The prosecution must establish conscious possession beyond reasonable doubt in NDPS cases.

JUDGMENT :

1. Chandrabhan Yadav - sole appellant in Cr.A.No.199/2019; three appellants in Cr.A.No.667/2019 namely Vijay Agrahari, Ramkaran Verma & Smt. Kanchan Bai; and Rakesh Verma - sole appellant in Cr.A.No.235/2019 have preferred these three criminal appeals under Section 374(2) of the CrPC against their conviction by the impugned judgment dated 19-12-2018 by which they have been convicted for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for eleven years and to pay a fine of Rs. 1,10,000/- each, in default of payment of fine to further undergo rigorous imprisonment for three years.

2. Since all the three criminal appeals have arisen out of one and same judgment dated 19-12-2018 passed by the Special Judge (NDPS Act), Surguja (Ambikapur), District Surguja, in one Special Criminal (NDPS) Case No.10/2015 and since common question of fact and law is involved in all the three appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

3. All the five appellants in three appeals were charged for the offence under Section 20(b)(ii)(C) of the NDPS Act stating that on 12-4-2015 at 7 a.m. at Village Jajgi Turn under Police Station Udaipur, District Surguja, in the Marshall Vehicle bearing registration No.UP-54/S-5044 driven by appellant Rakesh Verma, all the appellants were found in conscious possession of 55 Kgs. of narcotic drug namely Ganja which is commercial quantity in a box kept below the back seat and from an iron box built in the back door of the vehicle in a polythene bag and thereby committed the offence. Further case of the prosecution is that on 11-4-2015 an order was passed by the Superintendent of Police, Surguja to the investigating officer K.V. Singh (PW-2) (who was examined on 4-12-2015 but before he could be cross-examined he unfortunately died) for undertaking checking work of vehicles at Jajgi Turn, Udaipur. Accordingly, on 12-4-2015 at 6.30 a.m., K.V. Singh (PW-2) along with police officers of Police Stations Udaipur & Lakhanpur proceeded to Jajgi Turn, Udaipur for carrying out the checking work of vehicles vide Ex.P-36C Rojnamcha Sanha and during checking, K.V. Singh (PW-2) received secret information through informer that some men and women are crossing Udaipur and they are going to the State of Uttar Pradesh in a Marshall Jeep bearing registration No.UP-54/S-5044 carrying the contraband article Ganja pursuant to which Mukhbir panchnama was prepared by K.V. Singh (PW-2) vide Ex.P-4 and panchnama was also prepared vide Ex.P-5 for non-issuance of warrant under Section 42(2) of the NDPS Act. Notice of summons was issued to witnesses Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) and thereafter, information was sent to the Additional Superintendent of Police, Ambikapur vide Ex.P-7 regarding action taken on the secret information. Personal search of police staff was conducted vide Ex.P8 and personal search of witnesses Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) was conducted vide Ex.P-14 in presence of the appellants. Marshall Jeep No.UP-54/S-5044 was intercepted and persons/appellants sitting inside the vehicle were informed about their right to be searched before the Gazetted Officer or the Magistrate under Section 50 of the NDPS Act by joint notice Ex.P-13 to which they have consented to be searched by K.V. Singh (PW-2), whereas the sole woman accused/appellant has consented for search through woman police officer. Accordingly, on 12-4-2015 at 11.10 a.m., vide Ex.P-15, Marshall Jeep was searched by K.V. Singh (PW-2) - investigating officer, near the said place of incident in presence of the appellants herein and 55 packets of Ganja were seized from a box kept below the back seat of the Jeep and from an iron box built in the back door of the Jeep in presence of Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8). Thereafter, not