TaxTMI 
TaxTMI 
2017 (10) TMI 979
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.... and have been sentenced to undergo the rigorous imprisonment of 10 years and a fine of Rs. 1 lacs with default imprisonment. The Trial Court has acquitted co-accused Bhupendra Dubey, but no appeal has been filed challenging the acquittal of Bhupendra Dubey. 3. The necessary facts for the disposal of the present appeals in short are that on 6-9-2001, a team of Central Narcotics Bureau, Gwalior under the leadership of Keval Singh Sub-Inspector, went to A.B. Road, and was carrying out routine checking of vehicles in front of Bobby Restaurant. At about 5:30 in the morning, one bus of Vivek Travels came from Indore to Gwalior. The said bus was stopped. Usman and Ram Krishna Shrivastava were the Driver and the Conductor. After giving them the introduction, Keval Singh along with other team members entered inside the bus. One person who was sitting on seat no.28 appeared to be suspicious. He disclosed his name Hansraj, son of Bhavanlal, resident of village Gangati, P.S. Cheepavadod, Distt. Bara (Rajasthan). Hansraj was brought to Bobby Restaurant, where he was apprised of his right under Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985. Hansraj opted for his search b....
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.... sealed. Thereafter, one room which was situated on the left side of the entrance gate, was opened and certain chemicals, scale and weight, empty bottles, plastic tub etc. which were used for preparing Heroine were seized. The coaccused Rajeev Verma was arrested, and his statement was recorded. In his statement, Rajeev Verma, disclosed that the appellant Aziz used to bring certain material for the preparation of Heroine. The investigating team came back to Gwalior and as per Section 57 of Narcotic Drugs and Psychotropic Substances Act, 1985, a report was sent. The seized samples were sent to Opium and Alchalide Factory, Neemuch. The appellant Rajeev Verma in his statement disclosed that he was preparing Heroine with the help of appellant Aziz. On 16-9- 2001, the house of Abdul Aziz was searched, however, nothing objectionable was found. Telephone bills were found and were seized. On 17-9-2011, the appellant Abdul Aziz appeared in the office of Commissioner, Central Narcotics Bureau on his jeep No. M.P. 16B 7675. The appellant Abdul Aziz made certain admissions and accordingly, he was also arrested and the jeep was seized. The call details of the appellant Abdul Aziz were checked an....
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....jeev Verma (D.W.4) and examined Sunder Singh (D.W.2), Sudhir Kumar (D.W.3). 9. The Trial Court by Judgment and sentence dated 27-10-2004 convicted the appellant Rajeev Verma for offence under Section 8/21 and 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 and convicted the appellant Abdul Aziz for offence under Section 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985. Sentence to the appellant Rajeev Verma was awarded for offence under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 only and both the appellants were awarded jail sentence of rigorous imprisonment of 10 years and a fine of Rs. 1 lac with default imprisonment. 10. Being aggrieved by the judgment and sentence passed by the Trial Court, the appellants have filed the present appeals. 11. It is submitted by the Counsel for the appellants that against the appellant Abdul Aziz, except the statement of the appellant Rajeev Verma, as well as appellant Abdul Aziz himself recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985, no other evidence is available on record. So far as the appellant Rajeev Verma is concerned, there is nothing on record t....
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....charge of a police station for the investigation of the offences under this Act. (2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise [or any other department] or any class of such officers with the powers of an officer-incharge of a police station for the investigation of offences under this Act.'' Thus, it is clear that the officers of Central Narcotics Bureau have been invested with the powers of an officer-in-charge of a police station for the investigation of offences under this Act. Section 25 of Evidence Act, 1872 reads as under :- ''25. Confession to police officer not to be proved.-No confession made to a police officer, shall be proved as against a person accused of any offence.'' 16. The Supreme Court in the case of Kanhaiyalal Vs Union of India, reported in (2008) 4 SCC 668 has held as under :- ''45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case [(2003)8 SCC 449] with which we agree, that an officer vested with the powers of an ....
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....nocuous and even praiseworthy have become offences, and the police power of the State gradually began to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes, etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime? If he does, he will be a police officer." 74. Section 25 of the Evidence Act was enacted in the words of Mehmood, J. in Queen Empress v. Babu Lal [ILR (1884) 6 All 509] to put a stop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confession during the trial of the accused persons. It was, therefore, enacted to subserve a high purpose. 75. The Act is a compl....
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....accepted. A confession purported to have been made before an authority would require a closer scrutiny. It is furthermore now well settled that the court must seek corroboration of the purported confession from independent sources." 25. In Noor Aga v. State of Punjab [(2008) 16 SCC 417] this Court held: (SCC p. 457, para 74) "74. Section 25 of the Evidence Act was enacted in the words of Mehmood, J. in Queen Empress v. Babu Lal [ILR (1884) 6 All 509] to put a stop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confession during the trial of the accused persons. It was, therefore, enacted to subserve a high purpose". 26. In any event if they were in custody of the police officers as also the Customs Officers, although they were not accused in strict sense of the term, any confession made by them would not be admissible in terms of Section 26 of the Evidence Act, 1872.'' 20. The Supreme Court in the case of Nirmal Singh Pehlwan Vs. Inspector, Customs reported in (2011) 12 SCC 298 has held as under :- ''We also see that the Division Bench in Kanhaiyalal case had not e....
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....ection 25 of Evidence Act. Even otherwise, the prosecution will also be required to establish beyond reasonable doubt that the confessional statement was made voluntarily. 23. The allegations against the appellant Abdul Aziz is the confessional statement of co-accused Rajeev Verma Ex.P.24, as well as of the appellant Abdul Aziz Ex.P.26 recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985. Nothing was seized from the possession of Abdul Aziz. There is not a single whisper in the evidence of Mahavir Singh (P.W.10) that the appellant Abdul Aziz had made the confessional statement voluntarily. Thus, in the considered opinion of this Court, there is no evidence against the appellant Abdul Aziz and hence, the prosecution has failed to prove the guilt of the appellant Abdul Aziz beyond reasonable doubt. 24. So far as the case of appellant Rajeev Verma is concerned, the allegations are that he was the Secretary of Khadi and Gramodyog and in an iron Almirah kept in the factory premises, 1 kg 450 gms of Heroine was seized. It is the submissions of the Counsel for the appellant Rajeev Verma, that as the contraband was not in the exclusive possession of Rajee....
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....ds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint." In the said Dictionary, the term "possess" in the context of narcotic drug laws means: "Term 'possess', under narcotic drug laws, means actual control, care and management of the drug. Collini v. State. Defendant 'possesses' controlled substance when defendant knows of substance's presence, substance is immediately accessible, and defendant exercises 'dominion or control' over substance. State v. Hornaday." And again: "Criminal law.-Possession as necessary for conviction of....
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....others from enjoying the land and anything which happens to be lying there; and Judges' concept of the social purpose of the particular rule relied upon by the plaintiff. 15. The learned author has further proceeded to state that quite naturally the policies behind different possessory rules will vary and it would justify the courts giving varying weight to different factors relevant to possession according to the particular rule in question. According to Harris, Judges have at the back of their mind a perfect pattern in which the possessor has complete, exclusive and unchallenged physical control over the subject; full knowledge of its existence; attributes and location, and a manifest intention to act as its owner and exclude all others from it. As a further statement he elucidates that courts realise that justice and expediency compel constant modification of the ideal pattern. The person claiming possessory rights over a thing may have a very limited degree of physical control over the object or he may have no intention in regard to an object of whose existence he is unaware of, though he exercises control over the same or he may have clear intention to exclude other p....
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....f possession is necessary and that is the reason for enacting Section 35 of the NDPS Act. * * * * * 22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the appellant-accused was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such the offence under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something....
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....ovides that "culpable mental state" includes intention, knowledge of a fact and believing or reason to believe a fact. Sub-section (2) of Section 35 provides that for the purpose of Section 35, 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 the probability. Once the possession of the contraband by the accused has been established, it is for the accused to discharge the onus of proof that he was not in conscious possession. Burden of proof cast on the accused under Section 35 of the NDPS Act can be discharged through different modes. One of such modes is that the accused can rely on the materials available in the prosecution case raising doubts about the prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. If the circumstances appearing in the prosecution case give reasonable assurance to the court that the accused could not have had the knowledge of the required intention, the burden cast on him under Section 35 of the NDPS Act would stand discharged even if the accused had not adduced any other evidence of hi....
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....s called upon to enter on his defence." 28. The Supreme Court in the case of Kulwinder Singh Vs. State of Punjab reported in (2015) 6 SCC 674 has held as under : ''16. The next ground of assail pertains to factum of conscious possession. The submission of the learned counsel for the appellants is that they were only moving in the truck and had no knowledge what the bags contained. As the evidence on record would show, two of the accused persons were sitting by the side of the driver and the rest of the accused persons were sitting on the body of the truck. 110 bags of poppy husk weighing 4180 kg were in the truck. At the instance of the police when the truck was stopped, had the appellantaccused no knowledge about the contents of the bags, they would not have run away from the spot. That apart, they absconded for few days from their village. They have not taken the plea that they were taking any lift in the truck and their presence in the truck has been proven by the prosecution. It is not a small bag lying in the corner of the truck that the appellant-accused can advance the plea that they were not aware of it. In the instant case, there were 110 bags of poppy ....
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.... and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the 'chattel' i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. 22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second cate....
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....mani, learned Senior Counsel for the appellant that the evidence of PW 2 Sub-Inspector of Police remained uncorroborated and, therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW 2 on that ground alone. Even otherwise, it cannot be said that the evidence of PW 2 remains uncorroborated because the fact that opium was recovered from his person and also Exhibit P-2 which is an endorsement containing the signature of the appellant could be treated as circumstances corroborating the testimony of PW 2.'' The Supreme Court in the case of Baldev Singh (supra) has held as under :- ''10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciat....
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....fficials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.'' (emphasis in original) Thus, the evidence of departmental witness cannot be discarded merely on the ground that the independent witnesses have not supported the prosecution case. 30. If the facts of the case in hand are considered, then the following circumstances would arise : (i) One Hansraj was arrested having been found in possession of 250 gms of Heroine. (ii) Hansraj made a confessional statement under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 informing that he was carrying the contraband for selling the same to the appellant Rajeev Verma, and on earlier occasions also, he had sold the Heroine to the appellant Rajeev Verma. (iii) The house of Rajeev Verma was searched, however, nothing was found. (iv) The Factory premises was searched and one iron Almirah was found on the right side of the entran....
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.... not support the prosecution case, so far as the search of the factory premises of the appellant Rajeev Verma and seizure of contraband is concerned. This witness was declared hostile. Nothing could be elicited from his cross examination, which may support the prosecution case. However, this witness has admitted his signatures on Ex. P.10, Ex. P.11, Ex. P.12, Ex. P.13 and Ex. P.14. The only explanation given by this witness is that he had signed the blank documents. However, this explanation cannot be accepted merely on the ground that he has not clarified as to why he had signed the blank documents. 35. Durgalal Sharma (P.W.5) is a constable and is a witness of arrest of co-accused Hansraj and seizure of 250 gms of Heroine from his possession, however, his evidence is not material to consider the allegations against the appellant Rajeev Verma. 36. Rajnish Sharma (P.W.6) is the member of the search team. He has stated that on 6-9-2001, at about 11:30 in the night, the team along with Hansraj left for Itawah. They reached Itawah at 7 in the morning. Two Panch witnesses were called by Mahavir Singh. Thereafter they reached the house of Rajeev Verma. He was told by the search te....
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....uggestion was given with regard to the resignation of the appellant from the post of Secretary, Arunodaya Khadi Gramodyog Sewa Sansthan. 37. Vijay Singh (P.W.7) is a witness of search in the house of Arjun Singh. Therefore, his evidence is not material for considering the case of the appellant Rajeev Verma. 38. Kewal Singh (P.W.8) has stated about the arrest of co-accused Hansraj, Seizure of contraband from Hansraj etc. This witness has stated that after completing his investigation, he had handed over the papers to Mahavir (P.W.10). As this witness is not the witness of any proceedings taken against the appellant Rajeev Verma, therefore, this witness is not material for considering the case against the appellant Rajeev Verma. 39. M.L. Prajapti (P.W.9) had taken the samples of seized contraband on 8-9-2001 along with Memo Ex. P.20 and the receipt of deposit of the same is Ex. P.21. 40. Mahavir Singh (P.W. 10) has stated that he was posted on the post of Inspector, Narcotics Department from 1998 to June, 2002. He was appointed as investigating officer by letter Ex. P.18 issued by Superintendent. On 6-9-2011, he had recorded the statements of the co-accused Hansraj, Ex. P....
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....was called in the Gwalior office of Central Narcotics Bureau, which is Ex. P.25. On 17- 9-2001, Abdul Aziz came to Gwalior and his statement was recorded in which he admitted that he had supplied chemical for the manufacturing Heroine. The statement is Ex. P.26 and he was arrested vide arrest memo Ex. P.27. Jeep on which Abdul Aziz had come was also seized as it was informed by the appellant Abdul Aziz that he had used that jeep. Thereafter, search was made for Bhupendra Dubey, but he could not be traced. It was also informed by the appellant Rajeev Verma, that Bhupendra Dubey had used a Maruti Car for supply of Heroine and accordingly, a maruti car was also seized from the possession of cousin brother of Bhupendra Dubey vide seizure memo Ex. P.29. In cross examination, this witness admitted that no material was seized which could have been used for manufacturing Heroine. The chemical which was seized was not sent for chemical examination. The said chemical is also used for other works also. This witness further clarified that he has jurisdiction on all places all over India. He had found a pass book on which the appellant Rajeev Verma was mentioned as patron but had not seized the....
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....im and when he came back, the police had already returned. Similarly, Sudhir Kumar (D.W.3) has stated that he was the President of the Arunodaya Khadi Gramodyog and the appellant Rajeev Verma had tendered his resignation from the post of Secretary on 11-7-2001 which was accepted. The list of Members of Managing Committee of the year 2000-2001 was filed as Ex. D.1, according to which the appellant Rajeev Verma was the Secretary. Ex. D.2 is the list of Members of Managing Committee of the next year. The list of Members of Managing Committee of the year 1999-2000 is Ex. D.3. The bye-laws of the Arunodaya Khadi Gramodyog are Ex. D.10. The resignation submitted by the appellant Rajeev Verma dated 11-7-2001 is Ex. D.11 and letter written by the appellant Rajeev Verma is Ex. D.12. The decision of the Managing Committee dated 11-7-2001 is Ex. D.14 and the handing over of the charge of the post of Secretary is Ex. D.15. According to the handing over of the charge by the appellant Rajeev Verma is concerned, according to Ex. D.14, the charge was given to one Rohit Verma, but for the reasons best known to the appellant Rajeev Verma, Rohit Verma was not examined as Defence witness. In cross exa....
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....nt including para-military 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 V-A 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 ope....
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....ecified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance with the said provision may not vitiate the trial if it does not cause any prejudice to the accused. 34. The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policymakers about it. Now for the last two decades police investigation has gone through a sea change. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. For this change of circumstances, it may not be possible all the time to record the information which is collected through mobile phone communication in the register/records kept for those purposes in the police station or the respective off....
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....nces Act, 1985 and the appellant Rajeev Verma, also could not point out as to how the non- compliance of Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985 has caused prejudice to him. 50. Thus, it is clear that the appellant Rajeev Verma was the Secretary of Arunodaya Khadi Gramodyog Sewa Sansthan and was the custodian of the Almirah. Neither he gave the keys of the Almirah to the search team nor told that who is in possession of the keys of Almirah. Silence on the part of the appellant Rajeev Verma at the time of search also indicates his guilty mind. He did not inform the search team about his resignation, nor informed the search team, that the keys are with the President. Thus, it is clear from the conduct of the appellant Rajeev Verma at the time of search, that he maintained complete silence, therefore, the defence taken by him at the Trial cannot be relied upon because if the appellant Rajeev Verma had already tendered his resignation, then there was no reason for him to remain silent. No question was put to Mahavir Singh (P.W.10) about the resignation of the appellant Rajeev Verma. Further, there is no question in the cross examination of Mahavir Singh (P....