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2016 Supreme(Cal) 336
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
ANIRUDDHA BOSE AND SANKAR ACHARYYA, JJ.
Gurvinder Singh - Appellant
Vs.
The State of West Bengal & Ors. - Respondents
C.R.A. 353 of 2008
Decided On : 02-08-2016
For the Appellants : Mr. Sanjit Singh.
For the state : Mr. Subir Banerjee, Mr. Jayanta Banerjee.
The Court reiterated the principles of conscious possession and the presumption of culpable mental state under the NDPS Act. It held that once possession is established, the burden shifts to the accused to prove the absence of a culpable mental state, and that the prosecution can rely on presumptions under Sections 35 and 54 of the NDPS Act to establish the accused's guilt.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT - SECTION 42, 43, 50, 53 - CONSCIOUS POSSESSION - BURDEN OF PROOF - SECTION 35 - PRESUMPTION OF CULPABLE MENTAL STATE - SECTION 54 - PRESUMPTION FROM POSSESSION OF ILLICIT ARTICLES - EVIDENCE ACT, SECTION 293 - ADMISSIBILITY OF EVIDENCE WITHOUT EXAMINING WITNESS - GANJA - SEIZURE - CONSCIOUS POSSESSION - PUNISHMENT.
Fact of the Case:
The accused-appellant was convicted and sentenced for possession of 540.700 kgs of Ganja under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution case was that the accused was driving a truck intercepted by the police, and upon search, 58 packets of Ganja were recovered from an extra chamber behind the driver's cabin. The appellant challenged the conviction, arguing that the provisions of Sections 42, 43, 50, and 53 of the NDPS Act were not complied with, and that the prosecution failed to prove conscious possession of the Ganja.
Finding of the Court:
The Court held that the prosecution successfully proved the conscious possession of the Ganja by the accused. The Court relied on the evidence of witnesses, including the Executive Magistrate, Circle Inspector, and local witnesses, who testified to the search, seizure, and recovery of the Ganja. The Court also considered the accused's failure to provide a satisfactory explanation for the presence of the Ganja in the extra chamber behind the driver's cabin.
Issues: 1. Whether the provisions of Sections 42, 43, 50, and 53 of the NDPS Act were complied with during the search, seizure, and arrest? 2. Whether the prosecution proved the conscious possession of the Ganja by the accused?
Ratio Decidendi: 1. The Court held that there was substantial compliance with the provisions of Sections 42 and 43 of the NDPS Act, as the search and seizure were conducted in a public place and the accused was arrested. The Court also held that there was no violation of Section 50, as the search was not a personal search, and Section 53 was not applicable as the investigation was conducted by competent officers. 2. The Court held that the prosecution successfully proved the conscious possession of the Ganja by the accused based on the following factors: - The accused was the sole occupant of the truck at the time of interception. - The Ganja was found in an extra chamber behind the driver's cabin, which was concealed under jute bales. - The accused failed to provide a satisfactory explanation for the presence of the Ganja.
Final Decision: The Court dismissed the appeal and confirmed the impugned judgment of conviction and sentence.
SANKAR ACHARYYA, J.
1. This appeal has been filed by accused-appellant challenging the judgment and orders of conviction dated 03.04.2008 and sentence dated 04.04.2008 passed by learned Additional Sessions Judge cum Judge, Special Court under the Narcotic Drugs and Psychotropic Substance Act (in short N.D.P.S. Act) 1985, Cooch Behar in G.R. Case No. 345/05 under Section 20 (b) (ii) (c) of the N.D.P.S. Act, 1985. In the impugned judgment the accused was found guilty of the charge under Section 20 (b) (ii) (c) of the N.D.P.S. Act, 1985 and sentenced to suffer rigorous imprisonment for 12 years and to pay fine of Rs.1,50,000/- and in default of payment of fine to suffer simple imprisonment for two years more. Order has been passed for confiscation of the seized property to the State.
2. Inter alia, the appellant has contended in the petition of appeal that the appellant has been seriously prejudiced by the impugned judgment and the impugned judgment is liable to be set aside. It has been contended that the provisions of Sections 42, 43, 50 and 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 had not been complied with causing miscarriage of justice. The appellant has claimed that the prosecution failed to prove conscious possession of the alleged Ganja against the accused-appellant. The appellant has alleged that the impugned judgment is bad in law and liable to be set aside. The appellant remains in judicial custody since passing of the impugned judgment.
3. In the trial Court the prosecution case was that on the basis of a source information on 28.11.2005 S.I. Joydeb Ghosh as Officer-in-Charge of Boxirhat P.S., Cooch Behar alongwith police force rushed to Taraganj Bridge to work out the information relating to trafficking of contraband article in a truck. They signalled one truck bearing No. NL/04D/3847 to stop but the truck driver tried to go away violating the signal. The police personnels chased and apprehended the truck and its driver. On interrogation the truck driver made different statements regarding contents of loaded truck. Primarily the truck was found loaded with jute but smell like Ganja was coming out from the truck. A serious suspicion arose in the mind of the police personnels due to such smell and behaviour of the driver. They detained the truck and the driver Gurvinder Singh (appellant herein) and took the truck and the driver to a field of Swamiji Sangha Club in the vicinity of the P.S. Boxirhat. Police informed the S.D.O., Tufanganj to depute one Executive Magistrate and also informed the fact to superior police officer that is Circle Inspector (Sadar), Cooch Behar. Subsequently, Executive Magistrate Sajal Kanti Das and the Circle Inspector reached there and in their presence search of the intercepted truck was done by police of Boxirhat P.S. On search it was detected that there is an extra chamber behind the driver’s cabin wherefrom smell of Ganja was coming out. Said cabin was kept concealed under jute bales. Under direction of the Executive Magistrate the upper cover of that extra chamber was broken and police recovered 58 packets of Ganja which were subsequently weighed and found it as 540.700 kgs. Said Ganja, truck, the wooden cover of extra chamber made of wood and tin and jute bales were seized by police in presence of Executive Magistrate and Circle Inspector and three local witnesses. Sample was collected in three packets from the seized Ganja and the said packets were sealed and labelled. The appellant Gurvinder Singh was arrested by police. Said S.I. Joydeb Ghosh lodged FIR at Boxirhat P.S. on 28.11.2005 and the case was investigated by police officers Debabrata Jha (PW 18) and then Dhananjay Roy (PW 19).
4. During investigation sample of seized Ganja was examined by chemical examiner in Forensic Science Laboratory and the seized contraband article was confirmed as Ganja. Before lodging FIR photographs of the seized articles and of the accused were taken by PW 13 and said photo
