JUDGMENT Sanjay Karol, Judge Appellant-convict Sesh Ram, hereinafter referred to as the accused, has assailed the judgment dated 21.4.2012, passed by Special Judge (II), Kinnaur at Rampur, Himachal Pradesh, in Sessions Trial No.61- AR/3 of 2011, titled as State of Himachal Pradesh v. Sesh Ram, whereby he stands convicted of the offence punishable under the provisions of Section 20(b)(ii)(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for a period of ten years and pay a fine of Rs.1,20,000/-, and in default thereof, to further undergo simple imprisonment for a period of two years. 2. It is the case of prosecution that a police party of the State CID, Police Station, Bharari (Shimla), was on duty in the field. They had left the Police Station on 20.2.2011 and spent two nights at a place known as Nogli. On 22.2.2011, the party headed towards Nirmand Baghipul side and at about 1 p.m., while they were just 1 km behind Baghipul, they saw the accused coming with a Pithu on his back. Seeing the accused, SI Rattan Singh (PW-7), who was heading the police party, stopped the vehicle and enquired the area from which he was coming. Not finding a satisfactory response, police officials enquired as to what he was carrying in the bag. At that accused got scared. Hence, on suspicion, the bag was searched, from which Charas in the shape of small balls and sticks, wrapped in two carry bags, was recovered. In the presence of police officials ASI Rajesh Kumar (PW- 1) and Constable Nazar Lal (PW-11), Memo of identification (Ex.PW-1/A) was prepared. Upon weighment, the contraband substance was found to be 8 kgs, which was sealed in a parcel with seal impression ‘L’. NCB form (Ex.PW-6/D) was filled up in triplicate. HC Tilak Raj (PW-3) took the Ruka to the CID Police Station, Bharari. Ruka was also sent through FAX by Constable Parkash Chand (PW-10), from the shop of Shri Ajit Sankhian (PW-2), on the basis of which FIR No.3, dated 22.2.2011 (Ex. PW-6/A) was registered by Shri Tenjing Shashni (PW-6). The file was taken to the spot by HC Devinder (PW-8). Accused was arrested. Ruka was also sent through FAX by Constable Parkash Chand (PW-10), from the shop of Shri Ajit Sankhian (PW-2), on the basis of which FIR No.3, dated 22.2.2011 (Ex. PW-6/A) was registered by Shri Tenjing Shashni (PW-6). The file was taken to the spot by HC Devinder (PW-8). Accused was arrested. With the completion of investigation on the spot, SI Rattan Singh entrusted the case property to Shri Tejjing Shashni, who resealed the same with his own seal of seal impression ‘H’. HC Parkash Chand (PW-4), to whom the case property was entrusted, made entries in the Malkhana Register (Ex.PW-4/C) and sent it to the Forensic Science Laboratory, Junga, through HC Bhagirath (PW-9). Repot of the Laboratory (Ex. PW-6/D) was obtained by the police. Also, Special Report (Ex.PW-5/A), taken by Constable Nazar Lal, was delivered in the Office of the Superintendent of Police (Crimes), State CID, which was received by ASI Shiv Ram (PW-5). With the completion of investigation, which, prima facie, revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as 11 witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took the following defence: “I am innocent. The police party had been in the area for last many days meeting people and staying locally. On 22.02.2011 they made telephone calls to may people including Jai Singh of village Tharla and also called me to Jaon Bazar. They were accompanied one lady inspector in civil dress and one person from Nalagarh side. In presence of Jai Singh and local shopkeepers and a tailor master I was arrested and taken to PWD rest house Nirmand and documents were prepared there. The contraband was collected by the police people with the help of the person belonging to Nalagarh and was planted on me.” In defence, accused examined one witness. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of the charged offence and sentenced him, as aforesaid. Hence, the present appeal by the accused. 6. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of the charged offence and sentenced him, as aforesaid. Hence, the present appeal by the accused. 6. Learned counsel for the appellant, attacking the judgment of trial Court, has made the following submissions: i) Area in question is prone to trafficking of Charas. Police had prior information and detection of such crime was the reason for the police to be present on the spot. Under these circumstances, there is infraction of provisions of Sections 42, 52 and 57 of the Act. ii) In the absence of non-association of independent witnesses, testimony of police officials is rendered unreliable and unbelievable. iii) Defence set up by the accused stands probablized through testimony of defence witness so examined by him. 7. Mr. V.S. Chauhan, learned Additional Advocate General, has supported the findings of fact and judgment, so rendered by the trial Court. 8. Having perused the testimony of the prosecution witnesses, at the threshold, it be only observed that there is nothing on record to even remotely suggest, that the area in question is prone to trafficking of drugs. Also, there is nothing on record to even remotely suggest that police party was on patrol duty in the area, in connection with detection of crime pertaining to narcotic substances. Under these circumstances, there is no question of violation of the provisions of Sections 42, 52 and 57 of the Act. 9. Rattan Singh (PW-7), who headed the police party, has categorically deposed that the police party left Shimla on 20.2.2011. They spent two nights at a place known as Nogli and only in the morning of 22.2.2011, they left towards Nirmand Baghipul side. Further, just 1 km before Baghipul, he saw the accused, holding a Pithu on his back. He made enquiries to which there was no satisfactory response. Also accused got scared. Hence, on suspicion, after informing him of his statutory rights, and obtaining his consent, the bag was searched. Police officials ASI Rajesh Kumar and Nazar Lal were associated in this process. From the bag, contraband substance i.e. Charas, weighing 8 kgs, was recovered. The same was sealed with seal impression ‘L’ NCB form was filled up in triplicate and the property taken onto possession, vide Memo (Ex.PW-1/C). Ruka (Ex. PW-3/A), alongwith case property, was sent through Constable Tilak Raj to the Police Station. From the bag, contraband substance i.e. Charas, weighing 8 kgs, was recovered. The same was sealed with seal impression ‘L’ NCB form was filled up in triplicate and the property taken onto possession, vide Memo (Ex.PW-1/C). Ruka (Ex. PW-3/A), alongwith case property, was sent through Constable Tilak Raj to the Police Station. On 23.2.2011, after receiving the case file, remaining formalities were completed. Ruka, which was sent by FAX, bearing endorsement of SHO Tenjing, was taken on record. 10. Apart from corroborating the aforesaid version, Tilak Raj has deposed that he delivered the case property to SHO Tenjing. He is categorical that so long as the case property remained with him, it was not tampered with. 11. Testimony of ASI Rajesh Kumar, Constable Parkash Chand (PW-10) and Constable Nazar Lal (PW- 11) is also to similar effect. Additionally, Parkash Chand has deposed that he faxed the Ruka from Sankhian Book Depot at Nirmand and obtained cash Memo (Ex. PW-2/A) and Tilak Raj (PW-3) states that he took the Ruka alongwith the contraband substance and deposited the same with SHO Tenjing. 12. Shri Ajit Sankhian (PW-2) is the Proprietor of Sankhian Book Depot, who has also corroborated the version of Parkash Chand (PW-10). 13. SHO Tenjing Shashni (PW-6) has also testified that with the registration of FIR, on the basis of Ruka so received by him, case file was sent through HC Davinder (PW-8). Also, Tilak Raj deposited the case property with him, which he resealed with his seal impression ‘H’. Relevant entries in the NCB form (Ex. PW-6/B) were made. Specimen of the seal, so embossed by him, is Ex. PW-6/C, and the resealing certificate is Ex. PW-4/B. 14. Prosecution witnesses, and more particularly, Tilak Raj (PW-3), have clarified that the place where the accused was apprehended is isolated and secluded. No vehicular traffic passed, at the time when the contraband substance was recovered and seized. 15. It is a case of chance recovery and not of prior information. Only when the accused was not able to satisfactorily answer the queries of the police party, he was searched, which led to the recovery of the contraband substance. In this backdrop, contention with regard to non-association of independent witnesses only merits rejection. 16. We find that police had taken all precautions. Only when the accused was not able to satisfactorily answer the queries of the police party, he was searched, which led to the recovery of the contraband substance. In this backdrop, contention with regard to non-association of independent witnesses only merits rejection. 16. We find that police had taken all precautions. Even Special Report (Ex.PW-5/A) was sent to the superior Officer, which fact is evident from the testimony of ASI Shiv Ram and Constable Nazar Lal. 17. From the conjoint reading of testimonies of the aforesaid witnesses, we find their version to be clear, cogent, consistent, and there is nothing which would render their testimonies to be unbelievable. They are free from exaggerations, embellishments and major contradictions. Prosecution has been able to establish the factum of having carried out the search and seizure operations, in accordance with law, and recovered the contraband substance from the conscious possession of the accused. 18. Even on the question of link evidence, prosecution has been able to establish its case, beyond reasonable doubt. Both, SI Rattan Singh and HC Tilak Raj, have deposed that so long as the contraband substance remained in their possession, it was not tampered with. Recovery was effected on 22.2.2011 and contraband substance deposited with the SHO of the concerned Police Station the very next day. It took time for Tilak Raj to travel from Nirmand to Shimla. Upon receipt of the contraband substance, SHO Tenjing resealed the same and completed the necessary formalities. Certificate of re-sealing and impression of the seal stands proved on record. 19. Case property was entrusted to MHC HC Prakash Chand (PW-4), who made entries in the Malkhana Register (Ex. PW-4/C). Sealed parcel alongwith the road certificate (Ex.PW-4/D) was sent through HC Bhagirath (PW-9) for chemical analysis to the Forensic Science Laboratory, who deposited the same in the Laboratory at Junga. Even these witnesses, in their unrebutted testimony, have deposed that so long as the parcel remained with them it was not tampered with. Report of the Laboratory (Ex.PW- 6/D) categorically establishes the seized contraband substance to be psychotropic substance, i.e. Charas. 20. Mr. Ashwani Kaundal, learned counsel for the accused, has referred to the decision rendered by the Hon’ble Supreme Court of India in Mohinder Kumar v. State, Panaji, Goa, (1998) 8 SCC 655 , which we find not to be applicable in the given facts and circumstances. 20. Mr. Ashwani Kaundal, learned counsel for the accused, has referred to the decision rendered by the Hon’ble Supreme Court of India in Mohinder Kumar v. State, Panaji, Goa, (1998) 8 SCC 655 , which we find not to be applicable in the given facts and circumstances. The Court was dealing with a case where the house of the accused was searched, after sunset, and with a strong suspicion that the accused had kept psychotropic substance in his house. It is in this backdrop, the Court held the prosecution not to have complied with the provisions of Sections 42, 52 and 57 of the Act. 21. On the other hand, in Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 , the Hon’ble Supreme Court of India, has held that the initial burden of proof of the possession lies on the prosecution. Once it is discharged legal burden would shift on the accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt. However, what is required to prove innocence by the accused would be preponderance of probability. Once the plea of the accused is found probable, discharge of initial burden by the prosecution would not nail him with offence. Offences under the Act being more serious in nature, higher degree of proof is required to convict an accused. It needs no emphasis that the expression possession is not capable of precise and completely logical definition of universal application in context of all the statutes. Possession is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18/20 of the Act, once possession is established, the accused who claims that it was not a conscious possession has to establish it because it is within his special knowledge. Section 54 of the Act raises presumption from possession of illicit articles. 22. Act creates legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. 22. Act creates legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the accused has not been able to account for satisfactorily, the possession of Charas. Once possession is established, the Court can presume that the accused had culpable mental state and had committed the offence. 23. In somewhat similar facts, the Hon’ble Supreme Court of India, had the occasion to consider this question in Madan Lal and another vs. State of H.P., 2003 (7) SCC 465, wherein it has been held that 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. (Also: Dehal Singh v. State of Himachal Pradesh, (2010) 3 SCC (Cri) 1139). 24. In the present case, not only possession but conscious possession has been established, beyond reasonable doubt. It has not been shown by the accused that the possession was not conscious in the logical legal backdrop of Sections 35 and 54 of the Act. 25. It is a settled position of law that the prosecution has to prove its case beyond reasonable doubt and what is “beyond reasonable doubt”, it has been explained by the Hon’ble Supreme Court of India in Shivaji Sahabrao Bobade & another vs. State of Maharashtra, (1973) 2 SCC 793 has held that:- “6. Even at this stage we may remind ourselves of a necessary social perspectives in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary contest of escalating crime and escape. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary contest of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles of golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breaks down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author [ Glanville Williams in ‘Proof of Guilt’] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ‘persons’ and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent … …” In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the Courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these times long ago.” [Emphasis supplied] 26. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the Courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these times long ago.” [Emphasis supplied] 26. On the issue in hand, one would only refer to the near recent decision rendered by the Hon’ble Supreme Court of India in State of H.P. v. Sunil Kumar, (2014) 4 SCC 780 . 27. Significantly, in his statement, under the provisions of Section 313 of the Code of Criminal Procedure, accused does not state the name of the tailor master. He has not produced Jai Singh or any other local shop-keeper. He never protested his arrest at any point in time. 28. Now, Ramesh Chand (DW-1) claims himself to be running a tailoring shop at village Jaon. He does not state that the police arrested the accused in his presence. All that he states is that on 22.2.2011, at about 2 p.m., CID officials were talking to one Jai Singh. In the meanwhile, accused also crossed his shop and after half an hour, three officials visited him with a piece of cloth and asked him to stitch the same into a parcel, which he did. Thereafter, the police officials left towards Baghipul side. It was only lateron that he learnt that the police had arrested Sesh Ram (accused). Defence of the accused, by no stretch of imagination, can be said to have been probablized even by this witness. We do not find the testimony of this witness to be worthy of credence, for the reason that he admits to be running the shop from his residential house, and of his vocation there is no proof and also he is a close relative of the accused. He has not undergone any training in tailoring and claims to have learnt the same from his father, of which also there is no evidence. His version of the police having visited the shop for getting the parcel stitched also does not inspire confidence, for he does not name them. He admits that there is a Karyana shop of Chuni Lal nearby. Now, if the accused had been falsely arrested, this person being a close relative would have been the first one to have raised hue and cry. He admits that there is a Karyana shop of Chuni Lal nearby. Now, if the accused had been falsely arrested, this person being a close relative would have been the first one to have raised hue and cry. Also, he does not even remember the name of the lady Constable, who allegedly visited his shop. 29. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offence charged for. There is sufficient, convincing, cogent and reliable evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused stands proved beyond reasonable doubt, to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved. 30. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. 31. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed. Appeal stands disposed of, so also pending application(s), if any.