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Madhya Pradesh High Court · body

2002 DIGILAW 319 (MP)

PRAKASH PAWAR v. STATE OF M. P.

2002-03-18

S.P.KHARE

body2002
JUDGMENT : Appellants Prakash and Ashok have been convicted under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as 'the Act') and sentenced to rigorous imprisonment for five years and to pay a fine of Rs. 15,000/- each. 2. The prosecution case is that a consignment containing 22 boxes was despatched on 18-11-1998 from Warangal to Jabalpur as per Railway Receipt No. 226673 (Ex.P-29-C) and it arrived at Jabalpur on 19-11-1998. The name of the consignee shown in the RR was - "Ramkrishna Trading Company", a fictitious firm. Nawab Khan (P.W. 8), a constable of the Railway Protection Force suspected on 22-11-1998 that the actual content in these boxes was something other than the eggs which were on the top layer. He gave instructions to the Parcel Clerk as per Ex. P-15-B to inform the RPF when anyone comes to take delivery of the parcel. On 28-11-1998 accused Prakash and Ashok came to the Parcel Office with the Railway Receipt, a photocopy of which is Ex. P-29-C, to take delivery of the consignment. M. P. Singh (P.W. 3), Parcel Clerk, informed the RPF Constable regarding the persons who have come to take the delivery. Nawab Khan (P.W. 8) reached the Parcel Office with M. K. Sisodia (P.W. 2), Sub-Inspector of the RPF who opened the consignment in the presence of the accused persons and it was found that it contained ganja under the first layer of the eggs. He took the accused persons in custody and detained them at RPF office. He wrote letter Ex.P-2 to the District Excise Officer, Jabalpur informing him about the state of affairs and requesting to conduct further investigation. On 29-11-1998 N. C. Jain (P.W.9), Additional DEO and Ajay Shanker Tiwari (P.W. 11), Excise Sub Inspector reached the Parcel Office and searched the boxes in the presence of the accused persons. There was 140 Kgs. of ganja in those boxes. It was seized as per seizure memo Ex. P-8 and the accused persons were arrested. The samples of the ganja were taken and duly sealed. The information relating to the search and seizure was sent to the District Excise Officer. The samples were sent to the Forensic Science Laboratory, Sagar and as per report Ex. P-23 it was confirmed that the commodity which was seized was ganja. 3. The accused persons pleaded not guilty. The samples of the ganja were taken and duly sealed. The information relating to the search and seizure was sent to the District Excise Officer. The samples were sent to the Forensic Science Laboratory, Sagar and as per report Ex. P-23 it was confirmed that the commodity which was seized was ganja. 3. The accused persons pleaded not guilty. They have denied that they went to the Parcel Office to take delivery of the parcel. According to them they had gone to Railway Station to see off one of the guests of accused Prakash and as they could not buy plateform ticket there was exchange of some hot words between them and Nawab Khan (P.W. 8) and he has got them falsely implicated in this crime. 4. The trial court after appreciation of the evidence on record has held that the accused persons had gone to the parcel office with the Railway Receipt endorsed in the name of accused Prakash and thus they were the persons who were in possession of ganja. It has been held that the procedural requirements of the Act were fully complied with. On these findings the accused have been convicted and sentenced as stated at the outset. 5. In this appeal it has been argued that the finding of the trial court that the accused persons were in possession of ganja is not correct. It is pointed out that they have nothing to do with the ganja found in the Parcel office. 6. The evidence on record has been scanned by this Court. There is overwhelming evidence to hold that 140 kgs. of ganja was found in the consignment in the Parcel office. That finding of the trial Court is indisputable. The only point to be decided is whether the accused persons were in 'possession' of this ganja. 7. M. P. Singh (P.W. 3) is the Parcel Clerk. He has deposed that 22 boxes had come by Tirupati Express and they were stored in the parcel office. He was asked by Nawab Khan, RPF Constable (P.W. 8) to give information to him if anyone comes to take delivery of these boxes. He has further deposed that on 28-11-1998 accused Prakash and Ashok had come with the Railway Receipt to take delivery of those boxes. He could not identify these accused persons in the court. The Railway Receipt was endorsed in the name of Prakash. He has further deposed that on 28-11-1998 accused Prakash and Ashok had come with the Railway Receipt to take delivery of those boxes. He could not identify these accused persons in the court. The Railway Receipt was endorsed in the name of Prakash. He informed Nawab Khan (P. W. 8) whose office is very close to the Parcel Office that these two persons have come to take the delivery. Then Nawab Khan (P.W. 8) and M. K. Sisodia (P.W. 2), RPF Inspector came there. The Sub-Inspector checked the consignment and found ganja therein. In cross-examination he has stated that on 28-11-1998 he allowed those two persons who had come to take the delivery to go and in his presence they were not taken into custody by the RPF Sub-Inspector. 8. Nawab Khan (P.W. 8) has deposed that he suspected that there was something else in the boxes and therefore on 22-11-1998 he gave the memo Ex. P-15-B to the Parcel Clerk to inform the RPF if anyone comes to take delivery of these boxes. On 28-11-1998 he was informed by the Parcel Clerk that two persons have come to take the delivery and they have produced the Railway Receipt. He went to the Parcel office and met those two persons. They were accused Prakash and Ashok. He called M. K. Sisodia (P.W. 2) and he asked their names and then they disclosed their names. The Sub-Inspector further checked the boxes and found ganja therein. M. K. Sisodia (P.W. 2) has deposed that on 28-11-1998 he was informed by Nawab Khan (P.W. 8) that two persons have come to take delivery of the parcel. He went to the Parcel office with Nawab Khan and found accused Prakash and Ashok in the Parcel office. He asked their names and on checking the parcel he found ganja below the layer of eggs. At that time also the accused persons were present. He wrote letter Ex. P-2 to the District Excise Officer and took the accused persons in custody. According to him the accused persons admitted before him that they have come to take delivery of the parcel. He brought them to the RPF office and kept them there in the night. It is admitted even by the accused persons that they were taken into custody by the RPF Sub Inspector on 28-11-1998. According to him the accused persons admitted before him that they have come to take delivery of the parcel. He brought them to the RPF office and kept them there in the night. It is admitted even by the accused persons that they were taken into custody by the RPF Sub Inspector on 28-11-1998. He has denied the suggestion that the accused persons were taken into custody because of the quarrel between them and Nawab Khan on the question of their not possessing the plateform ticket. 9. Ajay Shanker Tiwari (P.W. 11) is the Excise Sub Inspector. He has testified that on 29-11-1998 he was given the report Ex. P-2 of the RPF Sub-Inspector by the DEO. He went to the RPF office with N. C. Jain (P.W. 9), Additional D.E.O. and to the nearby Parcel office and he found accused Prakash and Ashok there. On that date accused Prakash paid the wharfage charges Rs. 37/- as per Receipt Ex. P-3 and signed on that receipt. He checked the boxes and found 140 kgs. of ganja therein. He prepared the seizure memo Ex. P-8 and the Panchnama Ex. P-9. He recorded the statements of accused Prakash and these are Ex. P-14 and Ex. P-19. He also recorded the statement of accused Ashok and that is Ex. P-18. He took samples of ganja and sealed them. He sent the samples to the Forensic Science Laboratory, Sagar and as per Report Ex. P-23 the commodity was found to be ganja. He informed the DEO about the seizure and the arrest of the accused persons as per report Ex. P-21 in compliance with section 57 of the Act. N. C. Jain (P.W. 9) has corroborated the testimony of the Excise Sub-Inspector. 10. K. K. Garewal (P.W. 6) was Supervisor in the Parcel office on 28-11-1998. He has not supported the prosecution case. He has been declared hostile. But he admits that ganja was found in the boxes. 11. As already stated the recovery of 140 kgs. of ganja from the boxes in the Parcel office is not in dispute. From the evidence discussed above, the nexus between the ganja and the accused persons is established. According to the evidence of M. P. Singh (P.W. 3), Parcel Clerk accused Prakash and Ashok had come to take delivery of the parcel and produced the Railway Receipt, a photo-copy of which is Ex. From the evidence discussed above, the nexus between the ganja and the accused persons is established. According to the evidence of M. P. Singh (P.W. 3), Parcel Clerk accused Prakash and Ashok had come to take delivery of the parcel and produced the Railway Receipt, a photo-copy of which is Ex. P-29-C. Though he could not identify them in the Court, it makes no difference as from the evidence of Nawab Khan (P.W. 8) and M. K. Sisodia (P.W. 2) it is proved that these two accused were found in the Parcel Office as the persons who had come to take delivery of the parcel and they were taken into custody and detained in the RPF Office until the arrival of the Excise Officers next day. The defence case that they had gone to the Railway plateform to see off a guest and they were caught because they had no plateform ticket is not at all true. It is not disputed that they were taken into custody on 28-11-1998. Therefore, the identity of the accused as the persons who came to take delivery of the parcel containing Ganja is fully established. Accused Prakash produced the Railway Receipt and signed on the delivery register. The Railway Receipt was endorsed in the name of accused Prakash. The wharfage receipt Ex. P-3 is also in his name. 12. The confessional statements of accused Prakash are Ex. P-14 and Ex. P-19 and the statement of accused Ashok is Ex. P-18. These have been proved by Ajay Shanker Tiwari (P.W. 11), Excise Sub-Inspector, who had recorded these statements. He is authorised to investigate the case as per section 53(2) of the Act. It has been held by the Supreme Court in Raj Kumar Karwal vs. Union of India, AIR 1991 SC 45 that section 25 of the Evidence Act which engrafts a wholesome protection must not be construed in a narrow or technical sense but must be understood in broad and popular sense. But at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under section 173 of the Code. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under section 173 of the Code. Unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under section 173, he cannot be described to be a 'Police Officer' under section 25. Evidence Act. The Officer, other then a police officer, invested under section 53 of the N.D.P.S. Act, 1985 with powers of an officer-in-charge of a police station is not entitled to exercise 'all' the powers under Chapter XII of the Criminal Procedure Code. including the power to submit a report or charge-sheet under section 173 of the Criminal Procedure Code that being so, such officer is not a 'police officer' within the meaning of section 25 of Evidence Act. 13. The confessional statements of the accused persons corroborate the testimony of M. P. Singh (P. W. 3), M. K. Sisodia (P.W. 2) and Nawab Khan (P.W. 8) on the point that accused Prakash and Ashok are the persons who had come to take delivery of the parcel containing ganja on the basis of the Railway Receipt endorsed in favour of accused Prakash. The confessional statements of the accused persons further go to show that they are engaged in the business of purchasing and selling ganja and they came to the Parcel Office to take delivery of the ganja. The inference is that the accused persons had full knowledge that the parcel contained ganja and it was constructively in their 'possession'. 14. The 'ganja' after its arrival at Jabalpur was in the custody of Parcel Office of the Railways as its carrier in its capacity as bailee. The accused persons came to the Parcel Office to take the delivery on the basis of the Railway Receipt Ex. P-29 endorsed in favour of accused Prakash. The accused persons were thus having the dominion or control over ganja. They had right to claim its delivery and therefore in legal parlance they were in constructive possession of the ganja. The Parcel Office had its "custody" or "detention" or "detentio" as it was called under Roman Law. P-29 endorsed in favour of accused Prakash. The accused persons were thus having the dominion or control over ganja. They had right to claim its delivery and therefore in legal parlance they were in constructive possession of the ganja. The Parcel Office had its "custody" or "detention" or "detentio" as it was called under Roman Law. Savigny said that possession consisted of two ingredients, 'corpus possessionis', effective control, and 'animus domini', the intention to hold as owner. The persons having right to immediate possession is frequently referred to in English Law as being the 'possessor', Salmond also says corporeal possession is "the continuing excise of a claim to the exclusive use of it". That is corpus and animus. 'Possession' has also been described as "to have and to hold". It embraces the conception of right as well as that of physical control. It is used in the sense to "own" or "entitled to". It means "the state of owing or having in one hands or power". This is also called 'possession in law'. It can be 'constructive'. Possession is a polymorphous term which may have different meanings in different contexts. 15. In the present case the accused persons had the right to take delivery of the parcels containing ganja. They owned it. They must be held to have been in its conscious possession. In Mohd. Akhtar vs. State of M. P., 1999 (2) MPLJ 525 it has been held by this Court after referring to the decision of the Supreme Court in Inder Sain vs. State of Punjab, AIR 1973 SC 2309 that in view of the language of section 35 of the Act the Court shall presume that the accused had knowledge of the contents of the parcel. The accused could rebut the culpable mental state by evidence beyond reasonable doubt. In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, AIR 2000 SC 821 the Supreme Court construing section 35 of the Act has held that the burden is on the accused to prove that he had no knowledge that the bags contained the contraband. The standard of such proof is delineated in Sub-section (2) as "beyond reasonable doubt". 16. The decision of the Supreme Court in Jagdish vs. State of M. P., 2002 (1) C.Cr. The standard of such proof is delineated in Sub-section (2) as "beyond reasonable doubt". 16. The decision of the Supreme Court in Jagdish vs. State of M. P., 2002 (1) C.Cr. J. 149 (SC) cited by the learned counsel for the appellants is not applicable to the present case as it is distinguishable on facts. There were several infirmities on account of which the case ended in acquittal. 17. In view of the above discussion the trial Court has rightly held that the accused were in unlawful 'possession' of 140 kgs. of ganja and their conviction under section 20(b)(i) of the Act is well merited. The sentence of imprisonment imposed by the trial Court cannot be said to be disproportionate. The sentence of fine is, however, reduced from Rs. 15,000/- to Rs. 5,000/- on each of the appellants. With this modification in the sentence of fine, the appeal is dismissed.