Conscious possession must be established for conviction under the NDPS Act; mere proximity to contraband is insufficient.

JUDGMENT :

URMILA JOSHI-PHALKE, J.

1. By this appeal, the appellant (accused) has challenged judgment and order dated 17.3.2023 passed by learned Special Judge (NDPS Court), Nagpur (learned Judge of the trial court) in NDPS Special Case No.24/2017.

2. By the judgment impugned in the appeal, the accused is convicted for offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) and sentenced to undergo rigorous imprisonment for 3 years and to pay fine Rs.25000/- in default, to undergo simple imprisonment for 3 months.

3. Brief facts of the prosecution case emerged from the police papers and recorded evidence are as under:

The report is lodged by PSI Datta Pendke, who was night duty officer on 1.2.2017 at Railway Police Station (RPF), Nagpur. At about 8:54 am, on 2.2.2017, PSI Bose of RPF Nagpur submitted a letter that the accused, resident of Lonawala, taluka Khandala, district Pune, is travelling in Vishakhapatnam-Nijamuddin Express by illegally possessing contraband “Ganja” in his bag. Therefore, the accused has been intercepted by conducting a raid in bogie where the accused was sitting. The search was offered by the RPF Officers to the accused and his right to get himself searched before gazetted officer was also informed by a written communication. The investigating officer has also called two panchas and a photographer. The accused was brought on the platform and during search of his bag, contraband article “Ganja” weighing 14.676 kilograms was found in his bag. Accordingly, the panchanama was drawn in presence of panchas. Necessary samples were collected, seizure memo was also drawn. The seized muddemal articles were forwarded for the inventory. After registering the offence, the accused has been arrested.

4. During investigation, the investigating officer forwarded the contraband articles to the Chemical Analyzer. Relevant statements were recorded and after completion of investigation, chargesheet was filed against the accused.

5. Learned Judge of the trial court framed the charge vide Exh.19 against the accused. The accused pleaded not guilty and claimed to be tried.

6. In support of the prosecution case, the prosecution examined in all 9 witnesses, as under:

7. Besides the oral evidence, the prosecution placed reliance on requisition letter to photographer Exh.35, spot panchanama Exh.36, inventory panchanama Exh.37, requisition to panchas Exh.41, arrest panchanama Exh.43, report Exh.54, FIR Exh.55, certificate under Section 52-A Exh.73, and CA Report Exh.74.

8. On the basis of the oral as well as documentary evidence, the prosecution claimed that it has proved the case against the accused. All incriminating evidence is put to the accused in order to obtain his explanation by recording his statement under Section 313 of the CrPC.

The defence of the accused is of total denial and of a false implication.

9. After appreciating the evidence, learned Judge of the trial court convicted the accused as the aforesaid.

10. Being aggrieved with the same, the present appeal is preferred.

11. Heard learned counsel Shri Naman Bhangde h/f learned counsel Shri A.K.Bhangde for the accused and learned Additional Public Prosecutor Mrs.S.S.Dhote for the State. They have taken me through the entire evidence.

12. Learned counsel for the accused submitted that the prosecution could not prove the conscious possession of the contraband article with the accused. During cross examination, it came on record that photographer as well as PW2 pancha Rupchand Yadav came on the spot when the accused was already brought at the platform. There is no compliance as to Section 50(1) of the NDPS Act. Exh.42, notice under Section 50(1) of the NDPS Act, is also prepared at about 6.00 am. Thus, there