IMPORTANT POINT
The main legal point established in the judgment is the requirement of 'conscious possession' and the significance of animus or intent in establishing possession of contraband under the NDPS Act.

JUDGMENT :

Sanjay Kumar Jaiswal, J.

1. This criminal appeal filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) is directed against the impugned judgment of conviction and order of sentence dated 05.01.2006 passed by the Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985, Durg, Chhattisgarh in NDPS Special Case No.06 of 2005, whereby the appellant has been convicted for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”) and sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, additional rigorous imprisonment for 3 years.

2. The allegation against the appellant is that, on 06.02.2005, at about 2:00 PM, at village Mohgaon within the ambit of Police Station Saja, appellant was illegally possessing 181 Kgs. of Ganja in commercial quantity without valid license, in his garden.

3. The case of the prosecution, in brief, is that, on 06.02.2005, S.K. Dubey (PW-13), In-charge of Saja Police Station, District Durg, received an information from an informer that appellant was possessing a large quantity of Ganja in his garden. Based on the said information, Roznamchasanha was registered vide Ex.P/9A. Two witnesses namely Harishchandra (PW-3) and Kishan (PW-4) were summoned through Constable Suresh Kumar (PW-12) and informer panchnama was prepared vide Ex.P/4. Information was sent to SDO (P) Saja, District Durg vide Ex.P/12. Then, the Staff and witnesses left for village Mohgaon, where appellant was present and after obtaining consent to search upon his garden, consent panchnama was prepared vide Ex.P/13. The police staff and independent witnesses were searched by the appellant, for which Police search panchnama (Ex.P/5) was prepared. Upon search, Ganja was found in 6 sacks in a pit as well as in plastic water tank buried in the ground and after identification, psychotropic substance identification panchnama was prepared vide Ex.P/6. Weight panchnama was prepared vide Ex.P/3. Sample packets of 50-50 grams were prepared, sealed and seizure memo was prepared vide Ex.P/7. Dehati Nalishi was recorded vide Ex.P/14. After coming back to Police Station, Roznamchasanha was prepared vide Ex.P/10A. The seized articles were deposited in goods warehouse and the entry was made in seized goods register vide Ex.P/11A. First Information Report was registered vide Ex.P/16. The appellant was arrested vide Ex.P/15, information of which was given to his family members vide Ex.P/17. Information about the entire proceedings was sent to SDO (P) Saja, District Durg vide Ex.P/8A. Seized substance was sent to State Forensic Science Laboratory, Raipur for its chemical examination vide Ex.P/18. According to FSL report (Ex.P/19), seized substance was found to be Ganja. After usual and due investigation, the appellant was charge- sheeted for offence under Section 20(b)(ii)(C) of the NDPS Act.

4. The prosecution, in order to bring home the offence, has examined as many as 15 witnesses and exhibited 21 documents. Statement of the appellant was recorded under Section 313 of Cr.P.C., in which, he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been exhibited.

5. The trial Court after considering ocular, oral and documentary evidence on record, proceeded to convict and sentence the appellant in the manner mentioned in the opening paragraph of this judgment, against which instant appeal has been preferred holding that appellant was found in exclusive/conscious possession of 181 Kgs. of Ganja and provisions contained in the NDPS Act have been religiously and consciously complied with.

6. Learned counsel for the appellant submits that independent witnesses