2017 (10) TMI 666 - HC - Indian Laws

Appellant's NDPS Act conviction upheld for possessing Charas, conscious possession proven. Procedural claims dismissed. THC content not considered.

Irwin Bin Hassim Versus Anil Kumar, Air Customs Officer, IGI Airport

The court upheld the appellant's conviction under Sections 20(b)(ii)(C) and 28 read with Section 23(c) of the NDPS Act for possessing 7.090 kgs of Charas. ... Conviction for the offence under Section 20 (b)(ii)(C) & Section 28 read with Section 23(c) of NDPS Act - Held that:- The prosecution evidence is completely reliable and trustworthy. The aforementioned events clearly depict that the arguments advanced by the learned counsel for the appellant are without merits and on mere conjectures and surmises and hence are rejected. On perusal of the statement of the witnesses who recovered and deposited the sample to the CRCL, it is clear that out of the recovered charas, three samples of 30 grams each were taken and placed in small polythene wrapped with tape and kept in three brown colour paper envelopes marked as ‘A-1’,’ A-2’ and ‘A-3’. The remaining substance was kept in a transparent polythene bag and then packed in a tin box which was converted into cloth pulanda and sealed with custom seal No.6. The sealed material including the suitcase were seized under NDPS Act, the documents of the appellant were also seized and his statement was recorded under Section 67 NDPS Act. The impugned judgment of the learned Special Judge, NDPS for convicting the appellant under Section 20 (b)(ii)(C) and Section 28 read with Section 23(c) of NDPS Act for ten years rigorous imprisonment together with a fine of Rs. two lakhs (cumulatively) cannot be interfered with. I find no merit in the appeal and the same is dismissed. Issues Involved:1. Legality of the appellant's possession of contraband.2. Compliance with procedural safeguards under the NDPS Act.3. Ownership and conscious possession of the suitcase containing contraband.4. Determination of the quantity of THC in the contraband for sentencing.Issue-wise Detailed Analysis:1. Legality of the appellant's possession of contraband:The appellant was convicted under Sections 20(b)(ii)(C) and 28 read with Section 23(c) of the NDPS Act for possessing 7.090 kgs of Charas (Hashish). The prosecution's case was that the appellant was intercepted at IGI Airport with a suitcase containing Charas. The suitcase was found to contain black fiber sheets with adhesive material, which were tested and confirmed to be Hashish using a Field Drug Test Kit. The appellant's statement under Section 67 of the NDPS Act admitted to prior involvement in drug trafficking.2. Compliance with procedural safeguards under the NDPS Act:The appellant argued that the procedure under Section 50 of the NDPS Act was not complied with. However, the court found that the appellant was informed of his right to be searched in the presence of a Magistrate or a Gazetted Officer, which he waived. The search was conducted in the presence of independent witnesses, and proper documentation, including notices under Section 102 of the Customs Act and Section 50 of the NDPS Act, was served and acknowledged by the appellant.3. Ownership and conscious possession of the suitcase containing contraband:The appellant contended that the suitcase did not belong to him and could have been inadvertently exchanged. The court held that possession under the NDPS Act implies conscious possession, which was established by the prosecution. The appellant's confession and the consistent testimonies of the witnesses (PW-1, PW-2, PW-3, and PW-8) corroborated the recovery of the contraband from the appellant. The court cited legal precedents to emphasize that once possession is established, the burden shifts to the accused to prove lack of conscious possession.4. Determination of the quantity of THC in the contraband for sentencing:The appellant argued that the quantity of THC, the active ingredient in Charas, should be considered to determine whether the quantity is 'commercial' or 'semi-commercial.' The court referred to the CRCL report, which confirmed the presence of Charas with a THC content of 9.3%. The court relied on legal precedents, including E. Michael Raj v. Intelligence Officer, Narcotics Control Bureau and State through Intelligence Officer, Narcotics Control Bureau v. Mushtaq Ahmad, to conclude that the entire quantity of the contraband, irrespective of the THC percentage, should be considered for sentencing. The court rejected the appellant's contention and upheld the conviction based on the gross weight of the contraband.Conclusion:The court found the prosecution's evidence reliable and trustworthy, dismissing the appellant's arguments as meritless and based on conjectures. The appellant's conviction and sentence of ten years rigorous imprisonment with a fine of Rs. 2,00,000 were upheld. The appeal was dismissed, and the trial court's judgment was affirmed.