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2013 DIGILAW 469 (JK)

Bashir Ahmad Zaroo v. State Of J&K

2013-08-20

Virender Singh

body2013
1. This appeal is directed against the judgment of Principal Sessions Judge (Special Judge for offence punishable under section Narcotic Drugs and Psychotropic Substances Act), Srinagar dated 19.04.2012 rendered in case FIR No. 120/2001 registered at Police Station Ram Munshi Bagh under sections 8/20 of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short `NDPS Act') whereby the convict-appellant Bashir Ahmad Zaroo son of Abdul Ahad Zaroo resident of Sonwar Srinagar, aged 65 years (hereinafter to be referred to as `accused') stands convicted for the aforementioned charges and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac, in default thereof, to undergo further imprisonment for two years. 2. It would be pertinent to mention here that one Ama Ganie son of Qadir Ganie resident of Lidder Meien Sangam, the co-accused of the accused from whom the recovery of the contraband (1 kg & 75 gms of charas) was allegedly effected as he was carrying the same in a bag died during the trial which fact also stands reflected in the interim order dated 28.02.2007 available on trial Court record, reference thereof also made in para No. 4 of the impugned judgment. 3. The facts relevant to the case at hand are as under: 4. A written report was presented in Police Station Ram Munshi Bagh, Srinagar on 01.09.2001 by PW Hav. Manjeet Singh, a CRPF personnel stating therein that at about 11 am, two persons namely Ama Ganie (dead) and the accused were apprehended in suspicious circumstances by CRPF personnel on a barrier laid by them at a particular point known as Gate Shivpora and from their possession, fifteen pieces wrapped in a corn cob total weighing 1 kg and 75 gms of charas being carried in a polythene bag were recovered. Custody of both the accused was then handed over to the concerned police by PW Hav. Manjeet Singh. Custody of both the accused was then handed over to the concerned police by PW Hav. Manjeet Singh. On receipt of said written report, formal FIR No. 120/2001 came to be registered in the concerned police station and the investigation ensued by PW Mohd Afzal Assistant Sub Inspector (ASI) of Police Station Ram Munshi Bagh who, after completing all the procedural formalities including producing the contraband before the Executive Magistrate for taking sample for the purposes of sending it to FSL for analysis, ultimately submitted the challan against both the accused for regular trial who were charged sheeted also for the aforesaid offences which has now ended in the conviction of the accused and proceedings against Ama Ganie (dead) abated because of his death during the trial. 5. In order to prove the charge against the accused, the prosecution has examined the following witnesses: 6. i. Hav. Manjeet Singh No. 800675769/Bn CRPF, ii. Const. Madan Lal No. 891222256, iii. HC. Ghulam Nabi, iv. Shakeel Ahmad Wani, Scientific Assistant FSL and v. Mohammad Afzal Assistant Sub Inspector. 7. On the basis of incriminating evidence available on record, the accused was examined under section 342 CrPC in which he denied having any recovery of contraband been effected from his possession. However, he stated that some goods might have been recovered from aforesaid Ama Ganie (dead). He also stated answering to one of the questions put to him under section 342 CrPC with regard to the material being carried in the bag by Amar Ganie, that, `it was Tobacco' and the said piece of evidence has been taken into account by the learned trial Court for holding him guilty for the charge by attracting section 35 of NDPS Act. 8. One Mohd. Yousuf Dar has been produced by the accused in his defence who talks high of his character. However, his evidence is of no relevance to the case. 9. Heard Mr. Shah learned counsel for the accused and Mr. R.A. Khan learned AAG appearing for the State. Trial Court record has also been perused. 10. Mr. 8. One Mohd. Yousuf Dar has been produced by the accused in his defence who talks high of his character. However, his evidence is of no relevance to the case. 9. Heard Mr. Shah learned counsel for the accused and Mr. R.A. Khan learned AAG appearing for the State. Trial Court record has also been perused. 10. Mr. Shah submits that the present case has been registered at the instance of PW Manjeet Singh who is not a witness to the recovery as he only followed the instructions of his superior Officer (Deputy Commandant), who disclosed to him that he had caught two persons along with contraband and directed him to take them to the police station upon which direction he followed and got the FIR lodged. Learned counsel submits that Deputy Commandant, however, has not stepped into the witness box to prove the recovery and the evidence of Pw Manjeet Singh, in this eventuality, is of no consequence. 11. Mr. Shah then submits that as per the evidence of constable Madan Lal another CRPF personnel and deployed at Gate Shivpora, it is Ama Ganie (dead) who was carrying polythene bag in his hand and when it was checked, Charas was found in it upon which he caught both the accused and told about the said recovery to Havaldar Rama Shanker, who in turn, apprised his senior officer about it. According to learned counsel, besides the evidence of PW Madan Lal, the prosecution has no material against the accused and this piece of evidence does not prove the ingredients of conscious possession qua the accused so as to hold him guilty for the charge. Learned counsel submits that PW Madan Lal in his cross examination has categorically stated in so many words that it was Ama Ganie who was carrying the bag of Charas in his hand. 12. Mr. Shah further submits that from the evidence of Mohd Afzal, Assistant Sub Inspector, who is the I.O of the present case, nothing incriminating has come against the accused as he formally arrested both the accused on the basis of statement of complainant PW Hav. Manjeet Singh and admittedly no contraband was recovered in his presence. 13. Mr. 12. Mr. Shah further submits that from the evidence of Mohd Afzal, Assistant Sub Inspector, who is the I.O of the present case, nothing incriminating has come against the accused as he formally arrested both the accused on the basis of statement of complainant PW Hav. Manjeet Singh and admittedly no contraband was recovered in his presence. 13. Mr. Shah lastly submits that, it appears that the learned trial Court has shifted the burden of proof upon accused by invoking section 35 and 54 of NDPS Act simply on the ground that he could not tender any explanation vis-a-vis his presence along with aforesaid Ama Ganie (dead) on spot and that he also lied saying that there was Tobacco in the bag, when asked by constable Madan Lal, whereas Ama Ganie (dead) disclosed that it was Charas. According to learned counsel, presumption of culpable mental state would be attracted only when all the ingredients of offence are proved against the accused beyond reasonable doubt and in the case at hand, the prosecution has failed miserably on this count. 14. Learned counsel goes on to submit that the learned trial Court has picked up some portion from the answer tendered by accused to a particular question put to him when examined 342 CrPC wherein he stated that some goods were recovered from Ama Ganie (dead) and he stated that it was tobacco. According to learned counsel, the approach adopted by the learned trial Court for presuming culpable mental state of the accused, on the basis of the evidence available on record is not sustainable as no knowledge can be attributed to the accused vis-a-vis the possession of the contraband much less conscious possession. 15. Mr. Shah, on the strength of aforesaid submissions, prays for acquittal of the accused of the charges framed against him by setting aside the impugned judgment. 16. Per contra, Mr. 15. Mr. Shah, on the strength of aforesaid submissions, prays for acquittal of the accused of the charges framed against him by setting aside the impugned judgment. 16. Per contra, Mr. Khan learned AAG submits that from the evidence, it is apparently clear that the present accused and Ama Ganie (dead) were together when apprehended at a particular point by CRPF Personnel, therefore, both of them were in knowledge of the fact that the goods which were being carried by them contained contraband material only, as such, recovery of contraband from possession of one would not absolve the other, that too when it has come in evidence that the accused immediately, on being asked by CRPF Personnel holding the Naka about the contents of the material being carried in the bag, he lied saying that it was Tobacco, whereas it was Charas. According to learned State counsel, this fact itself is enough to presume culpable mental state of the accused and the learned trial Court on the basis of this piece of evidence has rightly held him guilty for the charge for which he has no escape. He, thus, prays for upholding the conviction and sentence of accused as already recorded vide impugned judgment. 17. Possession is the core ingredient to be established by the prosecution before the accused is subjected to punishment under NDPS Act. The word `possession', no doubt, has different meaning and it is quite elastic in its connotation. The possession and ownership need not always go together, but the minimum requisite element which has to be satisfied is custody or control over the goods. The presumption of culpable mental state would be attracted only when all the ingredients of offence in which the possession of contraband which, undoubtedly, is the fundamental ingredient is proved against the accused beyond reasonable doubt. It goes without saying that if the prosecution fails to prove that the accused was in possession of contraband article, section 35 of NDPS Act and for that matter section 54 of the said Act would not be attracted and, therefore, question of invoking section 35 of NDPS Act for shifting the burden of proof on accused would not arise. It goes without saying that if the prosecution fails to prove that the accused was in possession of contraband article, section 35 of NDPS Act and for that matter section 54 of the said Act would not be attracted and, therefore, question of invoking section 35 of NDPS Act for shifting the burden of proof on accused would not arise. The present case as one finds is primarily revolving around that core issue only and the learned trial Court for presuming the culpable mental state of the accused has relied upon a particular fact brought on record by PW Constable Madan Lal when he stepped into the witness box and the reply/answer tendered by the accused in one of the questions put to him while examining him under section 342 CrPC. 18. Conceded position before the Court is that except the evidence of PW Constable Madan Lal, there is no evidence worth the name which would prove the factum of recovery of contraband as neither PW Manjeet .Singh the first informant nor Mohd Afzal the I.O of the present case are the witness to the recovery of contraband. 19. At the cost of repetition, it may be stated here that PW Constable Madan Lal is very categoric in saying on oath that the Charas was recovered from the polythene bag being carried by aforesaid Ama Ganie (dead) in his hand. However, when he asked the accused as to what it was, in reply he told him that it was Tobacco, whereas Ama Ganie disclosed that it was charas. Admittedly, this is only piece of evidence against the accused which weighed in the mind of the learned trial Judge for holding him guilty for the charge of having been in conscious possession of contraband (charas). It would be relevant to reproduce the question put to the accused in this regard when he was examined under section 342 CrPC: Question: PW Madan Lal has given statement against you that on 01.09.2001 at Shivpora, charas comprising of 15 gandrian contained in the polythene bag has been recovered from your possession and from the possession of accused No. 1. Charas which weighed one kg and 75 gms was brought under seizure which came to be identified by the witness in this Court during identification and he has identified you in open Court. Charas which weighed one kg and 75 gms was brought under seizure which came to be identified by the witness in this Court during identification and he has identified you in open Court. You, during the recovery proceedings, had told the accused that seized charas was in fact tobacco, whereas accused Ama Ganie had stated that seized goods were charas. What you have to say about it ? Answer: PW has not tendered any evidence against me. However, as against accused No. 1 the witness has stated that some goods were recovered from him. I stated that it was tobacco, whereas accused Ama Ganie (dead) alone had said that it was charas. 20. The sole question now arises for consideration of the Court is, whether on the aforesaid facts available on record, the prosecution has been able to establish the custody or control of the accused over the contraband (charas) when admittedly it is recovered from a polythene bag being carried by Ama Ganie who was also checked at the barrier by CRPF personnel. The answer would be in negative. 21. Assuming for the sake of an argument that the accused and Ama Ganie (dead) came together when they were asked to produce their Identity cards by PW Madan Lal at Gate Shivpora, though it has come in evidence that both are residents of two different places viz, accused hailing from Sonwar Srinagar and Ama Ganie (dead) hailing from Sangam, Srinagar and that the accused could show his identity card, whereas Ama Ganie could not, yet it cannot be said with certainty or beyond any shadow of doubt that the accused had the knowledge as to what was being carried in the polythene bag by Ama Ganie. Stretching it further, it is quite possible that Ama Ganie who might be accompanying the accused disclosed to him that polythene bag which he was carrying in his hand was containing some quantity of Tobacco and the accused when asked by constable Madan Lal disclosed the same fact to him without concealing anything and Ama Ganie, who, in fact, had the knowledge that the polythene bag which was in his hand was containing contraband material (charas) could not possibly conceal that fact, hence disclosed to the CRPF personnel that it was Charas only knowing very well that he was caught and had no escape. Under the present set of circumstances, Ama Ganie could not tell lie before CRPF personnel and for that matter, even the accused could not lie as the bag was already checked. 22. If one reads the evidence of constable Madan Lal, the only witness to the recovery and the interrogation vis-a-vis the bag being carried by Ama Ganie (dead), it appears that the sequence in which constable Madan Lal has stated in the Court is that after the recovery was effected; both the accused were asked as to what it was and then in their reply, accused Bashir Ahmad told him that it was Tobacco, whereas Ama Ganie (dead) told him that it was Charas. Some part of the evidence in this regard is reproduced as under: ".................... on 01.09.2001, I saw two persons who were walking. They were asked for their identity cards. Accused Bashir had his identity card with him, whereas the other was not having any identity card. Accused Ama Ganie was carrying a polythene bag. When I checked the polythene bag it contained 15 pieces of charas. I caught them and informed my Hav. Rama Shanker Tiwari who in turn informed his senior. Thereafter my senior took action in the matter. Charas is shown to me in the open Court. It is the same as had been seized by us and the polythene bag is also the same as had been seized along with Charas from the accused. I had asked the accused as to what it was, in reply, accused Bashir told me that it was Tobacco, whereas accused Ama Ganie told me that it was charas. Thereafter, both the accused were arrested and police came on spot .." 23. From the aforesaid evidence on record, it is very difficult to hold that the accused was the common carrier of the contraband and that he had the knowledge that the goods contained in the polythene bag being carried by Ama Ganie (dead) in his hand was containing Charas only and no other material. In other words, the prosecution has miserably failed to prove beyond any shadow of reasonable doubt the possession, much less conscious possession of the contraband qua the accused which is the core ingredient to be established before holding him guilty of the charge. 24. In other words, the prosecution has miserably failed to prove beyond any shadow of reasonable doubt the possession, much less conscious possession of the contraband qua the accused which is the core ingredient to be established before holding him guilty of the charge. 24. Let us now advert to the question of invoking section 35 of NDPS Act and for that matter, section 54 of the said Act for shifting the burden of proof on accused. 25. The provisions of section 35 of NDPS Act constitute a remarkable departure from the existing principles of criminal jurisprudence. According to the principles of criminal jurisprudence, the prosecution is required to prove beyond reasonable doubt every element and every ingredient which is essential to constitute an offence. Section 35 of NDPS Act engrafts a deviation from the general principles and it contemplates that where in any prosecution under the NDPS Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state and it will be for the accused to prove by way of defence that he had no such mental state with respect to the act shared as an offence in that prosecution. 26. The provisions of section 35 of the NDPS Act, however, would be attracted where in the first place the prosecution has succeeded in providing all the ingredients of the offence against the accused beyond reasonable doubt except the requisite culpable mental state. Section 35 of the Act cannot be invoked to dispense with proof of the offence by the prosecution. Section 35 of the Act would come into play when the prosecution has established the ingredients of the offence but the accused seeks to displace the inference of guilty by pleading a fact or circumstance which has the effect of disproving a fact which constitutes an ingredient of the offence. Once the prosecution fails to prove the possession of the accused qua the contraband allegedly recovered, certainly the question of invoking section 35 of NDPS Act for shifting the burden of proof on the accused to prove that he did not have the necessary knowledge in respect of contraband, therefore would not arise. 27. Once the prosecution fails to prove the possession of the accused qua the contraband allegedly recovered, certainly the question of invoking section 35 of NDPS Act for shifting the burden of proof on the accused to prove that he did not have the necessary knowledge in respect of contraband, therefore would not arise. 27. Testing the case at hand on the evidence available on record, as discussed hereinabove, the prosecution has woefully failed to prove the possession, much less conscious possession of the accused vis-a-vis the contraband admittedly recovered from Ama Ganie (dead), as such, presumption of culpable mental state qua him would not be attracted at all. 28. As stated above, the learned trial Court has held the accused guilty presuming that section 35 and 54 of NDPS Act are attracted in this case, inasmuch as he could not prove his innocence vis-a-vis conscious constructive possession of the contraband as an active accomplice. In considered view of the Court, the view taken by the learned trial Court would not be sustainable, once the possession of the contraband qua the accused is not established by the prosecution to the hilt. 29. Although, the Court finds certain other infirmities also in the prosecution case but entering into a detailed discussion on that aspect would be an exercise in futility when the case of the prosecution falls on the ground on account of aforesaid basic flaw in it. 30. In the result, the appeal at hand is allowed and the conviction/sentence slapped upon the accused for the offence punishable under section 8/20 of NDPS Act as recorded by learned trial Court vide impugned judgment is hereby set aside. He is acquitted of the charges framed against him. 31. The accused is stated to be in custody since the date of his conviction and shall now be released forthwith, if not required in any other case. Registrar Judicial to communicate the order to the concerned authorities without any delay. 32. Appeal stands disposed of.