Possession of contraband requires not only knowledge but also actual or constructive control, which was not established in this case due to insufficient evidence linking the accused to the parcel's contents.

JUDGMENT

Vibhu Bakhru, J. The appellants impugn the judgment dated 22.05.2017 passed Learned ASJ, Special Court (Central), NDPS Act, Tis Hazari Courts, whereby the appellants have been convicted for the offence under section 20(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter `NDPS Act'). The appellants also impugn the order dated 26.05.2017, whereby they have been sentenced to rigorous imprisonment for a period of ten years and a fine of Rs.1 lakh each, under section 20(ii)(C) of the NDPS Act. It was directed that in the event of default in payment of fine, appellant would undergo simple imprisonment for six months.

2. The impugned judgment was rendered in connection with a case arising from FIR no. 173/2014 under section 57 of the NDPS Act, registered with PS Hazrat Nizamuddin Railway Station. The case set up by the prosecution is that on the intervening night of 26/27.10.2014, the appellants went to Nizamuddin Railway Station to collect a parcel, which contained illicit substance. The appellants also possessed the Railway Receipt (bill/bilti) for the said parcel. The officials of Railway Protection Force (RPF), who were on patrolling duty, saw the appellants sitting on a parcel and found them to be acting in a suspicious manner. The said persons, on seeing the RPF staff, started moving away from there but were apprehended. A Railway Receipt bearing no. 870279 issued from Bhubaneshwar, pertaining to the said parcel was shown by one of the appellants, namely, Mohd. Ali to the RPF personnel. The same number was also found written on the said parcel. On examination of the parcel in the presence of Sh Ajay Chopra, Head Parcel Clerk, it was found that the same contained fifty kilograms of ganja. The matter was reported to the local police and subsequently, the FIR in question was registered. The case was investigated and a chargesheet was filed under section 21 of the NDPS Act. Both the appellants claimed that they were not guilty and claimed trial.

3. Before the Trial Court, the prosecution examined thirteen witnesses in total. The Trial Court, after evaluating the evidence, found the accused (appellants) guilty of the offence for which they were charged. It held that although there was an eleven-day delay in sending the sample to FSL; the same did not lead to the inference that it was possible to tamper with the sample. The seals affixed by the IO and SHO were found intact by the FSL and this was sufficient proof of the samples were received intact by FSL. The Trial Court further held that on the basis of the deposition of PW6, it could be safely concluded that the case property was not tampered with in the malkhana.

4. The Trial Court further rejected the contention that the police had not joined any independent witnesses at the spot. The court held that PW-4, who is a Parcel Clerk, is a government servant and his presence on the spot could not be doubted as he was posted at the office and was working at the spot at the time of the recovery. Thus, he was held to be a reliable and an independent witness.

5. The Trial Court also rejected the defence that the prosecution had failed to place any material on record, which could establish a link between the appellants or with Mahinder Singh or Krishna Murti (whose names were written on the Railway Receipt). Thus, there was no evidence, which could lead to the i