Telangana High Court
Mohammed Khayyum vs The State Of Telangana on 12 September, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.2633 of 2018
JUDGMENT:
This Criminal Appeal has been preferred by accused No.1 in S.C.No.9 of 2017 on the file of the learned Special Sessions Judge for Trial of Cases under Narcotic Drugs and Psychotropic Substances Act-cum-I Additional Sessions Judge, Khammam against the judgment of conviction dated 17.08.2018 where under the Court below found the appellant
- accused No.1 guilty for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and accordingly convicted him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for a period of two years.
2. The brief facts of the case are that on 26.03.2017, at 07:00 a.m., one While Bolero car without a license plate was going towards Paloncha from Badrachalam Road at high speed. The Forest Section Officer, Paloncha and his team stopped the car and found four people inside and on enquiry, 2 SKS,J Crl.A.No.2633 of 2018 they revealed that they were from Odisha State. Further, the Police discovered a bundle of packed ganja inside the car. It is alleged that total 208 kgs worth Rs.12,48,000/- was seized from both the accused. Police accordingly, registered Crime NO.141 of 2017 against both the accused and took up investigation and after a full-fledged investigation, they have filed the charge sheet.
3. In support of their case, prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P16 and M.Os.1 to 5 were marked. On behalf of accused, no oral evidence was adduced, however, Ex.B1 was marked.
4. The trial Court, after full-fledged trial and on hearing both sides, found both the accused guilty for the offence under Section 20(b)(ii)(C) of the Act and accordingly, convicted them.
5. The trial Court noted the testimony of the prosecution witnesses is coherent with regard to the commission of offence, carrying out the panchanama and seizing of ganja from accused Nos.1 and 2. According to the evidence, the accused are in possession of a Bolero Vehicle and 104 packets of ganja, each weighing 2 kgs. The trial Court opposed the submissions of the learned counsel for the accused with regard to the 3 SKS,J Crl.A.No.2633 of 2018 testimony of the interested witnesses and inconsistencies in the testimony of the prosecution witnesses, citing the reliability and consistency of the evidence.
6. Heard Sri P. Susheel Kumar, learned counsel appearing on behalf of the appellant and Sri S. Ganesh, learned Assistant Public Prosecutor appearing on behalf of the respondent - State.
7. Learned counsel for the appellant submitted that the learned Sessions Judge failed to see the seizure column in FIR is empty which establishes that nothing was seized. He further submitted that no independent witnesses were examined and sample has not been drawn from each packet which discloses that prosecution has not followed the procedure while seizing the contraband and conducting investigation. He further submitted that the appellant is the driver of the vehicle and he is no way concerned with the offences as alleged and that the trial Court without considering the same imposed the sentence, which is exorbitant. Therefore, he prayed the Court to set aside the judgment of conviction against the appellant. 4
SKS,J Crl.A.No.2633 of 2018
8. On the contrary, learned Assistant Public Prosecutor submitted that the contraband seized is commercial quantity and the sentence imposed against the appellant is commensurate to the quantity seized. He further submitted that even if the appellant is the driver of the vehicle, he is also liable for the punishment. Therefore, the trial Court has rightly passed the order and the judgment under Appeal needs no interference.
9. In the light of the submissions made by both the learned counsel and a perusal of the material available on record, it appears that the evidence of P.W.8, who is the Circle Inspector stated that on 26.03.2017 received FIR and sent the requisition to P.W.6-Tahsildar to be present at the Forest Check Post, Paloncha. Since the accused were conversing in Hindi, he asked P.W.4 to act as their translator. He then questioned the accused in front of P.W.6, recorded the confession statement and seized 104 packets of ganja, two cell phones, an Aadhar card and a Bolero car. Further, he made a requisition before the II Additional Judicial Magistrate of First Class, Kothagudem for collecting the samples and samples were drawn in the presence of the learned Magistrate and the same was photographed. It is stated that samples were sent 5 SKS,J Crl.A.No.2633 of 2018 to Forensic Science laboratory and the report of the said Laboratory revealed that samples were of ganja. From the above evidence, it is clear that P.W.8 had followed the procedure for seizure of the contraband and for sending the same to the Forensic Science Laboratory. P.W.8 is an official witness and no animosity can be attributed to him.
10. In their evidence, P.W.1 Forest Section Officer, P.W.2 Forest Beat Officer, P.W.3 Police Constable, Paloncha reiterated the contents of the Report. It is therefore, clear that the evidence of all the witnesses is consistent and they corroborate the version of the prosecution with regard to commission of offence, conducting panchanama and seizure of ganja from both the accused. The learned counsel for the appellant contended that all the witnesses are official witnesses and interested witnesses and there is no independent witness to corroborate the version of prosecution. P.W.8 stated that no independent witness was available at that time. In view of the law laid down by the Hon'ble Supreme Court in Hari Obula Reddy v. State of Andhra Pradesh 1, it can be concluded that evidence of interested witnesses cannot 1 (1981) 3 SCC 975 6 SKS,J Crl.A.No.2633 of 2018 be discarded merely because there is no independent witness to support the prosecution version.
11. At this stage, it is pertinent to note the Judgment of the Hon'ble Supreme Court in Union of India v. Md. Nawaz Khan, wherein in paragraph Nos.25, 26, 28, 29 and 30, it is held as follows:
"25. We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of NDPS Act, which is punishable under Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P., this Court held that:
"19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.7
SKS,J Crl.A.No.2633 of 2018
21. It is highlighted that unless the possession was coupled with the requisite mental element i.e., conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
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, W.B. v. Anil Kumar Bhunja, to work out a completely logical and precise definition of "possession" uniform(ly) 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.
26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
26. What amounts to "conscious possession" was also considered in Dharmpal Singh v. State of Punjab, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan, this Court also observed 8 SKS,J Crl.A.No.2633 of 2018 that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.
28. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik, a two-Judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the "possession" of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfill the parameters of Section 31(1)(b) and there was non-application of mind by the High Court.
29. In line with the decision of this Court in Rattan Mallik, we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37 (1)(b)(ii) of the NDPS Act.
30. With regard to the statement under Section 67 of the NDPS Act, the High Court has placed abundant reliance on the inclusion of Mohd. Arif Khan's name in place of the respondent's name in the endorsement of translation on the statement of the respondent. In Tofan Singh, a three-judge bench of this Court held that a statement under Section67 of the NDPS Act is inadmissible. The ASG submitted that independent of the 9 SKS,J Crl.A.No.2633 of 2018 statement, there are valid reasons to deny bail on the basis of the material which has emerged at this stage." 12 In the instant case, the claim of the learned counsel for the appellant is that appellant is only a driver and he is no way concerned with the alleged offence. As observed by the Hon'ble Supreme Court in Md. Nawaz Khan (supra), that the standard of conscious possession would be different in case of a public transport vehicle with several person as opposed to a private vehicle with a few person known to one another.
13. Therefore, even if the appellant is only the driver of the subject vehicle, the contraband i.e., 104 packets of ganja, was recovered from the vehicle and the subject vehicle was a private vehicle. Further, once the possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 whereunder presumption is available to be drawn from possession of illicit articles. Further, the ground raised by the learned counsel for the appellant that though the 10 SKS,J Crl.A.No.2633 of 2018 appellant was the driver of the private vehicle and he was no way concerned with the alleged seizure, is unbelievable.
14. Learned counsel for the accused has submitted that neither the date of the crime nor the specifics of the seized property were specified in the complaint. He has also raised concerns regarding a few of the smaller inconsistencies. It is a well settled law that a Court may not dismiss all the evidences of the prosecution because of small differences on unimportant issues that do not impact the case of the prosecution.
15. The Hon'ble Supreme Court has consistently held that undue importance should not be attached to omissions and contradictions and discrepancies which do not go to hear of the matter and shake the basic version of the prosecution witnesses. As rightly held by the Court below, the evidence is consistent on the aspect of seizure. Learned counsel for the appellant contention is with regard to the biased testimony of the witnesses is without merit because the biased testimony of the witnesses is not always trustworthy.
16. A requisition was made before the learned II Additional Judicial Magistrate of First Class, Kothagudem and the seized 11 SKS,J Crl.A.No.2633 of 2018 contraband was photographed once it was presented before the Magistrate. The trial court has unequivocally noted that even if there is no seal of the Magistrate on the images, the presence of the Magistrate in the images proves beyond a reasonable doubt that the procedure prescribed is being followed. The evidence in the file unequivocally shows that the prosecution is capable of proving the guilt of the accused beyond a reasonable doubt.
17. In view of the above discussion, as the contraband seized is commercial quantity, this Court is of the opinion that the learned Sessions Judge, after thoroughly analyzing the evidence, had come to a right conclusion and the same does not require any interference by this Court, the same is liable to be dismissed.
18. Accordingly, the Criminal Appeal is dismissed.
Miscellaneous petitions, if any pending, shall also stand closed.
___________
K. SUJANA
Date: 12.09.2024
SAI