Point of Law: Possession of contraband - Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge

JUDGMENT :

M. Zothankhuma, J.

Heard Mr. Vanlalnghaka, learned Amicus Curiae. Also heard Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor.

2. This is an appeal against the Judgment & Order dated 07.11.2019 passed by the Special Court, ND&PS Act, Champhai in Sessions Case No. 106/2018 arising out of Criminal Trial No. 657/2018, by which the appellant has been convicted under Section 20(b)(ii)(C) of the ND&PS Act, 1985 and sentenced him to undergo rigorous imprisonment for 12 years with a fine of Rs. 1 lakh, in default rigorous imprisonment for 6 (six) months.

3. The prosecution story of the case in brief is that S.I Jerry L.D Poonte, in-charge of DSB, Champhai Police received information that contraband was going to be transported in a Maxi Cab Sumo. On the basis of the information which was taken down in writing, Mr. Jerry L.D Poonte, S.I and his party conducted a search of Maxi Cab Sumo bearing registration No. MZ-01-J-9673 at Zote village, Champhai and thereupon seized 2 (two) white nylon bags and 1 (one) green hold-all. The same contained seeds and flowering tops suspected to be ganja weighing a total of 51.6 kilograms. Thereafter, Champhai P.S Case No. 9/2018 dated 31.01.2018 was registered under Section 20(b)(ii)(C) of ND&PS Act, 1985. The accused/appellant and the seized articles were produced before the Magistrate wherein the samples were drawn and inventory of the seized articles made. The sample was sent to the FSL for chemical analysis.

4. After the I.O conducted the investigation and the FSL report confirmed that the seized articles were ganja, charge-sheet was filed.

5. Charge was framed under Section 20(b)(ii)(C) of the ND&PS Act, 1985, to which the appellant pleaded not guilty. Thereafter, 3 (three) prosecution witnesses and 7 (seven) defence witnesses were examined by the learned Trial Court. The examination of the appellant was also taken under Section 313 Cr.P.C on 01.10.2019. The learned Trial Court thereafter came to a finding that the appellant had knowingly carried the bags/hold-all containing 51.6 kilograms of ganja and thus convicted the appellant under Section 20(b)(ii)(C) of the ND&PS Act and sentenced him to undergo rigorous imprisonment for a period of 12 (twelve) years and to pay a fine of Rs. 1,00,000/-, in default rigorous imprisonment for 6 (six) months.

6. The learned Amicus Curiae submits that the evidence of DW-7 and the statement given by the appellant under Section 313 Cr.P.C would go to show that the seized ganja did not belong to the appellant. The appellant was carrying the seized articles for his friend, believing the same to be clothes. He accordingly submits that as the appellant was not aware that he was carrying ganja, the appellant should not have been convicted for a crime which was not of his making.

7. Mr. Vanlalnghaka, the learned Amicus Curiae also makes an alternative prayer for showing leniency upon the appellant, as he is the sole bread earner of his family, having a wife and children, by reducing the sentence imposed upon the appellant.

8. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, on the other hand, submits that there has been no violation of the provisions of the ND&PS Act, 1985 during the time of search and seizure. Further, the appellant had admitted to being in possession of the green hold-all and the two white bags, which contained the seized articles. She accordingly submits that as there has been conscious possession of the seized bags/hold-all, which contained the seized articles, there is nothing to show that appellant was innocent of the charge framed under Section 20(b)(ii)(C) of the ND&PS Act. She also submits that the evidence given by the defence witnesses nowhere states that the appellant was not guilty of the crime. She submits that the evidence given by the defence witness only points to the fact that the appellant was a member of the YMA (an NGO) and was a Church going member of the society. She accordingly prays that the impugned judgment & orde