The prosecution's burden to prove the recovery of contraband from the accused, the presumption under Section 35, and the link between the contraband and the accused were central legal principles established in the judgment.

JUDGMENT :

A.V. RAVINDRA BABU, J.

1. Challenge in this Criminal Appeal is to the judgment, dated 08.09.2009 in NDPS Sessions Case No. 31 of 2007, on the file of the Special Judge for Trial of the Cases under the Narcotic Drugs and Psychotropic Substances Act, 1985-cum-I Additional Sessions Judge, East Godavari, Rajahmundry (“Special Judge” for short). This appeal is filed by the unsuccessful A.1 and A.2 in the aforesaid Sessions Case. They faced trial under Section 8(c) r/w Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (“NDPS Act” for short) and they were convicted under Section 235(2) of the Code of Criminal Procedure (“Cr.P.C.” for short) and sentenced to suffer rigorous imprisonment for 10 years each and to pay fine of Rs.1,00,000/-each in default to suffer simple imprisonment for six months each.

2. The parties to this Criminal Appeal will hereinafter be referred to as described before the learned Special Judge for the sake of convenience.

3. The case of the prosecution, in brief, as set out in the charge sheet filed by the Inspector of Police, Korukonda Circle, alleging the offence Section 8(c) r/w Section 20(b)(ii)(C) of N.D.P.S. Act is as follows:

On 22.08.2007 at about 8-30 a.m., while K.V.N. Vara Prasad, Inspector of Police, Korukonda Circle (P.W.5) was present in his office, he received credible information that Ganja is being transported from Tirumalayapalem to Rajahmundry by some smugglers. He left his office in Government jeep and reached Gokavaram at about 9 a.m., secured the presence of Addanki Adinarayana Rao (P.W.1) and Polarapu Vadapalli (L.W.2) mediators at Gokavaram Police Station, and he has also collected Ch. Suribabu, Sub-Inspector of Police, Gokavaram Police Station (P.W.4) and his staff at about 9 a.m. They proceeded towards Tirumalayapalem. They reached near reserve forest area between villages of Rampa Yerrampalem and Tirumalayapalem and noticed goods auto bearing Registration No. A.P.05-V-7805 proceeding from Tirumalayapalem towards Rampa Yerrampalem village. On seeing the police jeep, the auto driver tried to turn back. In the meanwhile, two persons who sat on the back side of the auto cabin, jumped from the cabin and escaped into the reserve forest. In the meanwhile, P.W.5 rounded up the auto with his staff and caught the remaining two persons, Puli Appa Rao (A.2) is the driver-cum-owner of the auto and Anuboina Krishna (A.1) sat on his side. P.W.5 arrested both of them under suspicious circumstances. On questioning them about their names and addresses, they disclosed the same. On their disclosure, two gunny bags which are loaded in the auto cabin were also found. They stated that the bags contained ganja and smell of ganja is emanating from the bags and a notice was served to them seeking their option whether they would need presence of a Gazetted Officer or a Magistrate to check the contents of bags, duly signed by P.W.5 and the accused expressed their desire that they need a Gazetted Officer to check the bags and also acknowledged the notice, P.W.5 separated A.1 and A.2, interrogated them in the presence of mediators and recorded their confessions under a cover of mediators report. When P.W.5 questioned them about absconded persons, they furnished that their names are Yelugubanti Veerababu (A.3) and Yeluri Srinu (A.4). When P.W.5 questioned whether they have got any permit for possession and transportation of such ganja they replied that they do not have such licence. After taking custody of the accused and gunny bags, they were produced before the Tahsildar-cum-Executive Magistrate, Gokavaram at about 11 am., Md. Khasim, Tahsildar-cum-Executive Magistrate, Gokavaram Mandaki (P.W.2) who was available in the office. He gave his consent to check the bags in the auto in the presence of mediators, P.W.2 examined the accused and the accused confessed about the contents of the bags and he verified the contents of the bags. P.W.5 deputed the P.C.378 to bring one person wit