JUDGMENT : Raghubir Dash, J. - This Criminal Appeal is in challenge of the judgment dated 23.10.2009 passed by the learned Additional Sessions Judge-cum-Special Judge, Malkangiri in Criminal Trial No.3 of 2008 (formerly, C.T. No.195 of 2007 in the Court of Sessions Judge-cum-Special Judge, Koraput, Jeypore) wherein the Appellant has been convicted of the offence punishable under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act (in short 'the Act') and sentenced to undergo R.I. for 10 years and to pay fine of Rs. 1,00,000/-, in default, to undergo another term of R.I. for one year. 2. The Appellant is one of the two accused persons against whom the prosecution was lodged. According to the prosecution, on 11.11.2007 at about 5.00 A.M. the S.I. of Excise, Malkangiri with his staff while on patrolling duty received reliable information about illegal transportation of Ganja in one Tata Specio Jeep bearing registration No.OR17D-7300. Sometime thereafter, when the patrolling party noticed that the afore stated vehicle was proceeding towards Jeypore in a high speed they tried to stop the vehicle. The Excise Officials chased the vehicle and ultimately when they could make the vehicle stop at Govindapalli Forest Check Gate the driver of the vehicle, namely, Narayan Sahu fled away. But, the present Appellant, who was an occupant of that vehicle, made an abortive attempt to run away. He was apprehended on the spot. On being asked he disclosed his identity. Securing the presence of an Executive Magistrate and observing formalities, the Appellant's person was searched but nothing could be found. However, on a search of the jeep in question recovery of 5 jute bags containing suspected Ganja was made. The substance smelled like Ganja. The material was weighed and it was found that in total 144 Kgs. of suspected Ganja was there in all the jute bags. Sample of the seized article was collected from the contents of each of the jute bag and after observing all formalities the collected samples were packed and sealed separately and the articles recovered during the search were seized. The Appellant was arrested and the seized articles were produced before the learned Special Judge. Subsequently, the sample so collected was sent for chemical examination through the S.D.J.M., Malkangiri. C.E. Report confirmed that the sample sent for chemical examination was nothing but Ganja as defined in N.D.P.S. Act. The Appellant was arrested and the seized articles were produced before the learned Special Judge. Subsequently, the sample so collected was sent for chemical examination through the S.D.J.M., Malkangiri. C.E. Report confirmed that the sample sent for chemical examination was nothing but Ganja as defined in N.D.P.S. Act. On completion of enquiry prosecution report was submitted against the Appellant as well as the driver of the jeep showing the latter as an absconder. 3. The defence plea is one of complete denial of all the allegations. 4. During trial, four witnesses were examined from the side of the prosecution. P.W.1 is an independent witness to the seizure but he has turned hostile. P.W.2 is the S.I. of Excise. P.W.3 is one Excise Constable, who was a member of the patrolling party. P.W.4 is the Executive Magistrate who, on the requisition of the complainant, was deputed to the spot to remain present at the time of search and seizure. Appellant examined himself as D.W.1. Another person is examined as D.W.2. 5. Learned Special Judge having dealt with the evidence available on record found that the witnesses supporting the prosecution are reliable and creditworthy and further observing that offence for which the Appellant was charged could be duly established beyond all reasonable doubts, passed the order of conviction and sentence as afore stated. 6. The Appellant challenges the impugned judgment on several grounds. Reiterating the grounds narrated in the memo of appeal learned counsel for the Appellant further submits that mandatory provisions contained in Section 50 as well as other provisions of the N.D.P.S. Act have not been complied with for which the impugned judgment is not sustainable. It is further submitted that there are material contradictions in the evidence of the prosecution witnesses going to the root of the case but the learned court below has not properly weighed the same while evaluating the evidence. It is further contended that all the incriminating circumstances were not put to the accused-Appellant during his examination under Section 313(1)(b), Cr.P.C. It is also submitted that independent witness having not supported the prosecution case, it is not safe to rely on the testimony of the interested witnesses. No dispute has been raised on the authenticity or correctness of the opinion expressed by the Chemical Examiner that the sample of the seized substance sent for chemical test was found to be Ganja. No dispute has been raised on the authenticity or correctness of the opinion expressed by the Chemical Examiner that the sample of the seized substance sent for chemical test was found to be Ganja. Now, the contentions raised by the Appellant shall be taken up one after another. 7. The argument on non-compliance of Section 50 of the Act is not well founded. It is well settled that Section 50 would come into play only in the case of a search of a person as distinguish from search of any premises etc. In this case the contraband article was recovered from the vehicle of which the Appellant was found to be an occupant at the time it was intercepted. Though search of the Appellant's person is said to have been conducted in presence of an Executive Magistrate nothing has been recovered. Therefore, any departure from proper compliance of Section 50 of the Act does not strike at the root of the case. Non-compliance of any other specific mandatory provisions of law laid down in the Act has not been pointed out. 8. Though it is contended that recording of the accused statement at the time of examination of the accused under Section 313(1)(b) Cr.P.C. is defective, nothing is pointed out as to how and at what point any defect has occurred so as to enable the Court to find out whether such violation causes prejudice to the accused-Appellant. 9. The contention that there are material contradictions in the testimony of the prosecution witnesses going to the very root of the case is not well founded. No such material contradiction has been pointed out and on perusal of the depositions of P.Ws.1 to 4 no material contradiction could be noticed. 10. Learned counsel for the Appellant forcefully argues that the prosecution has failed to prove that the Appellant was in conscious possession of the seized contraband. It is submitted that mere presence of the Appellant in the vehicle when it was stopped by the Excise Officials after a good chase is not sufficient to raise a presumption that the Appellant was in conscious possession of the "Ganja" in question. It is submitted that mere presence of the Appellant in the vehicle when it was stopped by the Excise Officials after a good chase is not sufficient to raise a presumption that the Appellant was in conscious possession of the "Ganja" in question. Learned counsel for the State, in reply, submits that the Appellant was an occupant of the vehicle and his conduct, immediately after it was detained by the Excise Officials, is sufficient to give rise to an inference that the Appellant was in conscious possession of the "Ganja" He invites attention to the testimony of P.Ws.2 and 3 who have stated that immediately after the vehicle was detained the driver could run away but the Appellant tried his best to run away by throwing one Ganja bag at the Excise staff to hinder them but he could be apprehended at the spot. There are no other facts and circumstances which are relevant for consideration while deciding as to whether the Appellant was in conscious possession of the "Ganja". Section 35 of the Act lays down that in any prosecution for an offence under the 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. However, Hon'ble Apex Court have observed in Abdul Rashid Ibrahim Mansuri v. State of Gujarat; AIR 2000 SC 821 that if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that 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 evidence to prove the fact that he had no such culpable mental state. During the trial the Appellant has examined himself and another witness to prove that because of previous enmity the S.I. of Excise has foisted the case on him. Learned Court below has rightly discarded the defence evidence. During the trial the Appellant has examined himself and another witness to prove that because of previous enmity the S.I. of Excise has foisted the case on him. Learned Court below has rightly discarded the defence evidence. P.Ws.2 and 3 have adduced sufficient evidence to prove that the Appellant was found to be an occupant of the vehicle when it was stopped and he tried to escape from being captured by throwing one of the bag containing "Ganja" at the reading party members but his attempt could be foiled. It is to be decided as to whether this evidence gives reasonable assurance to the Court that the Appellant could have had the knowledge or the required intention to presume that he was in conscious possession of the seized "Ganja" and whether the Appellant could be said to have discharged the burden cast on him under Section 35 of the Act by adducing evidence to that effect. It is strange to note that instead of giving explanation as to how the Appellant was travelling in the vehicle carrying "Ganja" he has adduced evidence showing that he has been implicated because of his enmity with the S.I. of Excise. Since he was an occupant of the vehicle and tried to escape when the Excise Officials detained the vehicle and no explanation comes from the defence as to how he was travelling with another occupant of the vehicle, who could run away, and for what purpose he was travelling by the said vehicle, a valid presumption has to be raised against the Appellant that he had the culpable mental state in respect of the seized "Ganja". In the judgment of the Hon'ble Apex Court reported in 2003 (4) Crimes 60 (SC) (Madan Lal and Anr. v. State of Himachal Pradesh) facts were like this: One car carrying the accused persons therein was intercepted. 'Charas' was seized from the car. The accused persons knew each other. They were travelling together from the same destination. They did not explain how they were travelling by that car. On such facts and circumstances, it was held by the Apex Court that presumption under Section 35 of the Act could be raised against the accused persons including the driver of the car. Relevant facts and circumstances available in the case at hand are already reflected above. They did not explain how they were travelling by that car. On such facts and circumstances, it was held by the Apex Court that presumption under Section 35 of the Act could be raised against the accused persons including the driver of the car. Relevant facts and circumstances available in the case at hand are already reflected above. Having regard to the same this Court finds that learned Court below has rightly held the Appellant to be in conscious possession of the seized "Ganja". Once it is presumed that the Appellant was in conscious possession of the contraband article which has not been satisfactorily accounted for, a presumption under Section 54 of the Act can be raised that the Appellant committed the offence punishable under Section 20(b)(ii)(C) of the Act. 11. It is also argued by the learned counsel for the Appellant that there is no satisfactory evidence to show that the seized contraband article and the sample packets were kept in proper custody and therefore, chance of tampering with the same cannot be ruled out. It is stated by P.W.2 and corroborated by P.W.4 that in presence of the latter (an Executive Magistrate) seizure of the packets containing "Ganja" was made, sample from each of the packets was collected and, thereafter, the packets containing the substance and the sample collected there from were separately packed and sealed using the former's personal brass seal and, thereafter, the brass seal was delivered to be kept in the custody of the Executive Magistrate who executed one zimanama (Ext.7) to that effect. It is argued that when the brass seal was never seized from the custody of P.W.2, (the S.I. of Excise), the question of giving it in the zima of P.W.4 does not arise and as such prosecution's claim that it was given in the custody of P.W.4 has to be viewed with suspicion. Such proposition is not acceptable. The fact that one brass seal was used for the sealing of different packets has been proved and the Executive Magistrate admits that he received the same brass seal from P.W.2 by executing a zimanama. Such evidence cannot be disbelieved merely because a seizure list in respect of the said brass seal has not been prepared. The fact that one brass seal was used for the sealing of different packets has been proved and the Executive Magistrate admits that he received the same brass seal from P.W.2 by executing a zimanama. Such evidence cannot be disbelieved merely because a seizure list in respect of the said brass seal has not been prepared. Since brass seal remained in custody of the Executive Magistrate, tampering of the sealed packets cannot be presumed unless and until it is shown that the seal impressions appearing on any of the sealed packets did not correspond to the specimen impression of the brass seal or, there is evidence of physical tampering with the seal appearing on any of the packets. The chemical examiner's report (Ext.11) reflects that five samples of "Ganja" were received on 17.12.2007 and seal impressions on the sealed packets were identical with the specimen impression of the seal given on the forwarding report accompanying the samples. This being the nature of evidence available on record, no reasonable doubt can be raised over the proper custody of the seized 'Ganja' as well as the sample packets. It appears, since the learned court below has awarded minimum punishment as prescribed under the Act, no objection has been raised on the propriety of the sentence. 12. Having dealt with all the points raised by the learned counsel for the appellant and finding that the impugned judgment is not liable to be interfered with, this Court dismisses the Criminal Appeal confirming the impugned order of conviction and sentence. Final Result : Dismissed