The judgment establishes the importance of proving conscious possession and the need for corroborative evidence in cases involving confessions made to investigating officers under the NDPS Act.

R.V. Easwar, J. This is an appeal filed by the Narcotics Control Bureau (“NCB”, for short) against the judgment dated 16.8.1997 in sessions case No.22/1995, acquitting the respondent, Ramesh Kumar from the charges made against him under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter shortly referred as “NDPS Act”).

2. The case of the prosecution is that the NCB received secret information on the basis of which surveillance was mounted on room No.116, Hotel Janpath, New Delhi. A search party knocked at the door of the room and the door was opened by accused Ramesh Kumar. Two public witnesses were called as panch witnesses to witness the search. After giving due notice under section 50 of the NDPS Act, a search of the accused and the room was undertaken, which resulted in the seizure of a black polythene bag containing a powdered white substance. The powder was tested with the help of the field testing kit. It showed positive for diacetyl morphine/heroin which is a banned drug under the Act. The search party drew two samples from the drug, each weighing five grams and they were kept in separate small polythene packets and sealed with a paper slip bearing the signature of the panch witnesses as also the signature of the accused and the gazetted officer and sealed by NCB. The balance contraband was packed in a cardboard box and sealed by NCB. All other formalities, such as drawing up of the panchnamawere carried out on the spot. A statement from the accused Ramesh Kumar was recorded by PW5, which was written in the handwriting of the accused himself and running into 10 pages. It may be mentioned here that this statement was retracted by the accused while he was in judicial custody and a copy of the same was sent to the trial court on 14.6.1995.

3. The CRCL reported positive for the banned drug. Thereafter charges were framed against Ramesh Kumar on 21.9.1995 by the trial court for having found to be in illegal and unlawful possession of 500 gms of herein in contravention of section 8 of the NDPS Act and thereby prima facie guilty of the offence under section 21 of the Act.

4. The prosecution examined 11 witnesses. In the statement recorded from the accused under Section 313 of the Cr.P.C., he stated that the room in the hotel was booked in the name of Ajay Karan and not in his name and that the seizure was manipulated and he was brought into the room subsequent to the seizure and falsely implicated in the case. He stated that he was tortured and coerced into giving the statement under section 67 of the Act (Ex.PW 5/A) and that there was no material to connect him with the possession of the banned drug or with the occupation of the room in the hotel.

5. In support of the defence, 3 witnesses were examined. Two of them were the manager and supervisor of Hotel Janpath. The last witness was the owner of house No.C-305, Vikas Puri, New Delhi which was owned by one Pradeep Kumar Soni. This house was searched after the accused made the statement in the hotel. A panchnamain respect of the search of the aforesaid house was prepared and according to the accused nothing incriminating was recovered from the house.

6. The preliminary objection of the accused raised under sections 42, 50 and 57 of the

NDPS Act to the effect that the mandatory provisions of these sections were not satisfied, was rejected by the trial court. It is not necessary to reproduce these objections and the findings of the trial court in any detail since that part of the judgment of the trial court has become final and the accused has not filed any appeal against those findings. The findings of the trial court with regard to the question whether the prosecution has successfully established that the accused was in conscious possession of the banned drug when it was recovered from him are contained in paragraphs 22 onwards of the judgment. The trial court found that though the case of the prosecution was that the room had been booked in the