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2018 DIGILAW 101 (CHH)

Gola Billa Nagraj v. State of Chhattisgarh

2018-02-13

SHARAD KUMAR GUPTA

body2018
JUDGMENT : SHARAD KUMAR GUPTA, J. 1. In this criminal appeal, challenge is levied to the judgment of conviction and order of sentence dated 30-7-2002 passed by the Special Judge, NDPS Act, Bastar at Jagdalpur in Special Case No. 2/2002 whereby and where-under he convicted the appellant under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in brevity ' NDPS Act- ) and sentenced him to undergo Rigorous Imprisonment for 10 years and to pay fine of Rs. 1,00,000/-, in default of payment of fine to undergo additional R1 tor 2 years. 2. This is admitted by the appellant that he was present on scooter bearing registration No. AP 16 N 505; the scooter met with an accident near Keshkal; and he got injuries and was examined by P.W. 3 Dr. S.C. Dubey. 3. In brief, prosecution story is that on 3-12-2001 P.W, 4 Rajesh Kumar Jha was posted as Station House Officer, Police Station, Keshkal. On that date, at about 17.00 hours he received an information from the informer that one person who was coming from Jaijaipur, Orissa to Raipur by Scooter bearing registration No. AP 16 N 505 carrying cannabis (Ganja) had met with an accident near forest depot, at village Borgaon, one white bag kept in the dicky and one red bag kept in the back side of the scooter contain cannabis. P.W. 4 Rajesh Kumar Jha immediately recorded the said information in writing in Rojnamcha Sanha No. 93 vide Ex. P-16(C). The said information was also recorded on the same day at the same time vide Ex. P-2. The written information was sent to the S.D.O. Police Kondagaon by Wireless message vide Ex. P-1 Looking to the fact that there may be delay in arriving the S.D.O. Police, Kondagaon, P.W. 4 Rajesh Kumar Jha proceeded to the place of occurrence. He prepared action panchnama Ex P-3. After reaching there, he found that the appellant was present there. He gave notice to the appellant under Section 50 of the NDPS Act vide Ex. P-4. P.W. 4 Rajesh Kumar Jha, his staff and witnesses gave their search to the appellant vide Ex. P-6. The white bag and the red bag were searched by P.W. 4 Rajesh Kumar Jha vide Ex. P-7 and found cannabis in them. Identification panchnama of contraband was prepared vide Ex. P-8. Physical verification of the scale was done vide Ex. P-9. P.W. 4 Rajesh Kumar Jha, his staff and witnesses gave their search to the appellant vide Ex. P-6. The white bag and the red bag were searched by P.W. 4 Rajesh Kumar Jha vide Ex. P-7 and found cannabis in them. Identification panchnama of contraband was prepared vide Ex. P-8. Physical verification of the scale was done vide Ex. P-9. P.W. 2 Gopal weighed the entire cannabis after verification vide Ex. P-10, and on weighment, it was found to be 22 kg and 700 gm. P.W. 4 Rajosh Kumar Jha drew two samples of 25 gm each from the recovered contraband vide Ex. P-11. Two packets of sample and remaining cannabis in two separate bags were sealed. Specimen seal panchnama Ex. P-12 was prepared. Two sealed bags, two sealed samples, one scooter have been seized vide Ex. P-13. P.W. 4 Rajesh Kumar Jha arrested the appellant. He sent the information of arrest to the appellants wife through wireless vide Ex. P-20. The appellant was sent to hospital for treatment. P.W. 4 Rajesh Kumar Jha prepared the spot map vide Annexure Ex. P-21. He returned back along with the seized articles to P.S. Keshkal. He handed over the seized article to the In-charge of the Malkhana for safe custody. He lodged the FIR vide Ex. P-23. He sent the detailed report to the S.D.O. Police, Kondagaon vide Ex. P-24. On 6-12-2001, he sent two samples to R.F.S.L. Raipur vide Ex. P-26. As per report of the; R.F.S.L Raipur vide Ex. P-28, samples were found to be of cannabis. 4. Further prosecution story is that after completion of investigation, a charge sheet was filed under Section 20(b) of the NDPS Act against the appellant in the Special Court, Jagdalpur. The trial Court framed charge under Section 20(b)(i) of the NDPS Act. The appellant abjured the charge levelled against him and faced trial. To bring home the charge the prosecution examined as many as 5 witnesses. 5. Case of the appellant is that at the time of the alleged incident he was servant of one G. Satyababu Naidu who was the owner of the aforesaid scooter. He was sitting on back side. He had no idea about the seized cannabis. He had not examined any witness in his defence. 6. After conclusion of the trial, the trial Court convicted and sentenced the appellant as aforesaid. He was sitting on back side. He had no idea about the seized cannabis. He had not examined any witness in his defence. 6. After conclusion of the trial, the trial Court convicted and sentenced the appellant as aforesaid. Being aggrieved by the judgment of conviction and order of sentence, the appellant has preferred-this criminal appeal. 7. Mr. Akhil Agrawal, counsel for the appellant strenuously argued that the provisions of Sections 42 and 50 of the NDPS Act have not been complied with; independent witnesses have not supported the prosecution case; and the alleged contraband was not in the exclusive possession of the appellant, thus, the judgment of conviction and order of sentence of the appellant are bad in law and deserve to be set aside. Thus, the appellant may be acquitted from the charge punishable under Section 20(b)(ii)-(C) of the NDPS Act. 8. Per contra, Ms. M. Asha, Panel Lawyer appearing for the State argued that the prosecution has succeeded to prove the charge against the appellant on sufficient evidence adduced by the prosecution. Thus, the impugned judgment does not call for any interference and this appeal may be dismissed. 9. Point for consideration :- There are following points for determination in the case in hand;- (1) Whether on 3-12-2001 near forest depot at village Borgaon, 22.700 kg cannabis were seized from the appellant ? (2) Whether the appellant was in conscious possession of said seized cannabis ? Point for determination No. 1. finding with reasons :- 10. P.W. 4 Rajesh Kumar Jha says in para Nos. 2, 7, 9, 10, 11, 12, 13, 14, 15, 19, 20, 23 of his statement given on oath that after receiving the information from the informer on 3-12-2001, he reached along with staff and witnesses near the forest depot, Borgaon, Keshkal. The staff, the witnesses and he gave search to the accused. He had taken the search of one white bag and one red bag and found contraband which was identified by the witnesses as cannabis. Weighing scale and weight were verified, recovered cannabis was weighed and found 22 kg and 700 gm, two samples of 25 gm each were taken. The staff, the witnesses and he gave search to the accused. He had taken the search of one white bag and one red bag and found contraband which was identified by the witnesses as cannabis. Weighing scale and weight were verified, recovered cannabis was weighed and found 22 kg and 700 gm, two samples of 25 gm each were taken. Samples, remaining cannabis were sealed, specimen of seal panchnama was also prepared, two samples and remaining 22 kg and 650 gm cannabis and a scooter were seized, he returned back along with the seized articles and handed over them to the Malkhana Moharrir for safe custody on 6-12-2001. He sent two samples for analysis to the R.F.S.L. Raipur through the Superintendent of Police, concerned. 11. P.W. 1 Vipin Agnihotri says in paras 1, 2 and 3 of his statement on oath that the appellant came to his field and asked him to leave her to the place of accident, cannabis was scattered, cannabis was in two bags. 12. P.W. 2 Gopal says in para 2 of his statement on oath that the cannabis was weighed and found 22 kg and 700 gm, sample of cannabis in two packets each of 25 gm were drawn out of the weighed cannabis and sealed. 13. Now this Court will consider whether provisions of Section 42 (1) and (2) of the NDPS Act are mandatory or not. 14. The provisions of Section 42 (1) and (2) of the NDPS Act read as under:- '42. 13. Now this Court will consider whether provisions of Section 42 (1) and (2) of the NDPS Act are mandatory or not. 14. The provisions of Section 42 (1) and (2) of the NDPS Act read as under:- '42. Power of entry, search, seizure and arrest without warrant or authorization- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe lo be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, anest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.' 15. The Hon'ble Supreme Court in the matter of Kishan Chand v. State of Haryana ( (2013) 2 SCC 502 ) : ( AIR 2013 SC 357 ) has held that:- 'In Karnail Singh (2009) 8 SCC 539 it has been held by a Constitution Bench that if the information was received when the officer was not in police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Section 42(1)(a) to (d) of the NDPS Act and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. The compliance with the requirements of Section 42(1) and 42(2) of the NDPS Act in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.' 16. Looking to the above-mentioned judicial precedent laid down by the Hon'ble Supreme Court, this Court finds that the provisions of Section 42 (1) and (2) of the NDPS Act are mandatory in nature. But, in special circumstances, to record in writing such information and sending a copy thereof to the immediate official superior may be postponed for a reasonable period and after the search and seizure it may be complied with. 17. Now this Court will consider as to whether the provisions of Section 43 of the NDPS Act are Applicable in the case in hand, instead of provisions of Section 42 (1) and (2) of the NDPS Act. 18. 17. Now this Court will consider as to whether the provisions of Section 43 of the NDPS Act are Applicable in the case in hand, instead of provisions of Section 42 (1) and (2) of the NDPS Act. 18. It would be pertinent to refer the provisions of Section 43 of the NDPS Act which is reproduced below:- '43. Power of seizure and arrest in public places. Any officer of any of the departments mentioned in Section 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article who may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.- For the purposes of this section, the expression 'public place' includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.' 19. The Hon'ble Supreme Court in the matter of State of Haryana v. Jarnail Singh and others ( (2004) 5 SCC 188 ) : ( AIR 2004 SC 2491 ) has observed in para-9 that : '9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise.' 20. The Hon'ble Supreme Court in the matter of Mohanlal v. State of Rajasthan ( (2015) 6 SCC 222 ) : ( AIR 2015 SC 2098 ) has laid down the following judicial precedent:- 'Seizure has taken place beneath a bridge of public road accessible to public-As the place is a public place and Section 43 of the NDPS Act comes into play, question of non-compliance of Section 42(2) does not arise.' 21. As per prosecution case, alleged place of occurrence is near a forest depot at village Borgaon on Raipur-Jaitpur road. This fact has not been challenged by the appellant. Thus, this Court finds that the place of occurrence is a public place. Thus, looking to these facts and the above mentioned judicial precedents laid down by the Hon'ble Apex Court, this Court finds that in the case in hand, instead of the provisions of Section 42, provisions of Section 43 of the NDPS Act are applicable. Thus, this was not required by PW-4 Rajesh Kumar Jha to record the information in writing and his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching two bags between sunset and sunrise. 22. Now we consider as to whether provisions of Section 50(1) of the NDPS Act are mandatory not. 23. Hon'ble Supreme Court in the matter of Kishan Chand ( AIR 2013 SC 357 ) (supra) in para 20 observed as irider:- '20. 22. Now we consider as to whether provisions of Section 50(1) of the NDPS Act are mandatory not. 23. Hon'ble Supreme Court in the matter of Kishan Chand ( AIR 2013 SC 357 ) (supra) in para 20 observed as irider:- '20. While dealing with the requirement of complying with the provisions of Section 50 of the Act and keeping in mind its mandatory nature, a Bench of this Court held that there is need for exact compliance without any attribute to the element of prejudice where there is an admitted or apparent non-compliance The Court in State of Delhi v. Ram Avtar ( (2011) 12 SCC 207 : (2012) 1 SCC (Cri) 385) held as under: (SCC pp. 216-177, paras 26-27) (AIR p. SC 364) '26. The High Court while relying upon the judgment of this Court in Balder Singh (State of Punjab v. Baldev Singh (1999) 6 SCC 172 , rejecting the theory of substantial compliance, which had been suggested in Joseph Fernandez v. State of Goa (2000) 1 SCC 707 found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression ' duly-used in Section 50 of the Act connotes not ' substantial-but exact and definite compliance-. Vide Ext. PW 6-A, the appellant was informed that a gazetted officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside. 27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 the theory, of substantial compliance-would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper. perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The safeguard cannot be treated as a formality, but it must be construed in its proper. perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to ne denial of a fair trial.' 24. Looking to the above-mentioned judicial precedent, this Court finds that provisions of Section 50(1) of the NDPS Act are mandatory in nature. 25. Now we consider as to whether provisions of Section 50(1) of the NDPS Act are applicable or not in the case in hand. 26. The Hon'ble Supreme Court in the matter of Jarnail Singh and others ( AIR 2004 SC 2491 ) (supra) has held that :- 'A Constitution Bench of this Court in State of Punjab v. Baldev Singh (1999) 6 SCC 172 : (1999 AIR SCW 2494) exhaustively considered the various provisions of the NDPS Act. As regards application of Section 50 of the NDPS Act, the Court came to the following conclusion :- 'On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.' 27. The Hon'ble Supreme Court in the matter of Ajmer Singh v. State of Haryana ( (2010) 3 SCC 746 ) : AIR 2010 SC (Supp) 582) has held in para-16 as under :- '16. In State of H.R v. Pawan Kumar ( (2005) 4 SCC 350 this Court has stated: (SCC p. 360, para 11) (AIR p. 10 page SC 2270) '11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word ' person-occurring in Section 50 of the Act.' 28. The Hon'ble Supreme Court in the matter of Makhan Singh v. State of Haryana ((2016) 1 SCC (Cri) 96) : (2015 AIR SCW 3557) as laid down the following judicial precedent: 'Since the vehicle was searched and contraband was seized from vehicle, compliance with Section 50 of the NDPS Act was not required.' 29. In the case in hand, alleged search of two bags was conducted which were kept on the scooter. No question of search of the appellant is involved in this case. Looking to these circumstances and above-mentioned judicial precedents laid down by the Hon'ble Supreme Court, this Court finds that in the case in hand, Section 50(1) of the NDPS Act is not applicable. 30. P.W. 4 Rajesh Kumar Jha says in paras 16 and 21 that he had given the information to the appellants wife of his arrest. Looking to these circumstances and above-mentioned judicial precedents laid down by the Hon'ble Supreme Court, this Court finds that in the case in hand, Section 50(1) of the NDPS Act is not applicable. 30. P.W. 4 Rajesh Kumar Jha says in paras 16 and 21 that he had given the information to the appellants wife of his arrest. He had also given a report to S.D.O. Police, Kondagaon regarding arrest of the appellant, seizure and lodging the FIR. There is no such evidence on record on the strength of which it could be said that the aforesaid statements of P.W. 4 Rajesh Kumar Jha, Ex. P- 20 dated 3-12-2001, Ex. P-24 dated 3-12-2001 are not believable. Thus, this Court believes the statements of paras 16, 21 of P.W. 4 Rajesh Kumar Jha Ex. P-20 and Ex. P-24. Thus, this Court finds that the provision of Sections 51 and 57 of the NDPS Act have been complied with. 31. P.W. 4 Rajesh Kumar Jha says in paras 19 and 20 that he returned back along with scooter, seized remaining cannabis and sample packets and handed over them to the Malkhana Moharrir for the safe custody. 32. There is no such evidence, on record on the strength of which it could be said that the statements made in paras 19 and 20 of P.W. 4 Rajesh Kumar Jha copy of Rojnamcha Sanha Ex. P-22-C wherein it has been mentioned that the seized remaining cannabis, samples and scooter have been handed over to Malkhana Moharrir, Ex.P-23 wherein it has been mentioned that seized sealed remaining cannabis, two sealed samples, a scooter have been handed over to Malkhana Moharrir, are not believable in that reference. Thus, this Court believes on the statements of paras 19 and 20 of P.W. 4 Rajesh Kumar Jha, Ex. P-22-C, Ex.P-23 in that reference. Hence, this Court finds that the provisions of Section 55 of the NDPS Act has been complied with. 33. As per the Ex P-26, two sealed packets containing cannabis along with impression of seal have been sent to R.F.S.L. Raipur. As per Ex. P-28, the cannabis was found in the two sealed packets, Article 'A- and' B-. The seals in the packets were found intact. 34. There is no such evidence on record on the strength of which it could be said that Ex. P-26 and P-28 are not believable. As per Ex. P-28, the cannabis was found in the two sealed packets, Article 'A- and' B-. The seals in the packets were found intact. 34. There is no such evidence on record on the strength of which it could be said that Ex. P-26 and P-28 are not believable. Thus this Court believes on Ex. P-26 and P-28. 35. P.W. 3 Dr. S.C. Dubey says in para 3 during his cross-examination that he had examined the appellant at 3 p.m. 36. In the alleged MLC report Ex. P-15, in the bottom of the report which is now half-torn but time appears as 7:30 p.m. From copy of Rojnamcha Sanha Ex. P-22-C, Ex. P-23, Ex. P-24, it appears that after completing most of the formalities, the appellant was sent to the hospital for treatment. In these circumstances, this Court finds that the appellant does not get any help from the aforesaid statement of P.W. 3 Dr. S.C. Dubey. 37. In the matter of Ajmer Singh (AIR 2010 SC (Supp) 582) (supra), the Hon'ble Supreme Court has laid down following judicial precedent :- 'It is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places at all times. The obligation to take public witnesses is not absolute. If after making efforts which the Court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and charas was recovered from the possession of the appellant for which he had no licence. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding.' 38. The Hon'ble Supreme Court in the matter of Kashmiri Lal v. State of Haryana ((2013) 3 SCC 595) : (AIR 2013 SC (Supp) 426) has held that if testimony of police officer is found to be reliable and trustworthy, Court can definitely act upon the same. 39. There is no such evidence on record on the strength of which it could be said that aforesaid statements of paras 2, 7, 9, 10, 11, 12, 13, 14, 15, 19, 20, 23 of P.W. 4 Rajesh Kumar Jha, Ex. P-6 Ex. P-7, Ex. P-8 and EY P-9, Ex. P-10, Ex. P-11, Ex. P-12, Ex. P-13, Ex P-23 are not normal, not natural, not simple. Moreover, the above-mentioned statements of P.W. 4 Rajesh Kumar Jha gets corroboration from the statements of P.W. 1 Vipin Agnihotri and PW. 2 Gopal. Looking to these circumstances and above-mentioned judicial precedents laid down by the Hon'ble Supreme Court, this Court believes on the aforesaid statements of P.W. 4 Rajesh Kumar Jha, Ex. P-6, Ex. P-7, Ex. P-8, Ex. P-9, Ex. P-10 Ex. P-11, Ex. P-12, Ex. P-13 and Ex. P-23. 40. After the appreciation of the evidence discussed herein-above, this Court finds that the prosecution has succeeded to prove beyond reasonable doubt that on 3-12-2001 near forest depot, Borgaon, 22.700 kg. cannabis was seized from the appellant. Thus, prosecution succeeded to prove point for determination No. 1 beyond reasonable doubt. Point for determination No. 2. Finding with reasons :- 41. It has been earlier decided that the prosecution has succeeded to prove point for determination No. 1 beyond reasonable doubt. 42. Sections 35 and 54 of the NDPS Act are relevant in the matter and are quoted below :- '35. Point for determination No. 2. Finding with reasons :- 41. It has been earlier decided that the prosecution has succeeded to prove point for determination No. 1 beyond reasonable doubt. 42. Sections 35 and 54 of the NDPS Act are relevant in the matter and are quoted below :- '35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this 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 with respect to the act charged as an offence in that prosecution. Explanation.-In this section 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 54. Presumption from possession of illicit articles.-In trials under this Act it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of- (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or a residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.' 43. The Hon'ble Supreme Court in the matter of Noor Aga v. State of Punjab and another ( 2008 (16) SCC 417 ) : (AIR 2009 SC (Supp) 852) has observed as under :- '58. The Hon'ble Supreme Court in the matter of Noor Aga v. State of Punjab and another ( 2008 (16) SCC 417 ) : (AIR 2009 SC (Supp) 852) has observed as under :- '58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is ' beyond all reasonable doubt' but it is ' preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.' 44. The Hon'ble Supreme Court in the matter of Mohinder v. State of Haryana ( (2014) 15 SCC 641 ) : (2013 AIR SCW 3620) has observed that once appellant was asked by Court that he was carrying a tin in his hand and opium was recovered therefrom, aspect of conscious possession of contraband is presumed and in absence of any contra evidence, there is no reason to disbelieve prosecution version. 45. The appellant has failed to prove that allegedly he has no knowledge about the cannabis which was kept in the two bags on the scooter. He has not given any reliable evidence that he was not aware of what was being carried in the bags. 45. The appellant has failed to prove that allegedly he has no knowledge about the cannabis which was kept in the two bags on the scooter. He has not given any reliable evidence that he was not aware of what was being carried in the bags. He failed to establish that he was not in the conscious possession of aforesaid cannabis. Thus looking to the above-mentioned circumstances and judicial precedents laid down by the Hon'ble Apex Court, this Court finds that the prosecution has succeeded to prove beyond reasonable doubt that the appellant was in conscious possession of aforesaid seized cannabis. Thus, this Court finds that the prosecution proved point for determination No. 2 beyond reasonable doubt Thus, presumption of culpable mental state, presumption from possession of illicit articles are applicable against the appellant. 46. From the face of the record it appears that in the charge, punishable Section is mentioned as 20(b)(i) of the NDPS Act. Instead of Section 20(b)(i) it ought to have been Section 20(b)(ii) (C) of the NDPS Act. 47. There is following provisions under section 464 of the Cr.P.C., 1973 :- '464. Effect of omission to frame, or absence of, or error in, charge- (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may (a) if the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.' 48. The Hon'ble Supreme Court in the matter of Professor S. Ganesan v. Rama Raghuraman ( 2011 (2) SCC 83 ) : (AIR 2011 SC (Cri) 419) has observed that unless parties satisfy the Court that there has been a failure of justice from non-framing of charge under a particular penal provision, and some prejudice has been caused to them, conviction under such provision of law is sustainable. 49. Looking to the above mentioned judicial precedent this Court is of the opinion that no failure of justice has been occasioned by non-mentioning of (ii)(C) with the aforesaid charge. 50. After the appreciation of the evidence discussed hereinabove, this Court finds that the trial Court has not committed any illegality in convicting and sentencing the appellant. Thus, the judgment of conviction and order of sentence passed by the trial Court dated 30-7-2002 is hereby affirmed. The appeal being devoid of merit is dismissed. 51. Report of the Superintendent, Central Jail, Jagdalpur Distt. Bastar dated 7-10-2017 shows that the appellant has been released on bail. From perusal of the order sheets dated 14-11-2003, it is found that the appellant was directed to be released on bail for his appearance before the Registry of this Court on 15-12-2003 with a further direction for his appearance before the trial Court on further dates given. Office note dated 15-12-2003 shows that the appellant did no appear before the Registry, thereafter there is nothing in the file regarding his appearance. 52. In aforesaid circumstances since the instant appeal has been dismissed, bail and bond of the appellant are cancelled. The appellant is directed to surrender before the trial Court forthwith, the authorities concerned are also directed to take the appellant in custody forthwith, for serving the remaining part of sentence.