TaxTMI 
TaxTMI 
2015 (11) TMI 1822
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.... offence punishable under Section 20 (b) (ii) C of the Act. Further they were sentenced to undergo rigorous imprisonment for a period of ten years and to pay the fine of Rs. 1,00,000/- and in default thereof, to undergo simple imprisonment for a period of six months for offence punishable under Section 29 read with Section 20 (b) (ii) C of the Act. Both the sentences were directed to run concurrently. The appellants were given the benefit of Section 428 Cr.P.C. Since common arguments have been advanced by learned counsel for the appellants appearing in these appeals, they are being recorded in common, and could be dealt with accordingly in this common judgment. 2. The brief facts as taken note of in the impugned judgment are that information was received by R.R. Kumar (PW-4), Superintendent, Narcotics Control Bureau (hereinafter referred as 'NCB') that two persons, namely, Chand Singh and Jasbir Singh involved in trafficking of hashish would come to collect charas from Narinder Singh Jhakhar, driver of funeral van HR-68-1558, near Hero Honda showroom, Peeragarhi, New Delhi on 31.12.2005 between 1800 to 1900 hours. The information was reduced in writing and forwarded to the Zonal....
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....y tendered their statements, admitting their role and their complicity in trafficking of Charas. They were arrested. Statement of panch witness was also recorded. The seizing officer and the arresting officer submitted their reports under Section 57 of the Act to the Superintendent. The case property was deposited in the malkhana. The samples along with the forwarding letter and test memo were sent to CRCL through Hawaldar Shiv Rattan Singh. As per report dated 18.04.2006 the samples were found to contain Tetrahydro Cannabinol with their purity i.e. A1 - 12.0%, B1 - 10.6%, C1 - 10.3%, D1 - 10.0%, E1 - 11.4%, F1 - 9.6%, and G1 - 11.6%. After investigation, complaint was filed against the accused persons under Sections 20, 23 and 29 of the Act. 5. The charge under Section 29 read with Section 20 (b) (ii) C of the Act was framed against the appellants. They pleaded "not guilty" and claimed trial. 6. The following witnesses were examined by the prosecution to establish its case: i. PW-1: Sh. R.K. Yadav, Investigating Officer/Intelligence Officer, NCB, DZU, N. Delhi ii. PW-2: Sh. Vikas Kumar, Intelligence Officer, NCB, DZU, N. Delhi iii. PW-3: Sh. R.P. M....
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....ated that as of 31.12.2005, Ex. DW-1/1 and Ex. DW-1/2 show that the company had 12 showrooms in Delhi. He further stated that there had never been any authorized showroom at Udyog Vihar, Peeragarhi. 9. The learned Special Judge convicted the appellants and sentenced them in the terms noted hereinabove. 10. Learned counsels for the appellants submit that there is infirmity with respect to the secret information (Ex. PW-2/E). It does not mention the vehicle number and make of second vehicle i.e. Marshall Jeep - HR-13A-0170 in which appellant Chand Singh and appellant Jasbir Singh would come to collect the delivery of Charas from appellant Narinder Singh. The information written was incomplete. 11. It has been pointed out by the learned counsels that the notice given under Section 50 (Ex. PW-1/B) of the Act, wherein the appellant Chand Singh had only stated that he did not want his search and the vehicle's search in presence of Gazetted Officer, did not state anything with respect to the search before a Magistrate. Thus, he was not given an option to be searched in front of a Magistrate. It is further submitted that the seizure memo (Ex. PW-1/E) does not record that notice un....
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....a cloud of doubt. 15. On the aspect of samples not being representative, it is submitted by the learned counsels that samples were not drawn as per the proper procedure. Recovery memo (Ex. PW-1/E) discloses that seven gunny bags were recovered from both the vehicles. When the gunny bags were opened, six of them (A to F) contained 20 packets each, and every packet was found containing four slabs. The seventh gunny bag ('G') was found containing 28 packets and every packet was found containing four slabs. Each packet was weighed and was found to be 1 kilogram. Thereafter, two samples were taken from each gunny bags totaling to 14 samples of 25 grams each. R.K. Yadav (PW-1) deposed as follows: "Two samples of 25 grams were drawn and taken from each gunny bag and was kept in a plastic polythene in total and the mouth of each polythene bag was stapled. The samples drawn were marked A1, A2 to G1 and G2. In all 14 samples were taken out which were kept in a plastic polythene bag and same was put in a white envelope which were sealed with the seal of "NARCOTICS CONTROL (sic.) BUREAU DZU 1" over a paper slip which was signed by me by all the three accused persons and by the publ....
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....andard. Thus, he could have written the statement himself. The supplementary statement of the appellant was written in his own handwriting. 19. Learned counsels submit that the appellants were in custody when the statements under Section 67 of the Act were recorded. As per the record, they appeared in the office in pursuance of the summons under Section 67 NDPS Act. Their arrest was made after the statements, and on the basis of material collected during investigation. He submits that to say that the appellants were not in custody is misplaced and incorrect, since, all the proceedings were carried out while the appellants were in the custody of the NCB officials. The appellants were already in custody when the statements were recorded on 31.12.2005 and the formal arrest had been shown on paper later. Therefore, the said statement recorded under Section 67 of the Act cannot be relied upon by the prosecution. 20. On the aspect of possession and conscious possession, it is submitted by learned counsels that the burden to prove the possession of the contraband substance with the appellant was on the prosecution. Reliance is placed on Noor Aga v. State of Punjab & Anr., (2008) 16 ....
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....he contraband having been recovered from them. 25. Learned counsels submit that discrepancies exist in the testimony of R.K. Yadav (PW-1). In his cross-examination, he deposed that: "After the completion of the proceedings, the official seal was not handed over to any independent witness. We completed all the proceedings in the basement of our office till 11.45 p.m. I do not know as to whether the independent witness- Nafe Singh left the office immediately after the completion of proceedings or stay there however he was summoned by serving the notice U/s 67 NDPS Act." 26. The appellants submit that R.K. Yadav (PW-1) clearly stated that the proceedings were carried on till 11:45 pm in the basement of the office. However, the office of NCB does not have a basement. Therefore, the story of the prosecution with respect to the recovery, and proceedings held thereafter are concocted and cannot be believed. 27. Learned counsels further submit that the appellants were not apprehended from the said spot on the relevant date. The statements of prosecution witnesses are inconsistent with respect to the location of the vehicles, as well as the location of Hero Honda showroom.....
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.... notice under Section 50 of the Act was not required to be met, since the recovery was not to be affected from the person of the appellants themselves, but the vehicles. R.K. Yadav (PW-1) deposed that: "On the search of the vehicle, I alongwith my officers found that two plastic gunny bags were found lying in a vehicle No. HR-13/A-0170 martial jeep and five plastic gunny bags were found in vehicle no.HR-68-1558." 31. Even otherwise, Section 50 was duly complied with, as substantiated from the statements of official witnesses and the three notices served upon the appellants (Ex. PW-1/B, Ex. PW-1/C and Ex. PW-1/D). 32. He further submits that Section 42 of the Act is not applicable as the secret information (Ex. PW-2/E) was not required to be reduced in writing. Even otherwise, prosecution witnesses have explained that telephonic information had been recorded. The search authorization was in respect of two vehicles - which is clearly endorsed on the secret information (Ex. PW-2/E). 33. It is also submitted by the learned SPP that a reasonable explanation has been provided by R.K. Yadav (PW-1) in his cross-examination regarding the non-joining of other public witness....
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....ecovered charas were again put in a different six white colour gunny bags and one in yellow colour separately and mouth of gunny bag were closed tiedly with the help of plastic rope and same were sealed with the seal of "NARCOTICS CONTROL BUREAU DZU 1" over a paper slip signed by me, all three accused persons and by panch witness who put their thumb (sic.) impression pasted on the cardboard. I also prepared the test memo in triplicate." 37. He further stated that: "At this stage, the seven white colour envelopes are produced in the court duly sealed over a paper slip of the envelopes. There are four seals on each of the envelope. The seal with which all are sealed is of Narcotics Control Bureau DZU-1. The four seals on each envelope are affixed on both end of the envelopes. The seals are intact." 38. Therefore, if the samples had been tampered with, the seals would not be found intact. Furthermore, P.C. Khanduri (PW-10), member of the raiding party and Malkhana incharge deposed as follows: "On 1.1.2006 sh. RK Yadav IO deposited the case property, samples, test memos and the above two vehicles in the malkhana. I made entry in the register at sl no. 27 in my o....
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....t state that the report of CRCL does not pertain to the entire quantity, or represent the entire quantity. During that stage, no grievance was raised with respect to the taken samples not being representative. 43. Learned SPP further submits that the statements recorded under Section 67 of the Act are, in fact, the statements that were voluntarily given by the appellants. Perusal of the same revels that the appellants have disclosed information to which only they are privy to. The statement of appellant Chand Singh is as follows: "Q: Give a detailed description of the 148 kgs of charas that was recovered from you on 31st December 2005? A: This whole event was planned by me with the help of Mohan. My friend and Jasbir Singh @ Haali from village Rewadi Khedi, District-Jhajhar, Haryana was also part of this event. We planned to bring charas from Nepal by a vehicle. On 20-12-2005, both of us (Jasbir and Chand Singh) travelled to Raksol, Bihar by Samparkranti Express (2nd class). Mohan came to railway station and took us to his home. We stayed there till 25-12-2005, during our stay we met a person named Rajan who was from Nepal and after speaking to him, I gave Rs. ....
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....earned SPP that although the appellants were produced before the court on 02.01.2006 on an application filed by the NCB seeking judicial remand, no retraction application was filed by the appellants. The appellants did not retract the statement at the earliest opportunity. This clearly suggests that the retraction was made on account of legal advice received, and same is an afterthought. The retraction application was filed by appellant Chand Singh and appellant Jasbir Singh on 16.01.2006. Narender Singh did not even file any retraction statement which strengthens the case of the prosecution. The retractions, therefore, cannot be read in evidence. 46. On the aspect of possession and conscious possession, learned SPP states that Sections 35 and 54 raise a statutory presumption in favour of prosecution. The possession of the contraband substance was established from the link evidence as well as the statements of all the prosecution witnesses. Therefore, the Court must draw the presumption that the appellants were in conscious possession of the contraband substance. Reliance is placed on M. Prabhulal v. The Assistant Director, DRI, AIR 2003 SC 4311. 47. Learned SPP submits that ....
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....nt case, contradictions between the official witnesses are minor in nature. 53. Learned SPP submits that if the appellants were innocent then it is difficult to understand so as to why they would try to flee away when the NCB officials approached them. In his cross examination, R.K. Yadav (PW-1) stated that "The occupants of the vehicle started running as soon as we started towards them. Accused Narender Singh Jhakkar was present in his vehicle and did not run (sic.)" 54. He further submits that the MLCs of appellants do not show any injury. Therefore, it cannot be said that the statements or any other proceedings were conducted based on coercion. 55. Learned SPP submits that the due process was followed and the letter to Red Cross Society (Ex. PW-1/Z) substantiates the story of prosecution. Moreover, Anil Kumar Joshi (PW-9), Assistant Secretary of Red Cross Society deposed that the appellant Narender Singh Jhakkar was the driver of the funeral van belonging to the Red Cross Society. He had also brought the original documents i.e. registration certificate (Ex. PW-1/G) and insurance certificate (Ex. PW-1/G1) pertaining to the funeral van no. HR 68 1558. Therefore, the ident....
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.... did not state anything with respect to the search before a Magistrate. Therefore, he was not informed about his right to be searched before a Magistrate. Consequently, he should have been searched before a Magistrate. I find no merit in this submission of learned counsels. Perusal of the said notices (Ex. PW-1/B, Ex. PW-1/C and Ex. PW-1/D) reveals that the appellants were apprised of their right to be searched before a Gazetted Officer, or a Magistrate. In reply to the notice, the appellant wrote that he did not want to be searched before a Gazetted Officer. R.K. Yadav (PW-1) clearly deposed that the notices were given to all the appellants, and their denial of being searched before a Gazetted Officer or a Magistrate had been endorsed by the appellants on the said notices in their handwriting. This is sufficient to show that the appellants were made aware of their right of being searched before an appropriate authority, and the opportunity was given to the appellants to get the search conducted before a Gazetted Officer/ Magistrate, before the search was undertaken. If the appellants did want the search to be conducted before a Magistrate, they would have stated so while declining....
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.... is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance." 62. From the above discussion, it is evident that the appellants were, firstly, apprised of their rights before the search. Even if it were to be assumed that the notices given under Section 50 of the Act were defective in nature, the same is not relevant, as personal search of the appellants was not essential, and the recovery was not effected from the person of the appellants. 63. Learned counsels for the appellants submitted that the arrest of the appellants was made without a proper authorization. The search authorization (Ex. PW-1/A) only authorized the Intelligence Officers to conduct the search of the appellants, but not to arrest them. Even if it is to be considered that the search authorization did not authorize the intelligence officers to arrest the appellants, Section 43 of the Act empowers every intelligence officer....
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.... 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 subsection (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." (Emphasis Supplied) 64. Section 43 reads as follows: "43. Power of seizure and arrest in public place.-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 eviden....
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....tion 43 of the Act, the words used are 'any public place or in transit'. The requirement of recording of information in writing and communicating it to superiors is intended to protect the possible harassment to residents and to maintain personal liberty and human dignity. The term conveyance used in Section 42 is to be understood as ejusdem generis to the terms building or enclosed place. It is not every conveyance whether in public or private that would fall within the scope of Section 42 of the Act. A conveyance in a public place would fall within Section 43 of the Act and Section 49 gives powers to the empowered officer to stop such conveyance for the purpose of search. 11. The Constitution Bench of the Hon'ble Supreme Court in State of Punjab v. Baldev Singh. 1999 SC 237 has held that the material difference between the provisions of Section 43 and Section 42 is that Section 42 requires recording of reasons of belief and of opinion writing with regard to commission of offence before conducting search and seizure whereas Section 43 does not contain any provision and empowers the officer under Section 43 of the Act for seizure of the article etc. and arrest of the p....
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....ble to be confiscated under the Act, or any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance. Thus, Section 42 speaks about search and seizure from any building, conveyance or enclosed place, while Section 43 speaks about the search and seizure from public place or in transit. It is important to note that the wordings of Sections 41 and 42 with regard to information taken, in writing have been deliberately omitted by the Legislature in Section 43 and in our view, that has been done so advisedly inasmuch as the Police Officer empowered under Section 42 may get information with regard to the person in any public place or in transit at the last moment and if he has to undergo the procedure of taking that information in writing and recording the reasons for his belief, possibly such information may not be useful. When that is so, any search or seizure is to be made in any public place or in a vehicle in transit or any person is to be arrested or detained from a public place, it is not intended by the Legislature to take down the said information in writin....
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....as also on the basis of the decisions in Baldev Singh, Balbir Singh and Abdul Rashid Ibrahim Mansuri, I am of the humble view that Section 42(2) of the NDPS Act will not apply to a case of information regarding the availability of the contraband in a public place as it happens in the present case. It follows that the accused is not entitled to get an acquittal based on alleged violation of Section 42(2) of the NDPS Act, albeit the prosecution has failed to establish that the information received by P.W.2 was recorded by him and a copy sent to the superior officer in writing before P.W.2 proceeded to the scene of occurrence." 16. Thus, it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section 43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than in a pu....
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....le explanation had been provided by R.K. Yadav (PW-1) in his cross-examination in this regard. Perusal of his cross-examination reveals that he made the efforts to contact two-three public persons, but only one person, viz. Nafe Singh agreed to become a witness. In Ajmer Singh v. State of Haryana, (2010) 3 SCC 746, the Supreme Court has observed: "19. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case ....
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..... Prabhulal v. The Assistant Director, DRI, AIR 2003 SC 4311 and in Ram Swaroop v. State, AIR 2013 SC 2068. The appellants - in their statements recorded under Section 313 Cr.P.C., had stated that they have been falsely implicated. However, the appellants failed to show that there was any motivation for their false implication with such a huge quantity of charas. It is also not established through any evidence that the NCB officers had any enmity against the appellants. The Supreme Court in State, Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652, held that: ".....Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross- examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into ac....
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....esentative sample from the whole of the seized substance. This is a matter of practice, rather than a point of procedure or law. There is no basis to assume that the packets, from which the samples were not drawn, were containing substance different from that contained in the packets from which the samples were indeed drawn. When all the packets in a particular bag were kept together, without any differentiation, there is no basis to claim that the untested packets contained substance different from the packets which were tested. No rule has been cited by the appellants to claim that samples should have been drawn as per the prescribed procedure. 74. The second argument advanced was that the recovery memo (Ex. PW-1/E) does not mention the weight of each slab contained in the packets. It was also submitted that, it is possible that each of the slab weighed different. Therefore, one cannot assume the slabs to be 250 grams each. Perusal of the record does suggest that the slabs were not individually weighed. R.K. Yadav (PW-1) deposed that "On weighing each packet were found to contain one Kilogram of Charas". He further deposed that "The solid substance i.e. Hashish/Charas having 2....
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....pectively. Thus, 14 samples were sent to CRCL for analysis. At no point was the recovered substance mixed together. Therefore, the reports obtained in the present case were different for different drawn samples. 78. Even if it is to be assumed that the duplicate samples were drawn from the same packet contained in each of the seven bags, and the weight of each of those seven packets was 1 kilogram each, then it can be deduced that the appellants were in possession of at least 7 kilograms of charas, which falls within the commercial quantity prescribed under the Act. 79. On the aspect of tampering, it was submitted by the learned counsels that there was a strong possibility that the samples were tampered with. Reliance was placed on Abdul Ghaffar (supra). Learned SPP submitted that the seized property could not have been tampered with. At the time of seizure, signatures of all the appellants were taken on the paper slips attached to the samples. He also relied on the statement of R.K. Yadav (PW-1) who deposed that the paper slips attached to the seized substance was signed by him, all the appellants, and the thumb impression of the public witness was also put. The NCB DZU 1 se....
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....esses stand corroborated with respect to the seals being in intact condition. 83. Perusal of the statements of appellants recorded under Section 67 of the Act corroborates with the seizure proceedings, as recorded by the official witnesses. It was also pointed out that none of the appellants made an application for re-examination of seized drugs. At that time, no grievance was raised with respect to the representativeness of the sample. In such a situation, the appellants cannot raise a grievance at this stage, when they did not raise this issue at the relevant time by making an application for re-examination of the samples. 84. I find no merit in the submission of the learned counsels for the appellants that the statements of appellants recorded under Section 67 of the Act were not voluntary. The MLCs of the appellants show no sign of manhandling or physical coercion. Moreover, the appellants have disclosed facts leading to the recovery and personal facts that only they were privy to. Appellant Chand Singh stated as follows: "Q: Please, introduce yourself. A: I was born on 12.04.1959 in the village Lowa Khurd, Tehsil Bahadurgarh, District Jhajjar, Haryana. ....
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.... village Khanpur Kalan. My father is a farmer. My mother Smt. Sajjan Kaur is a housewife. I have an elder brother whose name is Ramesh @ Charan Singh who is a Havaldar in 14 Batallion, Rajasthan Rifles, Army. I passed my matriculation from government school. After studies, I started farming. In year 2002, I joined Red Cross Society, Panchkula as a driver. Prior to that i.e. in 1997, I worked as a driver in Fire Brigade, Panchkula on temporary basis. In 1991, I got married with Smt. Guddi @ Roshni and I have two children. My elder son namely Arvind is 6 years old and younger son Parveen is 4 and half years old. Q: What type of work do you do in Red Cross Society? A: I am a driver of a funeral van bearing registration number HR 68 1558. I ferry dead bodies in a van at different places and its charges @ Rs. 4 per km is deposited in Red Cross." 87. Thus, there is no merit in the submission that the statements of the appellants recorded under Section 67 were not voluntarily made. 88. It is pointed out that there exists a discrepancy with respect to the date mentioned on the summons (Ex. PW-1/K) issued to appellant Chand Singh under Section 67 of the Act. The summ....
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.... a time when the person making such statement had not been made an accused in connection with the alleged offence. 44. In addition to the above, in the case of Raj Kumar Karwal v. Union of India and Ors., 1991 CriLJ 97, this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not 'police officers' within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view. 45. Considering the provisions of Section 67 of the N.D.P.S. Act and the views expressed by this Court in Raj Kumar Karwal's case (supra), with which we agree, that an officer vested with the powers of an Officer-in-Charge of a Police Station unde....
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....e proceedings had been completed. 92. I find merit in the submissions of the learned SPP that although the appellants were produced before the court on 02.01.2006 on an application filed by the NCB seeking judicial remand, no retraction application was filed by them at the earliest opportunity. The retraction application was filed by appellant Chand Singh and appellant Jasbir Singh on 16.01.2006.This evidently suggests that the retraction statements of the appellant Chand Singh and the appellant Jasbir Singh are an afterthought. They did not retract the statement at the earliest opportunity. Perusal of the record reveals that appellant Narender Singh did not even file any retraction statement, which goes on to prove the case of the prosecution. 93. On the aspect of conscious possession, it is to be first ascertained whether the appellants were in possession of the contraband substance. As noted above, the possession of the contraband stands established. Thus, the question that now remains to be examined is, whether the appellants were in conscious possession of the contraband substance. The aspect of conscious possession has been given a statutory recognition under the scheme....
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....rusal 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, the legal burden would 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." ....
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....h the appellants, beyond reasonable doubt. Thus, the question of conscious possession does not arise, since possession has not been established in the first place. 99. In the present case, possession has been established by the prosecution beyond reasonable doubt. The recovery proceedings have been duly proved beyond shadow of doubt. Perusal of the statements of the appellants as well as the official witnesses reveals that there is a high degree of corroboration of facts leading to the recovery, seizure and arrest proceedings. As noted above, minor discrepancies in the testimonies of witnesses that do not go into the root of the case of the prosecution cannot be held to vitiate the proceedings conducted. Therefore, it was for the defence to rebut the presumption that the appellants were not in conscious possession of the contraband. 100. However, the appellants have failed to rebut the presumption that they were not in conscious possession. Hence, it stands proved that the appellants were not only in possession, but in conscious possession of seized charas. 101. It was argued by learned counsels that it cannot be believed that the contraband substance was tested at the spo....
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.... his cross examination stated that the two vehicles had their back towards each other and the distance between the vehicles was about 1 to 2 feet. Vikas Kumar (PW-2) deposed that the vehicles were parked in the service lane near Hero Honda showroom and that the appellants were unloading the bags from HR 68 1558. He also stated that there was about 1 and half meter distance between the two vehicles. N.S. Yadav (PW-5) stated that the Hero Honda showroom was on the right side of the road when they approached the vehicles of the appellants. He also stated that the distance between the backside of both the vehicles was 2-3 feet. Avinash Kumar (PW-6), in his cross-examination deposed that the Hero Honda agency is about 1 kilometer from Peeragarhi Chowk and that the Hero Honda Agency was on the side from Punjabi Bagh to Rohtak. Jeep was facing towards Rohtak. It is evident that the prosecution witnesses have all deposed on the same lines. No doubt certain minor inconsistencies exist with respect to the distance between the two vehicles and the exact location of the Hero Honda showroom but they do not affect the case of the prosecution at its root. In this regard the Supreme Court in C. Mu....