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TaxTMI 
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2017 (8) TMI 622
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....ing illegal possession and trafficking of Ganja, the Intelligence Officer, Directorate of Revenue Intelligence, Guwahati (herein after referred to as DRI) with the assistance of Guwahati Customs Division & Nagaon Police raided the house of one Md. Abdul Kadir Majumdar and recovered 301 packages of Manipuri Ganja wrapped in blue and black plastic sheets, weighing 5581.5 kgs. An electoral document was also seized from the house which stood in the name of the accused appellant. The said Ganja was seized in presence of witnesses. Inventory was also prepared. The sample, as prescribed, was sent to Forensic Science Laboratory, Guwahati for examination. The sample gave positive test for Ganja on examination by Forensic Science Laboratory. Then the case was forwarded to the Chief Judicial Magistrate, Nagaon. As the accused-appellant absconded during the raid of his house, summon was affixed on the wall of his house, and on his failure to respond to the summon, Non-Bailable Warrant of Arrest was issued against him. On 07-09-2003, the accused appellant was arrested, and during interrogation, he disclosed the name of co-accused Ajnoor Choudhury, Baharuddin and Rafique Choudhury, who were invo....
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....sed by the learned counsel for the accused appellant, for decision of the appeal. 12. I have gone through the records of the trial Court and also perused the impugned judgment. 13. In order to appreciate the submissions, let me first visit the law with respect to possession for the offences under the NDPS Act. 14. In Mohan Lal v. State of Rajasthan, reported in (2015) 6 SCC 222, the Hon'ble Supreme Court observed that when one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word "possession". The classical theory of the English law on the term "possession" is fundamentally dominated by Savignyian "corpus" and "animus" doctrine. Distinction has also been made in "possession in fact" and "possession in law" and sometimes between "corporeal possession" and "possession of right" which is called "incorporeal possession". Thus, there is a degree of flexib....
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....tion PW2 deposed that he does not know the names of female members of the neighbourhood, who had identified the house of the accused appellant. PW 2 also stated that the Search team had not taken the help of local Gaonburah to identify the residence. 20. The evidence of PW3, Uma Shankar Kashyap, PW4, Mohendra Dutta and PW5, Subir Das are in the line of the evidence tendered by PW2 that the seized cannabis was recovered from the house of convict appellant. The principal defence taken in cross examination is that house is not of the accused appellant and that his house was not searched and the contraband was not recovered from his house. 21. Now, it would be necessary to place on record the entire chronology of events which led to the conviction of the accused appellant. 22. The complaint petition states that acting on specific information raid was conducted at Nagayapam village. It may be mentioned here that team of Revenue Intelligence Officers had visited the house searched, coming directly from Guwahati. In this regard Section 41 (2) of the NDPS Act provides as follows; 41 (2) Any such officer of gazetted rank of the department of central excise, narcotics, customs, r....
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....traband need not be produced in court unless such a record has been called for at the instance of the accused. (Reference: T. Thomson v. State of Kerala, reported in (2002) 9 SCC 618). 24. It is thus clear from the legal proposition with respect to Section 41 (2) that on getting an information regarding presence of contraband in a particular place the officials mentioned in Section 41(2), if they have reasons to believe that the information is correct may straightaway proceed to the place and to arrest any person or search a building, conveyance or place whether by day or by night. 25. In the present case, the complaint petition specifically mentions that on getting specific information that one Abdul Kadir Mazumder is dealing in contraband, the team of Revenue Intelligence Officials raided his residence. Such an exercise is within the ambit of powers conferred by Section 41(2) of the NDPS Act and unless the defence calls for the records of information there is no statutory requirement that such records be produced in Court. 26. In the present case, the defence never questioned on the content of the information on the strength of which raid was conducted. No step was taken....
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....cused appellant does not arise. The learned Counsel for the accused appellant has relied upon the cases of Avtar Singh vs State of Punjab, reported in AIR 2002 SC 3343, Om Prakash @ Baba vs State of Rajasthan, reported in (2009) 10 SCC 632, and the case of Noor Aga vs State of Punjab reported in (2008) 16 SCC 417. 30. The case of Avtar Singh (supra), dealt with the issue of possession under the NDPS Act and when can an accused be said to be in possession of contrabands. In the case of Om Prakash @ Baba (supra), a large number of persons were occupants of the residence from where the contrabands were seized hence the Hon'ble Supreme Court held that in such situations it is the for the prosecution to prove that among the large number of occupants the accused was the exclusive possessor. On facts, none of these cases are applicable in the facts of the present case. So far as the question of theory of possession is concerned the same has been expressly dealt with hereinbefore while referring to the case of Mohan Lal (supra). 31. Now, from the trend of the cross examination of the prosecution witnesses as well as from the arguments made in this Court it is apparent that defence ne....
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....urisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused appellant to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused appellant must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason. 35. The circ....