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2020 Supreme(Bom) 906
IN THE HIGH COURT OF BOMBAY AT PANAJI BENCH
M.S. Sonak, J.
Allan Bainbridge, Presently At Central Jail - Appellant
Versus
State Of Goa - Respondent
Criminal Appeal No. 26 of 2019
Decided On : 24-09-2020
Ryan Da Piedade Menezes, Advocate, Pravin Faldessai, Advocate
The burden of proof on the accused to rebut the presumption of conscious possession of contraband under Section 35 of the NDPS Act must be met by proving the accused's knowledge and culpable mental state beyond reasonable doubt.
Headnote:
NDPS Act - Illegal Possession - Section 8(c) r/w. Section 22(c) - [8(c), 22(c)] - The court discussed the provisions of Section 35 of the NDPS Act and the burden of proof on the accused to rebut the presumption of conscious possession of contraband. The court emphasized the need for the prosecution to prove the accused's knowledge and culpable mental state beyond reasonable doubt. The court distinguished the present case from previous judgments and held that the accused failed to rebut the presumption, leading to the dismissal of the appeal.
Fact of the Case:
The accused was found in illegal possession of LSD Liquid and MDMA during a narcotic raid. The accused denied conscious possession of the contraband, citing lack of evidence and alternative explanations for the presence of narcotics in the house.
Finding of the Court:
The court found that the prosecution had successfully proven the accused's conscious possession of the contraband beyond reasonable doubt. The accused's attempts to raise doubts and alternative explanations were deemed insufficient to rebut the presumption under Section 35 of the NDPS Act.
Issues: The key issue was whether the accused was in conscious possession of the contraband, and if the prosecution had discharged the initial burden of proving the accused's knowledge and culpable mental state.
Ratio Decidendi: The court emphasized the need for the prosecution to prove the accused's knowledge and culpable mental state beyond reasonable doubt, as per Section 35 of the NDPS Act. The court distinguished the present case from previous judgments and held that the accused failed to rebut the presumption, leading to the dismissal of the appeal.
Final Decision: The appeal was dismissed, and the accused's conviction and sentence under Section 8(c) r/w. Section 22(c) of the NDPS Act were upheld.
JUDGMENT
M. S. Sonak, J. - Heard Mr. Ryan Da Piedade Menezes under Legal Aid Scheme for the Appellant and Mr. Pravin Faldessai, Additional Public Prosecutor for the Respondent.
2. This appeal is directed against the judgment and order dated 23.02.2016 made by the learned NDPS Court at Mapusa in Special Criminal Case (NDPS) No.38/2014 by which the accused was convicted of the offence punishable under Section 8(c) r/w. Section 22(c) of the NDPS Act, 1985, for being found in illegal possession of 6.6 grams of LSD Liquid and 11.4 grams of MDMA, both being the commercial quantities and sentenced to the Rigorous Imprisonment for ten years and payment of fine of 1,00,000/- and in default of payment of fine further Simple Imprisonment for a period of one year.
3. The case of the prosecution is that on 17.05.2014 between 14.55 hrs. to 19.00 hrs. at Bamonwado, Anjuna, Bardez, Goa, the accused was found in illegal possession of 6.6 grams of LSD Liquid and 11.4 grams of MDMA, both being the commercial quantities, in a narcotic raid conducted by PSI Dinesh Gadekar (PW6), Anti narcotic Police Station Panaji on the basis of specific and reliable information, for which the accused failed to account.
4. Accordingly, a charge was framed against the accused to which he pleaded not guilty. The prosecution examined six witnesses and thereafter the statement of accused was recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.). The accused did not examine himself but examined Pallavi Narvekar (AW1) as defence witness. By the impugned judgment and order the learned NDPS Court, has convicted and sentences the accused. Hence the present appeal.
5. Mr. Ryan Menezes, learned counsel for the appellant at the outset submitted that the appellant had raised a ground that when the complainant as also the investigating officer were one and the same, the entire prosecution is vitiated as held by the Hon'ble Apex Court in Mohan Lal v. State of Punjab,2018 17 SC 627. However, Mr. Menezes, quite fairly pointed out that the decision in Mohan Lal (supra) no longer represents the correct position in law as held in Mukesh Singh v. State (Narcotic Branch of Delhi), SLP CRI C Diary 39528 of 2018 decided on 31.08.2020.
6. Even otherwise, in Varinder Kumar v. State of Himachal Pradesh,2020 2 SCC 321, the Hon'ble Apex Court had itself clarified that the law laid down in Mohan Lal (supra) was only prospective and therefore inapplicable to prosecutions, trials and appeals instituted prior to the said decision i.e. 16.06.2018.
7. Mr. Menezes, learned counsel for the appellant also submitted that in this case the ground that there was violation of the mandatory provisions of Section 50 of the NDPS Act was also raised. However, even this ground, stands answered against the accused by the decision of this Court in Raymond Locke v. State of Goa - Criminal Appeal No.82 of 2018 delivered on 04.09.2020.
8. According to me, reference can also be usefully made to the decision of this Court in Kushal Puri v. State in Criminal Appeal No.9/2017 decided on 17.09.2020 which will fully answer the ground about breach of the provisions of Section 50 of the NDPS Act, as raised in the appeal memo.
9. In this case, the evidence on record indicates that the accused was clearly informed of his right to be searched in the presence of a gazetted officer or the Magistrate if he so desires. However, the accused, declined to exercise this right. In any case, the prosecution, in this case, is not relying upon any contraband recovered from the person of the accused. In this case, the prosecution is relying upon the contraband recovered from the refrigerator of the house which was owned and possessed by the accused. These are additional reasons as to why the provisions of Section 50 of the NDPS Act were not attracted and in any case, if attracted, were duly complied.
10. Mr. Menezes, in this case, urged with vehemence that the prosecution has totally failed to establish that the accused wa
