JUDGMENT : DEVASHIS BARUAH, J. 1. Heard Ms. Khriekethono, learned counsel for the appellant and Mr. K.K. Wotsa, learned P.P. appearing on behalf of the State. 2. This is an Appeal filed under the provisions of Section 374(2) of the Criminal Procedure Code, 1973 (In Short, The Code), challenging the Judgment dated 18.06.2020, passed by the Special Judge, Phek, Nagaland in Sessions (Special) Case No. 05/19 arising out of GR No. 36/18 of Pfutsero P.S. Case No. 15/18, whereby the appellant was convicted under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (In short the Act) and sentenced for a term of 14 (fourteen) years Rigorous Imprisonment and a fine of Rs. 2 Lakhs/- and in default of payment of the fine he was further directed to undergo two years Rigorous Imprisonment. 3. The question that arises for consideration is whether the Court below was justified in applying Section 35 of the said Act to the facts of the case; whether the appellant herein, upon application of Section 35 was able to discharge the reverse burden imposed upon him under the said provision. 4. The facts of the instant case are that on 27.11.2018 at around 23:00 hrs, police personnel of Pfutsero Police Station including Constable, Mr. Zolo Thele (PW-1), Inspector Mr. Ginlunglal Tungnung (PW-2) and Assistant Sub-Inspector Mr. Selu Koza (PW-3), under the command of the Sub-Divisional Police Officer, Ms. Aotula, were on the Motor Vehicle Check Post (MVCP), duty at PWD road Junction, Pfutsero when they intercepted a vehicle being Tata Mobile bearing Registration No. NL-07A-0408, coming from the town area. The vehicle was driven by the appellant (Mr. Weshe Ritse). He was alone in the vehicle. During the search, the vehicle was found loaded with Ganja. The appellant was, therefore, taken into custody by the Police personnel and brought to the Police Station, Pfutsero, along with the vehicle. At the Police Station, Mr. Zolo Thele lodged a suo moto First Information Report (Exhibit P-1) against the appellant which was registered by Mr. Ginlunglal Tungnung (PW-2), who in turn authorized Mr. Selo Koza (PW-3) to investigate the incident. Mr. Selo Koza, arrested Mr. Weshe Ritse, the appellant, and seized the contraband upon weighing as well as the vehicle; wherein, the total quantity of the contraband was found to be 435 (Four Hundred and Thirty Five) Kilograms. Ginlunglal Tungnung (PW-2), who in turn authorized Mr. Selo Koza (PW-3) to investigate the incident. Mr. Selo Koza, arrested Mr. Weshe Ritse, the appellant, and seized the contraband upon weighing as well as the vehicle; wherein, the total quantity of the contraband was found to be 435 (Four Hundred and Thirty Five) Kilograms. The Investigating Officer prepared samples of the contraband in the presence of the Magistrate and the samples of the same were sent to the Forensic Science Laboratory in Dimapur for an expert opinion. In the course of investigation, the appellant disclosed that he was a member of the Naga Socialist Council of Nagalim (Isaac Muivah) [In short, NSCN (IM)] and on receiving information about an illegal transportation of Ganja at Kapamodzu Zhavame Camp, the appellant was asked by his superior to seize the contraband and the vehicle. On the basis of such directions issued by his superior, the appellant rushed to the sport and seized the vehicle along with the contraband after chasing it. The appellant further, during his interrogation disclosed that the contraband belonged to one Mr. Solomon Ladu, and while he took charge of the seized vehicle and proceeding he was caught by the Police personnel at the Check Post. 5. On the basis of the disclosure being made by the appellant during his interrogation, the Investigating Officer arrested one Mr. Solomon, who allegedly stated that he had arranged the contraband on request of one Mrs. Dilhou Krome for Rs. 1,50,000/- (One Lakh Fifth Thousand Only) from her friend one Rhunu alias Rhinu residing at Phaibung Village, Manipur. The Investigating Officer also arrested Mrs. Dilhou Krome based on the Call Detail Report (CDC) between the said Mrs. Dilhou Krome and Mr. Solomon. On the basis of the same, the Investigating Officer, after completing his investigation, filed a Charge-Sheet (Exhibit P-3) against the three accused persons namely- the appellant (Mr. Weshe Ritse), Mr. Solomon Ladu and Mrs. Dilhou Krome. In the meantime, the FSL Report (Exhibit P-2) of the seized samples was received from the Forensic Science Laboratory which confirmed that the contraband was Ganja. 6. On 18.08.2019, on the date of framing charge, all the accused persons pleaded not guilty and the Court below framed a charge under Section 20(b)(ii)(C) of The Act against the appellant and Mrs. In the meantime, the FSL Report (Exhibit P-2) of the seized samples was received from the Forensic Science Laboratory which confirmed that the contraband was Ganja. 6. On 18.08.2019, on the date of framing charge, all the accused persons pleaded not guilty and the Court below framed a charge under Section 20(b)(ii)(C) of The Act against the appellant and Mrs. Dilhou Krome and charge under Section 109 of IPC read with Section 20(b)(ii)(c) of The Act against the said Mr. Solomon. The prosecution examined four witnesses. They were: (i) Mr. Zolo Thele - the complainant - PW-1 (ii) Mr. Ginlunglal Tungnung - Officer In-Charge of Pfutsero Police Station at the time when the case was registered - PW-2 (iii) Mr. Selu Koza - Investigating Officer - PW-3 (iv) Mr. Avil Neikha - Assistant Director, Forensic Science Laboratory, Dimapur - PW-4 None of the three accused persons examined any witness in their defense. While in the examination under Section 313 of The Code, the said Mr. Solomon Ladu and Mrs. Dilhou Krome completely denied any relation with the transportation and seizure of the Ganja with the vehicle. However, the appellant, during his examination under Section 313 of The Code reiterated that he is a member of the NSCN (IM) and on Orders of his superior had stopped the transportation of the Ganja by intercepting the Tata Mobile near Pfutsero College, but he was arrested by the Police personnel at the PWD Junction road’s Check- Post. He further stated that he was not carrying Ganja in the vehicle for any unlawful purpose and that the Ganja and the vehicle actually belonged to Mr. Solomon Ladu and Mrs. Dilhou Krome, and not him. 7. The Court below after hearing the arguments framed four questions for determination. They were: (i) Whether the seized contraband Ganja weighed 435 Kilograms amounting to commercial quantity? (ii) Whether Weshe Ritse was found in unlawful possession of seized contraband Ganja? (iii) Whether the seized contraband Ganja was purchased by Dilhou Krome and it was being transported for her? (iv) Whether Solomon abetted Weshe Ritse and Dilhou Krome for committing the crime? 8. While deciding the first question, the Court below held that the weight of the seized contraband Ganja was 435 Kilograms which is a commercial quantity. (iii) Whether the seized contraband Ganja was purchased by Dilhou Krome and it was being transported for her? (iv) Whether Solomon abetted Weshe Ritse and Dilhou Krome for committing the crime? 8. While deciding the first question, the Court below held that the weight of the seized contraband Ganja was 435 Kilograms which is a commercial quantity. As regards the second question as to whether the appellant was found in unlawful possession of the seized contraband Ganja, the Court below applied Section 35 of The Act and as there was a failure on the part of the appellant to rebut the requirement of a culpable mental state, held that the appellant was guilty being in unlawful possession of 435 Kilograms of Ganja, which is a commercial quantity and convicted him under Section 20(b)(ii)(C) of The Act. As regards the third and fourth question, the Court below held that the evidence against Mrs. Dilhou Krome and Mr. Solomon Ladu, was not there to convict them for the commission of offense. Accordingly, both Mrs. Dilhou Krome and Mr. Solomon Ladu were acquitted of the charges against them. On the basis of the said decision on the questions framed, the Court below convicted the appellant under Section 20(b)(ii)(C) of The Act and sentenced him for a term of 14 (fourteen) years Rigorous Imprisonment and a fine of Rs. 2 Lakhs/- and directed that in default of payment of the fine, he shall further undergo two years of Rigorous Imprisonment. 9. The question, therefore, which arises as already mentioned herein above, is as to whether the Court below was justified in applying Section 35 of The Act to the facts of the instant case. At this stage it may be relevant to take into consideration two Sections of The Act: one is Section 35 and the other is Section 54. Both the Sections for the sake of convenience is quoted herein-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. (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any 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.” From a plain reading of the aforesaid Sections it would be evident that it creates a legal fiction and presumes that a person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. The expression possession is not capable of a precise and a complete logical definition of universal application in the context of all the statutes. The word “possession” is a polymorphous word and cannot be uniformly applied as it assumes different colour in different contexts. “Possession” for the purpose of the instant Act is a mental state and Section 35 of The Act gives a statutory recognition to the culpable mental state. It includes knowledge of fact. Possession, therefore, has to be understood in the context thereof, and 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 in as much as once possession is established, the Court can presume that an accused had culpable mental state and have committed the offense. At this stage it may be relevant to refer to the judgment of the Supreme Court in the case of Madan Lal vs. State of H.P. (2003) 7 SCC 465 and more particularly, paragraph No. 26 and 27 which is quoted herein-below: “26. 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. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.” In the same judgment, the Supreme Court also observed in paragraph 20 that Section 20(b) of The Act makes possession of the contraband articles an offence and Section 20 appears in Chapter IV of The Act which relates to offences and penalties for possession of such articles. Undoubtedly, in order to bring home the charge of illicit possession, there must be a conscious possession. The expression ‘conscious’ means awareness about a particular fact; it is a state of mind which is deliberate or intended. It is no longer res integra that possession in a given case need not be (actual) physical possession but can be constructive that is having control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control. This aspect of the matter is further made clear by the Supreme Court in its judgment rendered in the case of Gian Chand and Others vs. State of Haryana, (2013) 14 SCC 420 and the relevant paragraphs of the said judgment are paragraphs 19, 20 and 21 which is quoted herein-below: “19. From the conjoint reading of the provisions of Sections 35 and 54 of the Act, it becomes clear that if the accused is found to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. From the conjoint reading of the provisions of Sections 35 and 54 of the Act, it becomes clear that if the accused is found to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise. 20. Thus, in view of the above, it is a settled legal proposition that once possession of the contraband articles is established, the burden shifts on the accused to establish that he had no knowledge of the same. 21. Additionally, it can also be held that once the possession of the contraband material with the accused is established, the accused has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872 (hereinafter referred to as ‘the 1872 Act’).” Thus, it would be seen that once the accused is found to be in possession of the contraband article he is presumed to have committed the offence under relevant provisions of The Act until the accused proved otherwise. 10. At this stage, it is also relevant to take note of the Judgment of the Supreme Court in the case of Noor Aga vs. State of Punjab, (2008) 16 SCC 417 wherein the constitutional validity of Section 35 and 54 of The Act, in so far as it imposes a reverse burden upon the accused was put to challenge. While upholding the constitutional validity of Section 35 and 54 of The Act, the Supreme Court, at paragraph No. 58 observed as follows: “58. Section 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. 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.” A perusal of the said paragraph would show that the presumption as mandated under Section 35 and 54 would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. Initially, the burden exists upon the prosecution and when it stands satisfied, the legal burden would shift and even then the standard of proof required for the accused to prove his innocence is not as high as of the prosecution in as much as the standard of proof required for proving the guilt of the accused on prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. It was also held that if the prosecution fails to prove the foundational facts so as to attract the rigors of Section 35 of The Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. Thus, it would be seen from the law laid down by the Supreme Court in the various Judgments that the initial burden to prove that the accused had the knowledge that the vehicle in which he was caught was transporting narcotics still lay on the prosecution as would be clear from the word “knowingly” and it would only be after the evidence proved beyond reasonable doubt that the accused had the knowledge would the presumption under Section 35 of the Act can be made applicable. Section 35 also presupposes that the culpable mental state of the accused is to be proved as a fact beyond reasonable doubt and not merely when its existence is established by a preponderance of probabilities. Section 35 also presupposes that the culpable mental state of the accused is to be proved as a fact beyond reasonable doubt and not merely when its existence is established by a preponderance of probabilities. In the backdrop of the above, let us take into consideration the facts of the instant case and the evidence adduced by the prosecution to discharge the initial burden which rests upon the prosecution. The PW-1 who was the Police Constable stationed at Pfutsero Police Station had stated that the appellant came driving in a Tata Mobile and he was stopped and when the said PW-1 and others stopped the vehicle and on checking the vehicle, the appellant was found carrying contraband Ganja amounting to 435 Kilograms and the appellant was alone in the vehicle. During his cross-examination, nothing much could be derived to dislodge his evidence. The PW-2 was the Officer In-Charge of Pfutsero Police Station at that relevant point of time, who registered the F.I.R. and he had also said that the seized contraband was weighed at Police Station, Pfutsero. He further stated on his cross-examination that he was part of the MVCP party and upon re-examination stated that he had registered the case against the appellant basing on his possession of the contraband Ganja. The PW-3, who was the Investigating Officer had stated on 27.11.2018, a MVCP was conducted at PWD road Junction, wherein he was a part of the team led by SDPO, Pfutsero. He further stated that at 11:00 p.m. within three to four minutes when he along with others were stationed there at the spot, one Tata Mobile driven by the accused/appellant came and they stopped the vehicle for checking. When they opened the tarpaulin, they spotted contraband Ganja in packets which were seized and the appellant was arrested and produced to the Police Station at midnight. He further stated that on questioning the accused/appellant, he admitted that he was carrying the contraband Ganja for one person by the name of Mr. Solomon. The said Mr. Solomon, upon being summoned, admitted that he contacted one known person from Thaibun for one Dilhou who handed an amount of Rs. 1,50,000/- (One Lakh Fifty Thousand only) to Mr. Solomon for the purchase of the contraband Ganja. Solomon. The said Mr. Solomon, upon being summoned, admitted that he contacted one known person from Thaibun for one Dilhou who handed an amount of Rs. 1,50,000/- (One Lakh Fifty Thousand only) to Mr. Solomon for the purchase of the contraband Ganja. He further stated that on registering the case, the illegal contraband Ganja was weighed which came up to 435 kilograms and it was weighed in the presence of the SDPO, OC and other Jawans. Following that, samples were drawn and sent for expert opinion The Investigating Officer thereupon exhibited Exhibit P-3, which is the Charge-Sheet he had submitted, Exhibit P-5 which is the Seizure Memo and Exhibit P-3(a) and Ehibit:5(a) which were his signatures. During his cross-examination he admitted that he had produced sample of the contraband Ganja before the Magistrate/ADC, Pfutsero in the presence of the appellant right after the seizure and that they produced before the Magistrate/ADC, Pfutsero the following day. He admitted that that there was 435 Kilograms which was weighed by him in the presence of the Police personnels. The consignment exhibit shown in the Court is marked as MR 20/19 of GR 36/18. The PW-4 was one Mr. Avil Neikha, who was working as Assistant Director, Forensic Science Laboratory, Dimapur. He stated that on 13.12.2018, he received three exhibits from the Superintendent of Police, Phek, containing some plain materials and he conducted the Colour Test and Thin Layer Chromatography and he found the materials as positive cannabis Ganja. He further stated that the method followed was as per the directive of the United Nations Drugs Control Program. Exhibit P-2 was the result of the FSL report and Exhibit P-2(a) was his signature. During his cross-examination, he admitted that the Exhibit was marked as Annexure-A(i), Annexure-B(ii) and Annexure-C(iii) which came to him in sealed form with the signature of the accused, the witnesses and the Magistrate’s signature and it refers to Pfutsero Police Case No. 15/18. He also admitted that while examining the samples the required quantity to clearly conclude the test is not less than 23 grams. Exhibit P-2 is the report given by PW-4, wherein, it has been mentioned that the Exhibit marked as C-888/2018 on tests were found to be cannabis Ganja. He also admitted that while examining the samples the required quantity to clearly conclude the test is not less than 23 grams. Exhibit P-2 is the report given by PW-4, wherein, it has been mentioned that the Exhibit marked as C-888/2018 on tests were found to be cannabis Ganja. The above evidence would show that the appellant was caught in a Tata Mobile which was loaded with 435 Kilograms of Ganja and the said Tata Mobile car was driven by the appellant. So it is clear from Exhibit P2 that the contraband article from was Ganja. The said sample was taken in the presence of the Magistrate, witnesses and also the accused. On the basis of the said evidence, this Court, therefore, concludes that beyond reasonable doubt, the prosecution has established that the appellant was in possession of the contraband articles, i.e. Ganja. Now, let this Court take into consideration, in view of Section 35 and 54, as to whether the appellant had discharged the reverse burden imposed upon him by virtue of the said Sections. The appellant did not give any evidence, however, on his examination under Section 313 of The Code, he stated as follows: “Question 1: On 27.10.2018, at about 11 pm it is alleged that you were carrying 435 Kgs. of Ganja in a Tata Mobile and was arrested at P.W.D. Junction, Pfutsero during MVCP? Answer: Yes, I was carrying Ganja in a Tata Mobile but I do not know the quantity. It was on a tip of that I was ordered by one senior LEACY that one Tata Mobile carrying Ganja below Pfro. College was found to be carrying Ganja and therefore, we went to seized the vehicle carrying Ganja and on seizing it we were supposed to sent to the high level for case. I am working with the NSCN-IM Govt. however, while driving the Tata Mobile loaded with Ganja towards PWD junction the police intercepted and I was arrested along with the Ganja in the Tata Mobile. Question 2: What do you have to say in your defence? Answer: The Ganja which I was carrying does not belong to me but because the nation Govt. has sent me that’s why I was on duty and it was not for any other purpose to commit illegality as the Ganja does not belong to me. Question 2: What do you have to say in your defence? Answer: The Ganja which I was carrying does not belong to me but because the nation Govt. has sent me that’s why I was on duty and it was not for any other purpose to commit illegality as the Ganja does not belong to me. It was only to prevent illegal business like Ganja that I was working for. Even State Govt. has banned alcohol, drugs and Ganja business. Therefore, such illegal business are not to be encouraged. Now that the owner of the Ganja Solomon and the owner of the vehicle, Dilhou being responsible for this Contraband Ganja I would like to state that I am innocent in the present case.” From the said examination under Section 313 nothing has been stated by the appellant in his Section 313 statement which would be a valid defence in the eyes of law, nor examined anyone as a defense witness. As rightly observed by the Trial Court, once the appellant was asked by the Court that he was carrying 435 Kilograms of Ganja in a Tata Mobile and was arrested at the PWD road Junction, Pfutsero, during the MVCP, checking the aspect of conscious possession of the contraband is presumed and in absence of any contra evidence there is no reason to disbelieve the prosecution version. Further it is not the case of the appellant that the incriminating circumstances were not put to him under Section 313 of The Code. 11. In the light of the materials placed by the prosecution in the form of oral and documentary evidence and in view of Sections 35 and 54 of The Act and in the absence of any evidence from the accused/appellant discharging the presumption as to the possession of the contraband we are in the entire agreement with the conclusions arrived at by the Trial Court. 12. The learned counsel appearing on behalf of the appellant submits that in the facts of the instant case and taking into consideration that the appellant was the sole bread-earner of the family, the sentence should be reduced. Taking into account the facts of the instant case as well as the provisions of Section 20(b)(ii)(c), of The Act we are of the view that the ends of justice would be met the sentence is reduced to 10 years with a fine of Rs. Taking into account the facts of the instant case as well as the provisions of Section 20(b)(ii)(c), of The Act we are of the view that the ends of justice would be met the sentence is reduced to 10 years with a fine of Rs. 1 Lakh/- and in default of payment of the fine, the appellant would further undergo one year Rigorous Imprisonment. 13. Consequently, the appeal stand dismissed. However, as mentioned hereinabove, the sentence is reduced to 10 years Rigorous Imprisonment and fine of Rs. 1 Lakh/- and in default of payment of the fine the appellant shall further undergo One year Rigorous Imprisonment. Needless to mention that the period of detention that the appellant has already undergone and was in custody since the date of his arrest shall be set off. 14. The Registry is directed to return the LCR to the Court below.