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2007 DIGILAW 1425 (PAT)

Ibopishak Singh v. Union Of India

2007-08-29

GHANSHYAM PRASAD

body2007
Judgment Ghanshyam Prasad, J. 1. The sole appellant has preferred this appeal against the judgment of conviction and order of sentence dated 29.11.2005 passed by Sri Vijay Kumar Sinha, Additional Sessions Judge-cum-Special Judge (N.D.P.S. Act), Kishanganj in Special Case No. 7/02. The sole appellant has been convicted under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "N.D.P.S. Act") and sentenced to undergo rigorous imprisonment for ten years with fine of Rs. 1,00,000/- (One lac) and in default to further undergo rigorous imprisonment for one year. 2. On 6.3.2006 at 4 A.M. the officials of Custom Department in course of routine checking at Fairing Gola. Kishanganj noticed a car (Cantessa Classic Model) coming from the side of Siliguri. They gave signal to the car to stop for checking but the driver speeded the car. Ultimately the car was made to stop near Kishanganj Railway Crossing. The driver of the car (the appellant) attempted to flee away but was caught by the preventing team. The appellant disclosed that one K. Shyam Sharma, the owner of the car along with another person, namely, Mahesh managed to flee away. They did search the car and ultimately recovered 40 Kg. of Ganja from the false chamber situated over fuel tank. The Ganja was seized in presence of the appellant and other independent witnesses. The sample of Ganja was also taken and later on sent to chemical analyst for test. The statement of the appellant was also recorded by the official of Custom Department. Ultimately pros ecution was launched against the appellant under Section 20(b)(ii)(c) of the N.D.P.S. Act. 3. In course of trial the prosecution examined altogether six witnesses including the complainant (P.W. 4), P.C. Surin, Inspector of Custom Department. P.Ws. 2 and 3 are constables in the Custom Department. P.W. 5, Ashok Kumar Das, is also an official of Custom Department and P.W. 6, Ratan Kumar Mishra is Superintendent (Vigilance) Custom Department. 4. The defence of the appellant was total denial of prosecution story and plea of innocence. He was employed as a driver since one and half months prior to the occurrence. He had no knowledge about any false chamber or presence of Ganja in the chamber. 5. In course of argument learned counsel for the appellant challenged the judgment in question mainly on two grounds; the first submission is that the appellant was a driver. He was employed as a driver since one and half months prior to the occurrence. He had no knowledge about any false chamber or presence of Ganja in the chamber. 5. In course of argument learned counsel for the appellant challenged the judgment in question mainly on two grounds; the first submission is that the appellant was a driver. The owner along-with his associate was also present in the car who managed to escape. This appellant had no knowledge about the presence of Ganja in false chamber of the car. It is further submitted that in absence of any material or evidence with regard to knowledge, the appellant cannot deemed to be in possession of illegal substance. The second submission is that the seizure has not been proved beyond all reasonable doubt. None of the seizure list witnesses has been examined. No explanation, worth the name, has been given for their non-examination. In support of above submissions, learned counsel for the appellant has placed reliance upon two decisions of this Court reported in Nathe Rai V/s. State of Bihar, 2007 3 BBCJ 94 [: 2007(Supp.) PLJR 608] and Lakhindra Rai V/s. The State of Bihar, 2007 3 PLJR 362 . 6. Ext. 5 is the complaint case lodged by P.W. 4, Mr. P.C. Surin, Inspector of Custom Department. There are two accused. This appellant has been made accused as driver of the car and one K. Shyam Sharma has been made accused as owner of the car bearing no. WB-02B-0887. Ext. 4 is interrogatory statement of the appellant. According to it, he was employed as driver one and half months before the occurrence. On the alleged date of occurrence he alongwith owner of the car and one Mahesh was going to Calcutta. He denied about the knowledge of presence of Ganja in false chamber of the car. All witnesses examined by the prosecution have stated about the recovery of Ganja from the false chamber of the car. However, there is nothing in the evidence to show that the appellant who was driver of the car had actually knowledge about the presence of Ganja in the car. 7. Section 54 of the N.D.P.S. Act raises presumption of commission of occurrence under N.D.P.S. Act merely on the basis of possession of illicit article unless and until contrary to it is proved. However, the main question is what constitutes "possession". 7. Section 54 of the N.D.P.S. Act raises presumption of commission of occurrence under N.D.P.S. Act merely on the basis of possession of illicit article unless and until contrary to it is proved. However, the main question is what constitutes "possession". Similar question fell for consideration before this Court in Nathe Rais Case (supra). In paragraphs 9 and 10 of the decision it has been held as follows: "Para 9.The word "possession" is used in various sections of Chapters III and IV of the N.D.P.S. Act. However, it has nowhere been defined under the Act. The apex court in a decision reported in Inder Sain V/s. State of Punjab, AIR 1973 SC 2309 has defined the real meaning of "possession" in a case of Opium Act. The language of Section 9 of the Opium Act is almost similar to that of Section 20(B) of the N.D.P.S. Act or Section 23 of the Act. In paragraphs 15 and 21 of the judgment it has been held as follows: "15. We think that the only question for consideration here is whether The appellant was in possession of opium. It was held in a number of rullings of the various High Courts that if possession of an article is made an offence, then there must be proof that the accused was knowingly in possession of the article. See the decisions in Emperor V/s. Santa Singh, AIR 1944 Lah 339; Sahendra Singh V/s. Emperor, AIR 1948 Pat 222, Abdul Ali V/s. The State, AIR 1950 Assam 152, Pritam Singh V/s. The State 68 Pun LR 200. (AIR 1967 Punj 50) and Sub-Divisional Officer and Collector, Shivasagar V/s. Gopal Chandra Khaund, AIR 1971 SC 1190 ." "21. It does not follow from this that the word "Possession" in S. 9 does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word "possess" connotes, in the context of S. 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge as an offence. A conviction under S. 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession." 8. The legislature could not have intended to make mere physical custody without knowledge as an offence. A conviction under S. 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession." 8. From the above decision coupled with the materials available on record it is quite clear that mere presence of Ganja in car without knowledge to the appellant does not amount to "possession" as contemplated under Section 54 of the N.D.P.S. Act. Therefore, conviction of the appellant under Section 20(b) of the N.D.P.S. Act without proof of knowledge with regard to possession of Ganja in car is apparently illegal and bad in law. 9. Other admitted fact is that the Ganja was seized before two independent witnesses namely Madan Poddar and Shankar Rai (Exts. 1 and 2). However none of them has been examined in this case. No explanaton worth the name has been given for their non-examination. Even the name of these witnesses does not figure in the complaint petiton in the list of witnesses. 10. The effect of non-examination of seizure list witnesses has been discussed in paragraphs 11 and 12 of the above cited decision in the case of Lakhindra Rai (supra) and it has been held as follows: "Para 11.There is no gainsaying that examination of seizure list witnesses is vital to prove the search and seizure. Mere attestation of seizure list by two persons is not sufficient. They are required to come in dock to prove the search and recovery. In this case none of the seizure list witnesses has been examained to support the seizure or search. In the complaint petition the names of seven witnesses have been mentioned but surprisingly the name of seizure list witnesses does not find place in the list of witness. Neither they have been examined in this case nor any explanation, worth the name, has been given by the prosecution for their non-examination. "Para 12.Non-examination of seizure list witnesses undoubtedly throws serious doubts on the genuineness of the seizure and search which cuts the very root of the prosecution story. Therefore, only irresistible conclusion would be that if they were examined they would not have supported the search and seizure." 11. "Para 12.Non-examination of seizure list witnesses undoubtedly throws serious doubts on the genuineness of the seizure and search which cuts the very root of the prosecution story. Therefore, only irresistible conclusion would be that if they were examined they would not have supported the search and seizure." 11. From the above discussion of the facts and circumstances as well as law it is quite clear that the judgment in question is not sustainable in the eye of law and accordingly it is fit to be set aside. 12. In the result, this appeal is allowed. The impugned judgment and order of sentences hereby set aside. The appellant is directed to be released forthwith, if not wanted in any other case.