IMPORTANT POINT
Possession of the contraband is sine qua non for conviction u/s 8, NDPS Act, 1985.

Judgment :

The appellant was convicted under Sections 8/18, 8/20(B)(ii) and 8/20(B)(i) of the Narcotic Drugs Psychotropic Substances Act and sentenced to 10 years R.I. and fine of Rs.1,00,000/- and in default thereof to undergo R.I. For two years. He is before us by way of special leave.

The prosecution story is as under:

On 11th September, 1999 at about 7.00 a.m., PW.11 Ram Chander, SHO, Kotwali Fatehpur and several other police officials raided the house allegedly belonging to the appellant to arrest Pankaj his son in some criminal matter, and as they approached his residence, they saw the appellant who was present attempting to run away. He was however apprehended and the house entered and searched and a huge quantity of Charas, opium and Gaanja were recovered from under a mattress in a newly constructed room. The S.H.O. sent information to the Superintendent of police, Seekar and completed the other formalities relating to the search & seizure. Several independent witnesses were also called to countersign the search memos. The contraband recovered was sent to the Malkhana and thereafter for analysis to the Laboratory and a report was duly received. On completion of the investigation the appellant was charged for the offences above-mentioned and as he pleaded innocence, he was brought to trial.

The prosecution in support of its case examined 14 witnesses in all; the primary ones being PW.3 and 13, said to be independent witnesses to the search and seizure, PW.12 an Engineer from the Department of Telecommunication and PW.14 from the Electricity Department to identify the house as belonging to the appellant, and the investigating officer, PW.11 Ram Chander. The trial Court recorded a finding that the ownership and possession of the contraband in question had been proved beyond doubt, in the light of the fact that the witnesses had deposed that the recovery had been made from the house belonging to and in possession of the appellant and that the samples of the contraband had been properly sealed and kept in proper custody and having held as above, convicted and sentenced the appellant. An appeal taken to the High Court by the appellant did not succeed. The matter is now before us by special leave.

At the very outset Mr. Bhatti, the learned counsel for the appellant, has pointed out that the appellant had been arrested on 11th September, 1999 and as he had not been bailed out at any stage, he had almost completed the period of his sentence but as a fine of Rs.1,00,000/- had also been imposed the matter was still alive and required consideration. He has accordingly submitted that the main issue that would arise in this Court would be as to whether the contraband was in possession of the appellant, and if a doubt could be created on this important aspect, the prosecution story must fail. He has further pointed out that the trial Court as well as the High Court were conscious of this difficulty and had bye-passed the evidence in an unacceptable manner apparently for the reason that the recovery pertained to a huge quantity of contraband material. He has also relied on Mohd. Alam Khan vs. Narcotic Control bureau and another AIR (1996) SC 3033 to contend that the finding on the question of possession and ownership was a sine qua non before an accused could be convicted in the case of a recovery made from a house which was occupied by several persons other than the accused.

Mr. Manish Singhvi, the learned counsel for the respondent-state has, however, supported the judgment of the courts below and has further pointed out that the site plan and the evidence of PW.3 when appraised together led to the conclusin, that the house from which the contraband had been seized was not only in the possession of the appellant but also in his ownership and as the police party had been looking for the appellants son Pankaj a presumption could safely be drawn that the house did belong to him.

We have considered the arguments advanced by the learned c