The main legal point established in the judgment is the requirement of conscious possession for establishing the offence under Section 20 of the NDPS Act.

SANGITA DHINGRA SEHGAL, J.

1. The present appeal has been instituted under Section 374(2) of the Code of Criminal Procedure against the impugned judgment dated 24.07.2010 and order on sentence dated 31.07.2010 whereby the appellant has been convicted for the offence punishable under Section 20(c) of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as ‘NDPS’) and sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs. 1 Lac for the said offence, in default of payment of fine further undergo rigorous imprisonment for a period of one year.

2. The case of the prosecution as observed by the Special Judge, NDPS is that:

“(a) On 11.08.2009 HC Satyender and Ct. Amit were patrolling in the area and at about 05:05 am while patrolling when they reached at Vikas Marg near Bus Stand Delhi Sachivalaya, they saw two boys, identified as the accused and the co-offender/juvenile, sitting on two separate big plastic bags while one third boy was standing nearby. On suspicion the boys were asked to disclose the contents of the big bags and they informed the policemen that these bags contained some flowers used for preparation of medicines. The policemen looked at the bags closely and from the smell they suspected that the bags contained ‘Ganja’. Thus at about 05:15 am HC Satyender Kumar sent the information to the duty officer of PS I. P. Estate and requested him to send some police official. During this time the boy who was standing, managed to slip away from the spot.

(b) After sometime ASI Manbir Singh reached at the spot alongwith Ct. Surender and was apprised about the circumstances by HC Satyender. ASI Manbir Singh requested 5-6 passersby to join the proceedings but none agreed and thereafter he gave separate Notices under Section 50 of the NDPS Act to the accused and the juvenile and told them that he has received information that heavy quantity of ‘Ganja’ has been found in their possession and there was likelihood of more such substance in their possession for which their search was required. ASI Manbir Singh also informed them that it was their legal right and if they desired their search could be conducted in the presence of a Gazetted Officer or a Magistrate. Accused and the juvenile did not want to avail this offer, they were searched and no drug or narcotic substance was recovered from their person. The two plastic bags recovered from their possession were checked and each bag was found containing 08 packets of ‘Ganja’ in vegetative form, wrapped in brown paper and plastic panni. Total weight of ‘Ganja’ in the 08 packets recovered from the bag in possession of accused Vedio Prasad Yadav was found to be 53 kilograms and total weight of ‘Ganja’ in the 08 packets recovered from the bag in possession of the juvenile/co-offender was found to be 52 Kilograms. 01 Kilogram ‘Ganja’ was taken out as sample from each bags and made into separate pulandas. The remaining ‘Ganja’ was kept as it is in the respective bags. The red panni sheets, dark brown papers along with jute cord (sutli), which were used to make packets of ‘Ganja’ were kept in a separate yellow colored plastic bag. The bag containing ‘Ganja’, recovered from the possession of accused Vedio Prasad Yadav was given Serial No. A and corresponding sample pulanda was given Serial No. A-1. ‘Ganja’ bag recovered from the possession of juvenile was given Serial No. B and corresponding sample pulanda was given Serial No. B-1. The plastic bag containing panni, brown paper and sutli was given Mark C. FSL form was filled at the spot and all the pulandas were sealed with the seal of ‘MS’. The same seal was also affixed at form FSL and seal after use was handed over to HC Satyender…”

3. To bring home the guilt of the appellant, the prosecution in all examined 10 witnesses. Statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure wherein he denied allegations of possessing a bag or recovery of any ar