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2017 Supreme(Del) 2990
IN THE HIGH COURT OF DELHI AT NEW DELHI
S.P. GARG, J.
Lal Mohamad – Appellant
Versus
The State (Govt. of NCT) of Delhi – Respondent
CRL.A.1086, 991 of 2016 & Crl.M.B.2050, 2266 of 2016
Decided On : 22-08-2017
For the Appellant :Mr. Jivesh Tiwari, Advocate.
For the Respondent:Mr. Amish Aggarwal, Advocate for Mr. Satish Aggarwala, Advocate.
The main legal point established is the application of statutory presumptions of conscious possession under the NDPS Act and the burden on the accused to rebut such presumptions when physical possession of contraband is established.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 20(b)(ii)(C) - Sections 23, 25 & 29 of NDPS Act - Summary of Acts and Sections: The court discussed the prosecution's evidence, the accused's defense, and the legal provisions of Sections 35 and 54 of the NDPS Act, which raise a presumption of conscious possession when physical possession of contraband is established. The court emphasized the accused's failure to rebut the presumption and affirmed the conviction.
Fact of the Case:
The appellants were convicted for possessing narcotic drugs based on a raid conducted by DRI officials, where a significant quantity of contraband was found concealed in a vehicle. The appellants denied involvement and claimed false implication.
Finding of the Court:
The court found the prosecution's evidence, including the raid details and the appellants' admissions, to be credible. It rejected the appellants' defense and upheld the conviction based on the presumption of conscious possession under the NDPS Act.
Issues: The key issues were the appellants' knowledge and possession of the contraband, the credibility of the raiding team's testimony, and the applicability of statutory presumptions under the NDPS Act.
Ratio Decidendi: The court relied on the statutory presumptions of conscious possession under Sections 35 and 54 of the NDPS Act, emphasizing the appellants' failure to rebut the presumption despite the prosecution establishing physical possession of the contraband.
Final Decision: The court affirmed the appellants' conviction under Section 20(b)(ii)(C) of the NDPS Act and modified the sentences, considering the appellants' medical condition and previous conviction.
S.P.GARG, J.
1. Aggrieved by a judgment dated 04.08.2016 of learned Addl. Sessions Judge in Sessions Case No.63A/08 whereby appellants – Lal Mohamad (A-1) and Anil Kothari Jain (A-2) were held guilty for committing offence under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’); they have filed the instant appeals. By an order dated 10.08.2016, A-1 was sentenced to undergo RI for ten years with fine Rs.1 lac; A-2 was sentenced to undergo RI for fifteen years with fine Rs.3 lacs.
2. Briefly stated, the facts of the case are that on 24.04.2008 at about 07.00 p.m. Madan Singh, Intelligence Officer, Directorate of Revenue Intelligence (in short ‘DRI’) received a secret information that one off white colour Mahindra Bolero bearing registration No. BR 04C 7286 would arrive near Gurudwara, Siraspur, GT Karnal Road, New Delhi, at around 10.40 p.m. containing certain narcotic drugs and a clean shaven man in his sixties would come to collect the delivery of the contraband from the vehicle. The information was placed before the Deputy Director, DRI (HQ) who directed Sh. Gurjeet Singh, IO, to take necessary action. Pursuant to that, a raiding team was constituted; two public witnesses – Jai Singh and Ganga Ram were associated. The raiding team reached the spot at around 09.30 p.m. and kept discreet watch on the vehicles. At about 10.40 p.m. an off white colour Mahindra Bolero was seen coming from Mukraba Chowk side and it stopped in front of Gurudwara adjacent to bus stop; it was being driven by A-1. Soon thereafter, an old clean shaven man (A-2) accompanied by two young persons approached the vehicle and sat in it. The moment vehicle started moving, DRI officials intercepted it. They introduced themselves to the occupants of the vehicle. Mohan Lal Jat @ Manmohan and Ramesh Kumar were the two individuals who had accompanied A-2. Gurjit Singh, IO informed the occupants of the vehicle about the secret information; they were also shown the search authorization issued under Section 41 NDPS Act. All the four occupants denied if any narcotic drug was concealed in the vehicle in question.
3. Since the place where the vehicle was intercepted was not suitable, the occupants were brought at DRI office, D-Block, IP Estate. Notices under Section 50 NDPS Act were served upon the appellants. On thorough examination of the vehicle, a false cavity was found created in its floor which could be accessed through a removable metal plate fixed below the rear seat of the vehicle secured to the floor with nuts and bolts. 151 packets covered with brown coloured masking tape were recovered; on testing, it were found to be ‘Hashish’. Necessary proceedings were conducted. Total weight of the contraband was 153.378 kg; its net weight was 151.340 kg.; 10 samples were drawn; a panchnama was prepared. During investigation, statements under Section 67 NDPS Act were recorded of the appellants and that of Mohan Lal Jat @ Manmohan and Ramesh Kumar. The appellants were arrested and medically examined.
4. In the follow-up action, A-2’s residential premises were searched at Arihant Farms, Khera Kalan and a car make Opel Astra No. DL 3CJ 4259 was recovered which was to be used to transport the contraband. Statements of the witnesses conversant with the facts were recorded during investigation. The exhibits were sent for examination to Central Revenue Control Laboratory (CRCL), New Delhi. Call Detail Records of mobile No. 09701806348 and 09847940219 were collected. It was also found that A-2 was a previous convict in Sessions Case No.363/98 in RC4/E/98/Mum. He did not surrender in the Court on expiry of parole period. Upon completion of investigation, a complaint was filed by Gurjit Singh, IO against the appellants in the Court for commission of offences punishable under Sections 23, 25 & 29 of NDPS Act. By an order dated 18.12.2009, A-1 & A-2 were charged under Section 20(b)(ii)(C) of NDPS Act and also under Section 29 rea
