The court upheld the conviction under Section 20(b)(ii)(C) of the NDPS Act for possession of ganja, clarifying the applicability of Sections 42 and 43, and addressing the burden of proof regarding possession.

JUDGMENT :

This appeal is at the instance of accused Nos.2 and 3 in SC (NDPS) No.18 of 2013 on the file of Special Judge for NDPS Act cases, Thodupuzha, impugning the judgment dated 10.08.2015, by which the appellants (A2 & A3) were convicted and sentenced under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as ‘the NDPS Act’), and in addition the 2nd appellant (A3) was convicted and sentenced under Section 25 of the NDPS Act also.

2. The prosecution case is that, on 17.05.2011, at 8.30 p.m, accused Nos.1 to 3 were found transporting illegally 267 kilograms of ganja, in TN-51-8069 lorry owned by A3, in a secret chamber behind the driver’s cabin. PW1-the Excise Inspector and party attached to Excise Check Post, Kumily, detected the offence while conducting vehicle checking duty at the check post. During investigation, involvement of A4 to A8 also in the crime was made out, and so, complaint was filed by the Assistant Excise Commissioner, Idukki, against all the eight accused, under Sections 20(b)(ii)(C), 25, 27A and 29 of the NDPS Act.

3. A1 absconded after getting bail, and so his case was split up.

4. A2 to A8 appeared before the trial court, and charge was framed against them under Sections 20(b)(ii)(C), 25, 27A and 29 of the NDPS Act, to which, they pleaded not guilty and claimed to be tried.

5. Thereupon prosecution examined PWs 1 to 20, marked Exts.P1 to P38 and identified M.Os 1 to 167, to prove its case.

6. CW1, an Advocate Commissioner was also examined and Ext.C1 and C1(a) series were marked through him.

7. On closure of evidence of the complainant, A2 to A8 were questioned under Section 313(1)(b) of Cr.P.C, and they denied all the incriminating circumstances brought on record. As no grounds were made out to acquit the accused under Section 232 of Cr.P.C, they were called upon to adduce defence evidence if any, but no evidence was adduced from their side.

8. On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court found A4 to A8 not guilty of the offences alleged against them, and so they were acquitted under Section 235(1) of Cr.P.C. But, the trial court found A2 and A3 guilty under Section 20(b)(ii)(C) of the NDPS Act, and in addition A3 was found guilty under Section 25 of the NDPS Act also. Each of them were convicted and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.1 lakh under Section 20(b)(ii)(C) of the NDPS Act with a default sentence of rigorous imprisonment for one year each. In addition, A3 was convicted and sentenced under Section 25 of the NDPS Act, to undergo rigorous imprisonment for ten years and fine of Rs.1 lakh with a default sentence of rigorous imprisonment for one year. A3 could suffer the substantive sentences concurrently, and set off was allowed to both, for the period undergone in custody during trial.

9. Aggrieved by the conviction and sentence, A2 and A3 preferred this appeal, disputing the legality and propriety of the judgment.

10. Heard learned counsel for the appellants and learned Public Prosecutor.

11. The grounds urged by the appellants for assailing the judgment of conviction and sentence are manifold. The first ground alleged is, non-compliance of Section 42 of the NDPS Act which, according to them, is sufficient to vitiate the trial. Learned counsel for the appellants would contend that, since PW1 conducted search in a private conveyance after sunset, he would have obtained search warrant for conducting the search, especially when he had reasons to believe, that, contraband was concealed in the vehicle. According to him, even if the recovery was a chance recovery, as soon as PW1 got suspicion as to the concealment of contraband in the vehicle, at least from that point onwards, he ought to have complied with the mandate of Section 42 of the NDPS Act.

12. Learned counsel for the appellants is relying on the decisions Karnail Singh v. State of Haryana [(2009) 8 SCC 539