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High Court Of Madhya Pradesh
S. P. KHARE
MOHAMMAD AKHTAR - Appellant
Versus
STATE OF M.P. - Respondents
CRIMINAL APPEAL 1474 Of 1995
Decided On : 05/14/1999
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 20(B)(II) - POSSESSION OF CHARAS - PRESUMPTION OF CULPABLE MENTAL STATE - BURDEN OF PROOF ON ACCUSED - SECTION 35 - INTERPRETATION AND APPLICATION.
Fact of the Case:
Two appellants were found in possession of 10 kgs of charas during a police check at a checkpoint. They were convicted under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to 10 years of rigorous imprisonment and a fine of Rs. 1,00,000 each.
Finding of the Court:
The court upheld the conviction of the appellants, finding that the prosecution had established the objective facts of physical control and custody of the contraband, and that the appellants had failed to prove beyond a reasonable doubt that they lacked knowledge of the presence of the charas in the car.
Issues: 1. Whether the prosecution had established the appellants' possession of the charas. 2. Whether the appellant Mohammad Ali Naved, who claimed to be a mere passenger in the car, could be held to be in possession of the charas. 3. Whether the prosecution had proved that the samples sent for analysis were taken from the seized commodity and that there was no tampering with the seal.
Ratio Decidendi: 1. The court held that the prosecution had established the appellants' possession of the charas based on the evidence of police officers who conducted the search and seizure, and the seizure memo. The court found no merit in the appellants' contention that the charas was planted or that they were falsely implicated. 2. The court held that the appellant Mohammad Ali Naved, who claimed to be a mere passenger in the car, had failed to prove beyond a reasonable doubt that he lacked knowledge of the presence of the charas in the car. The court relied on Section 35 of the Act, which presumes the existence of a culpable mental state, including knowledge, and places the burden on the accused to prove the absence of such mental state beyond a reasonable doubt. 3. The court found that the prosecution had proved that the samples sent for analysis were taken from the seized commodity and that there was no tampering with the seal. The court relied on the testimony of the police officers and the report of the chemical examiner.
Final Decision: The appeal was dismissed, and the conviction and sentence of the appellants were upheld.
( 1 ) APPELLANTS Mohammad Akhtar and Mohammad Ali Naved have been convicted under S. 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act) and have been sentenced to rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- each. In default of payment of fine, they have been sentenced to rigorous imprisonment for two years each.
( 2 ) IT is not in dispute that Fiat Car B. L. O. 149 was passing through Bijawar check post on 4-10-1992 at 2 a. m. It was intercepted and checked. Appellants Mohammad Akhtar and Mohammad Ali Naved were inside this car. There was a lady and children also in this car. This car was coming from Bihar and it was going to Bombay.
( 3 ) THE prosecution case is that on search of the dickey of this car, a tin box was found. That tin box contained 10 kgs of charas wrapped in a piece of cloth. Charas was seized as per seizure memo Ex. P.-1. There were certain other articles and the registration certificate of the car which were seized. This car is registered in the name of appellant Mohammad Akhtar. Charas was sealed on the spot. A sample of charas was sent to the Forensic Science Laboratory, and it was confirmed that the commodity which was seized from this car was charas.
( 4 ) THE accused pleaded not guilty. Their defence was that they have been falsely implicated and the real culprit has been let off.
( 5 ) THE trial Court on the basis of evidence of S. P. Shukla (P. W. 2), Vishwanath Jadia (P. W. 3) and R. K. Singh (P. W. 4) the Police Inspectors, held that the appellants were in possession of the 10 kgs of Charas. They have been convicted and sentenced as stated at the outset.
( 6 ) IN this appeal, Shri Rajendra Singh, Senior Advocate appearing on behalf of the appellants has raised three points; (a) Appellant Mohammad Ali was only a passenger in this car and he was not in possession of Charas (b) There is no reliable evidence to the effect that the commodity which was seized was properly sealed and kept in the Malkhana and (c) It is not proved that the samples were actually taken from the commodity which is said to have been seized from the appellants and sent to the Forensic Science Laboratory for confirmation that it was charas. These are the three points which arise for determination in the present appeal.
( 7 ) POINT (a) The seizure of the commodity from the dickey of the car of appellant Mohammad Akhtar is not challenged in this appeal. That is established from the evidence of S. P. Shukla (P. W. 2), Vishwanath Jadia (P. W. 3) and R. K. Singh (P. W. 4 ). Though they are police officers, their evidence is trustworthy. That is supported by the seizure memo and the substantial quantity of Charas which has been recovered. There is no possibility of planting of this charas in the dickey of the car. It has been suggested in cross-examination of these witnesses that this charas was seized from some other person but he has been let off and the appellants have been roped in. This suggestion is not supported by any evidentiary material. Durga Prasad (P. W. 1) was an attesting witness to the seizure memo. He has not supported the prosecution case. He has been declared hostile. There was one more panch witness Santosh and he has not been examined. The testimony of the police officers in this case is fully reliable and that is substantiated from recovery of a huge quantity of charas from the dickey of the car. The finding of the trial Court that this charas was found in the tin box in the dickey of the car as per seizure memo Ex. P.-2 is correct.
( 8 ) IT is proved that both the appellants were in the car from which the contraband was recovered. In the normal course it will be presumed that they were in possession of the commodity which was found in the car. It has been argued on behalf of appellant No. 2 Mohammad Ali Naved that he was only a passenger in the car and therefore, the charas cannot be held to be of his possession. There
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