk being carried in the truck.
Their presence which has been proven, establishes their control over the bags. The circumstances clearly establish that they were aware of the poppy husk inside the bags and in such a situation, it is difficult to accept that they were not in conscious possession of the said articles.
17. In this context reference to the decision in Madan Lal v. State of H.P. (2003) 7 SCC 465 would be fruitful wherein it has been held thus:
(SCC p. 472, paras 22-25) "22. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja to work out a completely logical and precise definition of 'possession' uniformly applicable to all situations in the context of all statutes.
23. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal v. State of M.P. (1972 2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.
25. The word 'possession' means the legal right to possession (see Heath v. Drown 1973 AC 498 ). In an interesting case it was observed that where a person keeps his firearm 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.)"
18. In Dharampal Singh v. State of Punjab (2010) 22 CRA 743/2004 & 764/2004 9 SCC 608, it has been ruled that the expression "possession" is not capable of precise and complete logical definition of universal application in the context of all the statutes. Recently, in Mohan Lal v. State of Rajasthan (2015) 6 SCC 222, after referring to certain authorities, this Court has held as follows: (Mohan Lal case, SCC pp.
238-39, paras 21-22) "21. From the aforesaid exposition of law it is quite vivid that the term 'possession' for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession.
Further, personal knowledge as to the existence of the 'chattel' i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others.
22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control.
The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion."
19. In view of the aforesaid enunciation of law, once possession is found, the accused is presumed 23 CRA 743/2004 & 764/2004 to be in conscious possession as has been held in Ram Singh v. Central Bureau of Narcotics (2011) 11 SCC 347. If the accused takes a stand that he was not in conscious possession, he has to establish the same, as has been held in Dharampal Singh. As the materials brought on record would show, the appellant-accused were sitting in the truck; their presence in the truck has been clearly established; and they had run away from the spot and absconded for some days from the village. It is proven that there were 110 bags of poppy husk in the truck and the appellant-accused were in control of the articles in the truck. Therefore, there can be no iota of doubt that they were in conscious possession of the same. In view of the aforesaid analysis, we do not find any force in the submission of the learned counsel for the appellants.'' Thus, it is clear that when a person is found to be in possession of the contraband, then it can be presumed that he was in conscious possession of the same and the burden shifts on the accused to prove otherwise.
29. It is next contended by the Counsel for the appellants that since, the independent witnesses have not supported the prosecution case, therefore, the evidence of the Departmental witnesses have remained uncorroborated and therefore, they are not reliable. The submissions made by the Counsel for the appellants cannot be accepted. A huge quantity of 1 Kg 450 gms of Heroine was seized. Thus, it cannot be said that the evidence of Mahavir Singh (P.W.10) remained uncorrobrated.
The Supreme Court in the case of P.P. Beeran Vs. State of Kerala reported in (2001) 9 SCC 571 has held as under :-
''3. The case alleged against him shows that he was found in possession of 23.5 grams of opium at the time when he was intercepted and searched by PW 2 Sub-Inspector of Police. We have noticed that two witnesses were called by PW 2 at the time of search out of whom one was examined as PW 1 and the other was not examined. But even the one 24 CRA 743/2004 & 764/2004 examined (PW 1) did not support the prosecution and hence he was treated as hostile. Though an argument was addressed by Mr R. Venkataramani, learned Senior Counsel for the appellant that the evidence of PW 2 Sub-Inspector of Police remained uncorroborated and, therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW 2 on that ground alone. Even otherwise, it cannot be said that the evidence of PW 2 remains uncorroborated because the fact that opium was recovered from his person and also Exhibit P-2 which is an endorsement containing the signature of the appellant could be treated as circumstances corroborating the testimony of PW 2.'' The Supreme Court in the case of Baldev Singh (supra) has held as under :-
''10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.
11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad v. State of M.P., (2007) 7 SCC 625 it was held as under: (SCC pp. 632-33, paras 25-27) "25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be 25 CRA 743/2004 & 764/2004 relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence.
The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force.
There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.
26. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a-century, in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated:
(AIR p. 230, para 40) '40. ... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.'
27. In Tahir v. State (Delhi) (1996) 3 SCC 338 , dealing with a similar question, Dr A.S. Anand, J. (as His Lordship then was) stated:
(SCC p.341, para 6) '6. ... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.'' (emphasis in original) Thus, the evidence of departmental witness cannot be discarded merely on the ground that the independent witnesses have not 26 CRA 743/2004 & 764/2004 supported the prosecution case.
30. If the facts of the case in hand are considered, then the following circumstances would arise :
(i) One Hansraj was arrested having been found in possession of 250 gms of Heroine.
(ii) Hansraj made a confessional statement under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 informing that he was carrying the contraband for selling the same to the appellant Rajeev Verma, and on earlier occasions also, he had sold the Heroine to the appellant Rajeev Verma.
(iii) The house of Rajeev Verma was searched, however, nothing was found.
(iv) The Factory premises was searched and one iron Almirah was found on the right side of the entrance gate of the factory premises and the appellant Rajeev Verma did not make the key of the Almirah available to the search party.
(v) The lock of iron Almirah was broke open with the consent of the appellant Rajeev Verma and 1 Kg 450 gms of Heroine was found.
(vi) The Appellant Rajeev Verma was the Secretary of Khadi and Gramodyog and hence was the custodian of the property kept in Factory premises.
(vii) Certain articles which are used for preparing Heroine were seized from room situated on the left side of the entrance gate.
(viii) The appellant Rajeev Verma has taken a defence that he had already resigned from the post of Secretary and was not the Secretary on the date of search and was not the custodian of the iron Almirah.
31. Usman (P.W.1) is the driver of the bus in which the co-accused Hansraj was travelling. Although this witness has partially not 27 CRA 743/2004 & 764/2004 supported the prosecution case, however, his evidence is not material for considering the case against the appellant Rajeev Verma.
32. Lalji Verma (P.W.2) is a witness of search in the house as well as the factory premises of the appellant Rajeev Verma. This witness has partially supported the prosecution and has stated that the house of the appellant Rajeev Verma was searched, however, nothing was seized. However, he did not support the prosecution case, so far as the search of the factory premises of the appellant Rajeev Verma and seizure of contraband. This witness was declared hostile. Nothing could be elicited from his cross examination, which may support the prosecution case. However, this witness admitted his signatures of seizure memos Ex. P.10, Ex. P.12 and Ex. P.14. This witness has not given any explanation, as to why he signed the seizure memos Ex.P.10 and P.12 as well as seal specimen Ex.P.14.
33. Ramprasad Shrivastava (P.W.3) is the Bus Conductor and has supported the prosecution case with regard to arrest of co-accused Hansraj. However, the evidence of this witness is not material for considering the allegations against the appellant Rajeev Verma.
34. Brajesh Kumar Rajput (P.W.4) is a witness of search in the house as well as the factory premises of the appellant RajeevVerma. This witness has partially supported the prosecution and has stated that the house of the appellant Rajeev Verma was searched, however, nothing was seized. However, he did not support the prosecution case, so far as the search of the factory premises of the appellant Rajeev Verma and seizure of contraband is concerned. This witness was declared hostile. Nothing could be elicited from his cross examination, which may support the prosecution case. However, this witness has admitted his signatures on Ex. P.10, Ex. P.11, Ex. P.12, Ex. P.13 and Ex. P.14. The only explanation given by this witness is that he had signed the blank documents. However, this explanation cannot be accepted merely on the ground that he has not clarified as to why he had signed the blank documents 28 CRA 743/2004 & 764/2004
35. Durgalal Sharma (P.W.5) is a constable and is a witness of arrest of co-accused Hansraj and seizure of 250 gms of Heroine from his possession, however, his evidence is not material to consider the allegations against the appellant Rajeev Verma.
36. Rajnish Sharma (P.W.6) is the member of the search team. He has stated that on 6-9-2001, at about 11:30 in the night, the team along with Hansraj left for Itawah. They reached Itawah at 7 in the morning. Two Panch witnesses were called by Mahavir Singh. Thereafter they reached the house of Rajeev Verma. He was told by the search team about the purpose of coming to his house. His house was searched but nothing was found. Thereafter they went to the factory premises of Arunodaya Khadi Gramodyog village Phuphai Distt. Itawah. Immediately after entering inside the factory premises, there was one room on both sides of the entrance gate. In a room situated on the right side of the entrance gate, one iron almirah was kept which was locked. The appellant Rajeev Verma could not find the key and accordingly, the lock of the almirah was broke open with the consent of the appellant Rajeev Verma. One polythene packet containing light brown coloured powder was kept in the locker which was not locked. Rajeev Verma, also disclosed the said powder to be Heroine. The powder was tested with the kit which was found to be Heroine. The powder was weighed and the total weight of Heroine was 1 Kg 450 gms. Two samples of 5 gms each were prepared and were sealed and they were marked as S1 and S2. One room on the left side of the entrance gate was situated. When it was opened, apparatus for manufacturing Heroine were found and Ex. P.10 was prepared. The list of apparatus are Ex. P.11 and P.12. The appellant Rajeev Verma was arrested vide arrest memo Ex.P.15 and information about the seizure of Heroine was given after coming back to Gwalior as per Section 57 of N.D.P.S.Act which is Ex. P. 16. This witness was cross examined in detail. He was mainly cross examined with regard to his jurisdiction to investigate the matter in Itawah. In cross examination, 29 CRA 743/2004 & 764/2004 this witness has stated that no separate notice to the appellant Rajeev Verma was given for carrying out search in his factory. This witness has stated that before carrying out search of his house, the appellant Rajeev Verma, was given the opportunity of being searched either by the investigating officer, or Gazetted Officer or Executive Magistrate. This witness has denied that at the time of seizure, near about 50 persons were working in the factory. This witness has specifically stated that no person of general public was inside the factory premises. This witness has admitted that Ex. P.10 is in his handwriting. No suggestion was given about the conduct of the appellant Rajeev Verma at the time of search. No suggestion was given with regard to the key of the Almirah and breaking open of the lock of the almirah with the consent of the appellant Rajeev Verma. No suggestion was given with regard to the resignation of the appellant from the post of Secretary, Arunodaya Khadi Gramodyog Sewa Sansthan.
37. Vijay Singh (P.W.7) is a witness of search in the house of Arjun Singh. Therefore, his evidence is not material for considering the case of the appellant Rajeev Verma.
38. Kewal Singh (P.W.8) has stated about the arrest of co-accused Hansraj, Seizure of contraband from Hansraj etc. This witness has stated that after completing his investigation, he had handed over the papers to Mahavir (P.W.10). As this witness is not the witness of any proceedings taken against the appellant Rajeev Verma, therefore, this witness is not material for considering the case against the appellant Rajeev Verma.
39. M.L. Prajapti (P.W.9) had taken the samples of seized contraband on 8-9-2001 along with Memo Ex. P.20 and the receipt of deposit of the same is Ex. P.21.
40. Mahavir Singh (P.W. 10) has stated that he was posted on the post of Inspector, Narcotics Department from 1998 to June, 2002. He was appointed as investigating officer by letter Ex. P.18 issued by 30 CRA 743/2004 & 764/2004 Superintendent. On 6-9-2011, he had recorded the statements of the co-accused Hansraj, Ex. P.22. Hansraj had informed that he had brought the Heroine for selling the same to the appellant Rajeev Verma. Accordingly, on 6-9-2011 itself, at about 11:30 in the night, they left for Itawah where they met with the team which had come from the office of Commissioner, Narcotics, Lucknow. They went to the house of the appellant Rajeev Verma, but nothing was found. Thereafter, they went to the Khadi Gramodyog, run by the appellant Rajeev Verma, and entered inside the Factory premises. One iron Almirah was kept in the room situated on the right side of the entrance gate. On query, the appellant Rajeev Verma, could not produce the key and accordingly, the lock of the almirah was broke open with the consent of the appellant Rajeev Verma. Powder of light brown colour was found in a polythene. The same was tested with the help of kit on the spot itself, and it was found to be Heroine. The powder was weighed and the total weight of the powder was 1 kg 450 gms. Two samples of 5 gms each were prepared and were sealed on the spot. The samples were marked as S1 and S2. Article "A" is the sample S2. Article "D" is the seized Heroine. In the Court ''One packet which was received from the Govt. Opium and Alchalide Factory, Neemuch was opened and one paper in open condition was found in which one polythene packet was kept in which the remains of powder were found''. The Article "C" was sent for chemical examination and its report is Ex. P.23. On further search, in a room situated on the left side of the entrance gate, empty bottles, Ammonium Chloride, plastic tub etc were seized vide seizure memo. Ex. P.12 and P.13 are the panchnamas. The apparatus which were seized from the factory of the appellant Rajeev Verma, were not got chemically tested. The statement of the appellant Rajeev Verma, was recorded. Rajeev Verma had informed that the co-accused Abdul Aziz used to bring chemical for manufacturing Heroine. He also informed that one person namely Arjun Singh had also come along with Abdul 31 CRA 743/2004 & 764/2004 Aziz. He also informed that the Heroine which has been seized was prepared in the factory premises itself with the help of Abdul Aziz, Arjun Singh, Bhupendra Dubey and Nauzam. Thereafter, the house of Abdul Aziz was also searched. Nothing objectionable was found. A notice under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 was served on Abdul Aziz and was called in the Gwalior office of Central Narcotics Bureau, which is Ex. P.25. On 17- 9-2001, Abdul Aziz came to Gwalior and his statement was recorded in which he admitted that he had supplied chemical for the manufacturing Heroine. The statement is Ex. P.26 and he was arrested vide arrest memo Ex. P.27. Jeep on which Abdul Aziz had come was also seized as it was informed by the appellant Abdul Aziz that he had used that jeep. Thereafter, search was made for Bhupendra Dubey, but he could not be traced. It was also informed by the appellant Rajeev Verma, that Bhupendra Dubey had used a Maruti Car for supply of Heroine and accordingly, a maruti car was also seized from the possession of cousin brother of Bhupendra Dubey vide seizure memo Ex. P.29. In cross examination, this witness admitted that no material was seized which could have been used for manufacturing Heroine. The chemical which was seized was not sent for chemical examination. The said chemical is also used for other works also. This witness further clarified that he has jurisdiction on all places all over India. He had found a pass book on which the appellant Rajeev Verma was mentioned as patron but had not seized the pass book but had obtained details from the bank which are Ex. P.30. He further admitted that he did not collect any information from any of the office bearers about the position of the appellant Rajeev Verma. The appellant Rajeev Verma was not having the key of the Almirah also. Only one Chowkidar was present in the premises. He did not record the statement of Chowkidar. He has not filed any complaint in Itawah Court nor had lodged any report at Itawah. He further denied the suggestion that the appellant Rajeev Verma, had no concern with 32 CRA 743/2004 & 764/2004 Khadi Gramodyog. He further clarified that as there was no President, therefore, he did not record the statement of the President of Khadi Gramodyog. Before taking search of the house of the appellant Rajeev Verma, he had served a notice on him which is Ex. P.9. He further clarified that he had not recorded the statement of the Chowkidar as he was very old. He further denied the suggestion that the signatures of the appellant Rajeev Verma, were obtained on the papers under pressure. In further cross-examination, this witness admitted that he had not obtained any search warrant for the search of the house of the appellant RajeevVerma. He further admitted that he had not obtained any search warrant for the search of the Factory Premises. In Ex. P24 which is the statement of the appellant Rajeev Verma, it is not mentioned that Arjun Singh had brought the raw material with Bhupendra Dubey for manufacturing/preparing Heroine. It was clarified that supplementary statement Ex. P.33 of the appellant Rajeev Verma was recorded in which he had clarified the same. This witness was further cross examined, but not in the context of the allegations made against the appellant Rajeev Verma.
41. Thus, from the cross examination of Mahavir Singh (P.W.10), no suggestion was given that the key of the Almirah was with the President of the Khadi Gramodyog, nor any suggestion was given that the appellant Rajeev Verma had already submitted his resignation on 11-7-2001 whereas the search was made on 7-9-2001.
42. The appellant Rajeev Verma in his defence has examined himself as a Defence witness as well as had examined Sunder Singh (D.W.2), and Sudhir Kumar (D.W.3). Sunder Singh (D.W.2) has stated that the police had enquired that who is the President of the Khadi Gramodyog, therefore, he went on a cycle to the house of Sudhir Kumar to call him and when he came back, the police had already returned. Similarly, Sudhir Kumar (D.W.3) has stated that he was the President of the Arunodaya Khadi Gramodyog and the appellant Rajeev Verma had tendered his resignation from the post of 33 CRA 743/2004 & 764/2004 Secretary on 11-7-2001 which was accepted. The list of Members of Managing Committee of the year 2000-2001 was filed as Ex. D.1, according to which the appellant Rajeev Verma was the Secretary. Ex. D.2 is the list of Members of Managing Committee of the next year. The list of Members of Managing Committee of the year 1999-2000 is Ex. D.3. The bye-laws of the Arunodaya Khadi Gramodyog are Ex. D.10. The resignation submitted by the appellant Rajeev Verma dated 11-7-2001 is Ex. D.11 and letter written by the appellant Rajeev Verma is Ex. D.12. The decision of the Managing Committee dated 11-7-2001 is Ex. D.14 and the handing over of the charge of the post of Secretary is Ex. D.15. According to the handing over of the charge by the appellant Rajeev Verma is concerned, according to Ex. D.14, the charge was given to one Rohit Verma, but for the reasons best known to the appellant Rajeev Verma, Rohit Verma was not examined as Defence witness. In cross examination, this witness has admitted that when the appellant Rajeev Verma was holding the charge of Secretary, then he was looking after the entire work of the Society. He could not specify that on what date, information with regard to the submission of the resignation of the appellant Rajeev Verma and the election of New Managing Committee was sent to the Registrar, Firms and Societies. Thus, there is nothing on record to show that when the necessary information was sent to the Registrar, Firms and Societies.
43. Furthermore, the resignation of the appellant Rajeev Verma is dated 11-7-2001 and the meeting of the Managing Committee was called on the same date, the resignation of the appellant was accepted and new Managing Committee was constituted. What was the need of such a swift action on the part of the Society has not been explained. As per the bye-laws, for summoning a special meeting a notice of 24 hours is necessary which was not done. Thus, it is clear that the resignation of the appellant Rajeev Verma and all other proceedings were fraudulently prepared after the search was carried out. The search was carried out on 7-9-2011 and the so called resignation was 34 CRA 743/2004 & 764/2004 tendered and accepted on 11-7-2001. The appellant Rajeev Verma could have examined his successor ( Rohit Verma) to prove that when he took over the charge and when the information of the proceedings of meeting dated 11-7-2001 were sent to the Registrar, Firms and Societies. However, Rohit Verma has not been examined by the appellant. Thus, the defence taken by the appellant Rajeev Verma that he was not the Secretary on the date of search i.e., 7-9-2001 cannot be accepted and hence rejected.
44. It is next contended by the Counsel for the appellant that the compliance of Section 42(2) of Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory and since the same has not been complied with, therefore, the prosecution of the appellant Rajeev Verma is bad. Considered the submissions.
45. Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under :
''42. Power of entry, 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 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 personal 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 35 CRA 743/2004 & 764/2004 seizure or freezing or forfeiture under Chapter V-A of this Act 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 of 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; 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 this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to believe that a search warrant or authorization 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 place 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 sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.''
46. Section 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under :
''57. Report of arrest and seizure.--Whenever 36 CRA 743/2004 & 764/2004 any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.''
47. The Supreme Court in the case of Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539 has held as under :
''33. Abdul Rashid [(2000) 2 SCC 513] had been decided on 1-2-2000 but thereafter Section 42 has been amended with effect from 2-10-2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance with the said provision may not vitiate the trial if it does not cause any prejudice to the accused.
34. The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policymakers about it. Now for the last two decades police investigation has gone through a sea change. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. For this change of circumstances, it may not be possible all the time to record the information which is collected through mobile phone communication in the register/records kept for those purposes in the police station or the respective offices of the authorised officials in the Act if the emergency of the situation so requires. As a result, if the statutory provision under Sections 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure.
These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be 37 CRA 743/2004 & 764/2004 taken as a discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug peddlers.''
48. The Supreme Court in the case of Bahadur Singh Vs. State of Haryana reported in (2010) 4 SCC 445 has held as under :
''19. Apart from the decision in Sajan Abraham case [(2001) 6 SCC 692], the decision of the Constitution Bench in Karnail Singh case [(2009) 8 SCC 539], has also made it clear that non-
compliance with the provisions of Section 42 may not vitiate the trial if it did not cause any prejudice to the accused. Furthermore, whether there is adequate compliance with Section 42 or not is a question of fact to be decided in each case.''
49. If the submissions made by the Counsel for the appellant are considered in the light of the law laid down by the Supreme Court, then it would be clear that no question was put to the investigating officer regarding non compliance of Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985. Mere non-compliance may not vitiate the trial, unless and until, prejudice is caused to the accused. In the present case, an information as required under Section 57 of Narcotic Drugs and Psychotropic Substances Act, 1985 was sent by Mahavir Singh (P.W.1) on 8-9-2011 i.e., on the next date of search. Thus, information to a superior officer was sent within 72 hours although under Section 57 of Narcotic Drugs and Psychotropic Substances Act, 1985. The basic purpose of Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985 is to prevent misuse of power. In the present case, when the search party left for Itawah, they were not knowing that the Heroine might be kept in the factory of the appellant Rajeev Verma. Accordingly it is held that there is a substantial compliance of Section 42(2) of Narcotic Drugs and Psychotropic Substances Act, 1985 and the appellant Rajeev Verma, also could not point out as to how the non- compliance of Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985 38 CRA 743/2004 & 764/2004 has caused prejudice to him.
50. Thus, it is clear that the appellant Rajeev Verma was the Secretary of Arunodaya Khadi Gramodyog Sewa Sansthan and was the custodian of the Almirah. Neither he gave the keys of the Almirah to the search team nor told that who is in possession of the keys of Almirah. Silence on the part of the appellant Rajeev Verma at the time of search also indicates his guilty mind. He did not inform the search team about his resignation, nor informed the search team, that the keys are with the President. Thus, it is clear from the conduct of the appellant Rajeev Verma at the time of search, that he maintained complete silence, therefore, the defence taken by him at the Trial cannot be relied upon because if the appellant Rajeev Verma had already tendered his resignation, then there was no reason for him to remain silent. No question was put to Mahavir Singh (P.W.10) about the resignation of the appellant Rajeev Verma. Further, there is no question in the cross examination of Mahavir Singh (P.W.10) that the appellant Rajeev Verma had informed him that the key of the Almirah are with the President. Rohit Verma, to whom the appellant Rajeev Verma is alleged to have handed over the charge on 11-7-2001, has also not been examined by the appellant. Thus, this Court is of the view that the Rajeev Verma, being the custodian of the iron Almirah kept in a room situated on the right side of the entrance gate, was in possession of the same. 1 kg 450 gms of Heroine was found in the Almirah whose lock was broke open with the consent of the appellant Rajeev Verma. As Rajeev Verma was in possession of 1 kg 450 gms of Heroine, therefore, it can be presumed that he was in conscious possession unless and until, the same is disproved by the appellant Rajeev Verma. The appellant Rajeev Verma has taken a defence that he had already tendered his resignation on 11-7-2001. however, there is nothing on record as to when the information of the resignation of the appellant Rajeev Verma was sent to the Registrar, Firms and Societies. Thus, it is clear that the information, if any, to the Registrar 39 CRA 743/2004 & 764/2004 Firms and Societies, must have been sent after the search, therefore, the proceedings of the Society, on which the appellant Rajeev Verma has relied upon, cannot be accepted. Hence, in the light of Section 35 of N.D.P.S. Act, it is proved beyond reasonable doubt that the appellant Rajeev Verma was in conscious possession of 1 kg 450 gms of Heroine which was seized on 8-9-2001.
51. Thus, it is held that the appellant Rajeev Verma is guilty of committing offence under Section 8/21 and 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985.
52. This Court has already held that except the confessional statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 of the co-accused Rajeev Verma and the appellant Abdul Aziz, there is no other evidence against Abdul Aziz for holding him guilty for offence under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act,1985. Accordingly, it is held that the prosecution has failed to prove the guilt of the appellant Abdul Aziz beyond reasonable doubt and accordingly, he is acquitted of the charge under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985.
53. Accordingly, the conviction of the appellant Rajeev Verma for offence under Sections 8/21 and 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985, recorded by Special Judge (N.D.P.S.Act), Gwalior by judgment dated 27-10-2004 in Special Sessions Trial No.2/2002 is hereby affirmed. The conviction of appellant Abdul Aziz for offence under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 recorded by Special Judge (N.D.P.S.Act), Gwalior by judgment dated 27-10-2004 in Special Sessions Trial No. 2/2002 is hereby set aside, and the appellant Abdul Aziz is acquitted of all the charges.
54. Heard on the question of sentence to the appellant Rajeev Verma. It is submitted by the Counsel for the appellant that a lenient view may be adopted as the appellant Rajeev Verma has family 40 CRA 743/2004 & 764/2004 members to look after.
55. The huge quantity of Heroine which has been recovered from the possession of the appellant Rajeev Verma cannot be lost sight. The maximum sentence for offence under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 is twenty years and a fine of Rs.2 lac. The Trial Court has awarded jail sentence of 10 years and a fine of Rs. 1 lacs. This Court is of the considered opinion that the Trial Court has already adopted a very lenient view while awarding sentence, and hence, the sentence awarded by the Trial Court does not call for interference and hence, the jail sentence of 10 years and a fine of Rs.1 lacs awarded by the Court of Special Judge (N.D.P.S.Act), Gwalior by judgment dated 27-10-2004 in Special Sessions Trial No.2/2002 is hereby affirmed.
56. The appellant Abdul Aziz is on bail. His bail bonds stand discharged. The fine amount, if deposited by the appellant Abdul Aziz, be returned back.
57. The appellant Rajeev Verma is on bail. His bail bonds and surety bonds are hereby cancelled. He is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
58. The Criminal Appeal No.743/2004 filed by appellant Abdul Aziz is hereby allowed and the Criminal Appeal No.764/2004 filed by appellant Rajeev Verma is hereby dismissed.
(G.S. Ahluwalia) Judge /10/2017 *MKB*