Possession of contraband leads to rebuttable presumption of guilt under sections 35 and 54 of the N.D.P.S. Act, which shifted the burden to the accused to prove lack of culpable mental state, a burden not satisfactorily met.

JUDGMENT :

S.K. SAHOO, J.

The appellant Anil Benia faced trial in the Court of learned Special Judge, Rayagada in C.T. Case No.119 of 2013 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) on the accusation that on 21.08.2013 at about 2.00 p.m. at Muniguda Railway station, he along with two others were found in possession of five airbags containing flowering and fruiting tops of cannabis plant (ganja) of commercial quantity weighing 91 kgs. 350 grams in an auto rickshaw bearing registration no.OR-07J-6591 in the process of transporting the same to Titilagarh without having any authority or licence to possess it.

The learned trial Court vide impugned judgment and order dated 12.12.2016 found the appellant guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo further rigorous imprisonment for a period of one year.

2. The prosecution case, in short, is that on 21.08.2013 P.W.9 Ganapati Behera, S.I. of Police, Rayagada G.R.P.S., in absence of the IIC, was in charge of the said police station. On that day at about 5.00 a.m., he along with other G.R.P.S. personnel were performing patrolling duty near Muniguda Railway station area and at about 2.00 p.m., they found one auto rickshaw bearing registration No.OR-07J-6591 was coming in a high speed in the side of Muniguda Railway station. When they stopped the auto rickshaw, the driver of the auto rickshaw fled away, leaving the auto rickshaw. P.W.9 and other police staff found acute smell of ganja was coming out of the vehicle loaded with airbags and they noticed two other persons were sitting inside the auto rickshaw and five airbags were loaded therein. Thereafter, P.W.9 called two independent witnesses, namely, Rasmikanta Behera (P.W.2) and Sansar Luhar (P.W.3) who came near the auto rickshaw and also found smell of ganja emitting from it. P.W.9 interrogated the two persons found present in the auto rickshaw who confessed that the airbags contained contraband ganja which they were taking to Titilagarh for disposal. P.W.9 asked both the accused persons about their names, who disclosed their names as Anil Benia (appellant) and Prafulla Lima. He further asked them whether they wanted to be searched in presence of a Magistrate or by him (P.W.9), to which both the accused persons gave their written option that they wanted to be searched in presence of a Magistrate. From the spot itself, P.W.9 intimated to Sub-divisional Magistrate, Gunupur over phone for deputation of one Executive Magistrate for the purpose of remaining present at the time of search and seizure. P.W.9 took steps to guard the auto rickshaw as well as two culprits till arrival of the Executive Magistrate. The Tahasildar, Muniguda, namely, Tapan Kumar Satapathy (P.W.7) was deputed by the Sub-divisional Magistrate, Gunupur and he arrived at the spot at 4.00 p.m. P.W.7 gave his identity to the accused persons and after giving written option to the accused persons, in his presence, the airbags were brought down and when those were opened, flowering and fruiting tops of the cannabis plant packed in polythene packets were found inside the airbags. The auto rickshaw so also the airbags were seized under seizure list Ext.3/2. On weighment, the five airbags seized were found containing 19 kgs. 660 grams, 20 kgs. 020 grams, 17 kgs. 980 grams, 18 kgs. 080 grams and 15 kgs. 610 grams of ganja and as such, the total became 91 kgs. 350 grams. P.W.5 collected samples of 25 grams in duplicate