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Rajasthan High Court
Honble SUNIL KUMAR GARG, J.
Ashok Kumar & Anr. - Appellant
Versus
Union of India - Respondents
S.B. Criminal Appeal No. 708 & 698 of 1999
Decided On : May 22, 2001
Possession, in order to amount to an offence, must be conscious and exclusive. It mst be to the knowledge of the person on whom liability is sought to be fastened. Such a person must have dominion and control over such article and it must be exclusive. (Para 44)
Thus, it can be said that proof of exclusive possession is essential for making a conviction under the NDPS Act when there is a case against the accused that contraband opium was recovered form his possession in his house. (Para 45)
Based on the provided legal document, the key points are as follows:
The case involves the prosecution of accused individuals under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, specifically concerning the recovery and possession of contraband opium (!) (!) .
The prosecution's case is primarily based on the search and seizure conducted from a bus, where opium was recovered from an attache in the possession of one of the accused, Hussain Mohd. The other accused, Ashok Kumar and Jaspal, were traveling in the same bus but from which no contraband was recovered (!) (!) .
The legality of the search and seizure process hinges on compliance with Section 50 of the NDPS Act, which requires that the person to be searched be informed of their right to be searched before a Gazetted Officer or Magistrate. In this case, a joint notice was given to all accused, which the court considered acceptable unless prejudice can be established (!) (!) (!) .
The court emphasized that a joint notice under Section 50 is not necessarily illegal if no prejudice results to the accused. Since the search was conducted with the accused's consent and no prejudice was shown, the joint notice was deemed sufficient (!) (!) .
The evidence regarding the recovery from Hussain Mohd.'s attache was considered credible, with proper procedures followed for the seizure, weighing, and chemical analysis of the opium. The chain of custody and preservation of evidence were found to be intact (!) (!) .
The prosecution proved beyond reasonable doubt that Hussain Mohd. had conscious possession of the contraband opium, as it was recovered from his attache, which he was in possession of at the time of search (!) (!) .
The accused Ashok Kumar and Jaspal, who were traveling in the same bus but from whom no contraband was recovered, could not be convicted solely based on their presence in the vehicle or association with the accused possessing the opium. The evidence did not establish their knowledge or conscious possession of the contraband (!) (!) .
The court highlighted that proof of exclusive possession is essential for conviction under the NDPS Act when contraband is recovered from a specific place or article in the possession of an individual. Mere presence or association does not suffice to establish possession or knowledge (!) (!) .
The appeals filed by Ashok Kumar and Jaspal were allowed, leading to their acquittal, as the evidence was insufficient to prove their possession or knowledge of the contraband (!) .
The appeal filed by Hussain Mohd. was dismissed, confirming his conviction under the NDPS Act for conscious possession of the opium recovered from his attache (!) (!) .
The procedural safeguards, including proper notice under Section 50 and chain of custody, were upheld in this case, reinforcing the importance of adherence to legal requirements for search and seizure operations under the NDPS Act (!) (!) (!) (!) (!) .
Overall, the case underscores that compliance with Section 50 is crucial, but joint notices may be acceptable if no prejudice is caused, and evidence must establish that the accused had knowledge and control over the contraband for conviction.
(2). The facts giving rise to these appeals are as follows:-
PW 14 Kaji Nasim Ahmad, Inspector (Preventive Cell), Central Narcotics Bureau, Chittorgarh filed a complaint against the present accused appellant and accused Rameshwarlal in the court of Special Judge, NDPS Cases, Chittorgarh stating inter- alia that on 26.3.1997 under the Chairmanship of PW 11 Vijay Singh Meena, Superintendent in the office of Dy. Narcotics Commissioner, Kota, a Raiding Party was constituted for the purpose of preventing smuggling of contraband opium etc. and other members of that Raiding Party were PW 12 Narain Singh and PW 13 Parmanand and when this Raiding Party was making checking at Medi Ka Kheda (Bhawanipura) Railway Crossing on Bhilwara Road, a Bus of Rajasthan Roadways bearing No. RJ/14P 4338 came there, where was going Jaipur from Badi Sadri and it was stopped by PW 12 Narain Singh and the driver of the Bus Najir Mohd., PW 3 and Conductor of the Bus Neeraj Gautam, PW 4 were told that passengers of the Bus were to be checked in connection with contraband opium and both of them were made independent witnesses by PW 12 Narain Singh and, thereafter, PW 12 Narain Singh entered the Bus alongwith these two witnesses, namely, PW 3 Najir Mohd. and PW 4 Neeraj Gautam and found passengers, who were sitting on seats no. 1,2 and 3 in suspicious condition and on being asked, they told their names as Ashok Kumar (accused appellant No. 1 in appeal no. 708/99) Hussain Mohd. (accused appellant in appeal No. 698/99) and Jaspal (accused appellant No. 2 in appeal No. 708/99) and these three accused appellants were resident of District Sri Gangangar and they told that they were going to Bhilwara and these three accused appellants alongwith their luggage were asked to come down from the Bus and they were produced before PW 11 Vijay Singh and, thereafter, PW 12 Narain Singh gave notice Ex. P/7 u/Sec. 50 of the NDPS Act to accused appellants informing them whether they wanted to be searched before Magistrate to Gazetted Officer or before Superintendent, who was with the Raiding Party, Namely, PW11 Vijay Singh, who was Gazetted Officer or before himself i.e. PW 12 Narain Singh. All three accused appellants gave their consent that they could be searched by PW 12 Narain Singh. Thereafter, PW 12 Narain Singh asked accused appellant Hussain Mohad. to open the attache of blue colour, which was being carried by him in the Bus and on opening the said attache by him, a plastic bag was found, which was lying beneath the khakhi pent and brown colour shirt and in that bag, light brown colour substance was found and on seeing it, it was assessed that it was nothing, but contraband opium and accused appellant Hussain Mohd. also admitted that it was opium and he further admitted that this contraband opium jointly belonged to them. Thereafter, the said opium alongwith plastic bag was weighed by PW 13 Parmanand and its weight was found to be 1.525 Kgs. and after excluding the weight of plastic bag, the net weight of the opium was found to be 1.500 kgs., out of which, two samples of 25 grms. each were taken and sealed separately on the spot and marked as A/1 and A/2 and rest opium
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