IMPORTANT POINT
Conscious possession of poppy straw – Incriminating circumstances not put to accused in his examination under Section 313 of Cr.P.C, will have to be kept out of consideration.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. The appellant who is accused no. 3, along with two co-accused, was convicted by the learned Special Judge under the Narcotic Drug and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) for the offence punishable under Section 15 of NPDS Act. Learned Special Judge held that the prosecution had brought home the charge against the accused that they were found in conscious possession of poppy straw having the quantity of 205 kilograms without any licence or permit. The accused, including the appellant, were ordered to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- each. The default sentence was of imprisonment for two years. The conviction of the appellant and two others has been confirmed by the High Court by the impugned judgment.

2. On 22nd May 2001, Assistant Sub Inspector Dhian Singh (PW-10), along with other police officials, was on patrolling duty in Ambala Cantonment. They received secret information in the afternoon that three parcels on platform no. 4 and two on platform no. 6 of Ambala Cantonment station contained contraband. The destination of the parcels was Kurail Railway Station. Therefore, a letter was addressed to the Chief Parcel Supervisor about the information with a request to arrange for an inspection. The inspector in charge of the Railway Protection Force (R.P.F.) was summoned, and the parcel was shifted to the office of the Chief Parcel Supervisor. The parcels were opened. A total of ten bags were found in five parcels, five bags containing 20 Kilograms of poppy straw each and the other five bags containing 21 Kilograms each. Necessary formalities of drawing panchnama, drawing samples, sealing the parcels, etc. were done. After that, on 28th May 2001, Inspector Ram Phal (PW-11) and Dhian Singh (PW-10) visited railway station Kurail, the destination of the parcels. Krishan Dev Joshi (PW-2), the station supervisor, was apprised of the facts of the case. After that, accused no. 2-Rahish alias Munna, approached PW-2 with a railway receipt concerning the parcels in question. As per the instructions of the Police, he was asked to wait. PW-2 immediately informed the police. After some time, the appellant-Nababuddin alias Mallu alias Abhimanyu, approached PW-2 and enquired about the same parcels. The accused no. 2, and the appellant were asked to wait. They were arrested. Subsequently, on 31st May 2001, accused no. 1 was arrested at railway station Ambala Cantt. It is alleged that accused no. 1 had got the parcel booked. The prosecution examined 10 witnesses. The Special Court recorded a finding that though the contraband was recovered during transit, the persons possessing railway receipt of the parcels shall be deemed to have control over the contraband and, thus, in conscious possession thereof. The High Court has confirmed the conviction.

SUBMISSIONS

3. The submission of the learned counsel appearing for the appellant is that he is a rikshaw puller like the accused no. 2. According to the appellant, accused no. 2 had gone to enquire about the arrival of parcels on behalf of the owner to the railway station, and when he failed to return, the appellant went to the railway station to enquire about him. His submission is that even the railway receipt of the parcels was not produced by the appellant but by the accused no. 2. He submitted that the case made out by the prosecution that the railway receipt stood in the name of the appellant had not been put to the appellant in his examination under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’). He submitted that even the allegation that the appellant approached the station supervisor to enquire about the parcel was not put to the appellant in his examination under Section 313 of Cr.P.C.

4. The learned counsel appearing for the respondent urged that both the material circumstances about which the appellant has made grievance were put to the appellant as can be