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`2008(1) JLJ 321
Smt. S.R. Waghmare, J.
Sukhlal v. State of M.P.
Criminal Appeal No. 897 of 2005 (Indore) : against the judgment of Sessions Judge, Mandleshwar, passed in Sessions Trial No.4 of 2003;
Decided on 24.10.2007.
The main question pressed in the appeal that arises for consideration is whether the contraband was seized from the conscious possession of the accused. [Para 11
Held: Section 20(b) makes possession of contraband articles an offence. In order to make the possession illicit, there must be conscious possession.
"The word ‘conscious‘ means awareness about a particular fact. It is a state of mind which is deliberate or intended. 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. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of section 54 where also presumption is available to be drawn from possession of illicit articles."
In the instant case, the accused has also not denied the house belonged to him whereas the prosecution has fully established that the house belonged to Sukhlal vide evidence of Mishrilal (PW 4) and entered in the revenue records and hence there is no alternative but to draw the legitimate inference that the contraband was in the conscious possession of accused Sukhlal. The statutory presumption as pointed out by the learned counsel for the State is available to the prosecution.
In the instant case, the investigation was completed from beginning to end in accordance with law. There is clear cogent evidence regarding exclusive possession of the contraband by the accused. All the provisions of law have-been complied with then conviction is proper in the present case. 2001 (1) EFR 171, 2003 CrLJ 165, 2002 CrLJ 2522, AIR 2003 SC 3184, 2001(2) EFR 212, 2008(1) JLJ 142, 2003 CrLJ 165, 2001(2) EFR 6, 2001(1) EFR 326 and 2002 CrLJ 2522 distinguished. 2005 CrLJ 3228 and 1988 CrLJ 17 followed. [Paras 12, 13, 15 & 16
Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e] 1985 && /kkjk 8@20] 35] 54 rFkk 55 && edku vuU; :i ls vihykFkhZ dk && fofuf"k) oLrq xk¡tk edku ls cjken && og vihykFkhZ ds lcks/k dCts esa Fkk && og Bhd&gh nafMr fd;k x;k gSA vihy esa vkxzg fd;k x;k] fopkj.k ds fy, mn~Hkwr eq[; iz‘u ;g gS fd D;k fofuf"k) oLrq vfHk;qDr ds lcks/k dCts ls cjken dh xbZ FkhA ¼iSjk 11 vfHkfu/kkZfjr % /kkjk 20¼[k½ }kjk izfrf"k) oLrq dk dCtk vijk/k cuk;k x;k gSA dCts dks voS/k cukus ds fy,] lcks/k dCtk gksuk pkfg,A ^^‘‘kCn ^^lcks/k** dk vFkZ fdlh fof‘k‘V rF; dk Kku gSA ;g eu dh og voLFkk gS tks lqfopkfjr vFkok vk‘kf;r gSA ,d ckj dCtk LFkkfir gks tk, rc ml O;fDr dks tks nkok djrk gS fd og lcks/k dCtk ugha Fkk] ,slk LFkkfir djuk gksrk gS D;ksafd og mlds dCts esa dSls vk;k ;g mldh fo‘ks"k tkudkjh esa gksrk gSA vf/kfu;e dh /kkjk 35 eas fof/k ds v/khu miyC/k mi/kkj.kk ds dkj.k bl vofLFkfr dks dkuwuh ekU;rk izkIr gSA /kkjk 54 esa vofLFkfr le:i gS] ogk¡ Hkh voS/k oLrqvksa ds dCts ls mi/kkj.kk dh tk ldrh gSA** bl ekeys esa] vfHk;qDr us Hkh izR;k[;ku ugha fd;k gS fd edku mldk Fkk tcfd vfHk;kstu }kjk feJhyky ¼v lk 4½ ds lk{; }kjk iw.kZr% LFkkfir gS fd edku lq[kyky dk Fkk rFkk jktLo vfHkys[k esa izfo"V Fkk rFkk blfy, ;g oS/k fu"d"kZ fudkyus ds flok; dksbZ vuqdYi ugha gS fd fofuf"k) oLrq lq[kyky ds lqcks/k dCts esa FkhA jkT; ds fo}ku dkmUlsy }kjk ;Fkk bafxr dkuwuh mi/kkj.kk vfHk;kstui{k dks miyC/k gSA bl ekeys eas] vUos"k.k izkjaHk ls var rd fof/k ds vuqlkj iw.kZ fd;k x;k FkkA fofuf"k) oLrq vfHk;qDr ds vuU; dCts esa gksus ds laca/k esa Li"V rdZiw.kZ lk{; gSA fof/k ds lHkh mica/kksa dk vuqikyu fd;k x;k gS blfy, bl ekeys esa nks"kflf) leqfpr gSA 2001¼1½ bZ ,Q vkj 171] 2003 fØ ,y ts 165] 2002 fØ ,y ts 2522] , vkb vkj 2003 ,l lh 3184] 2001¼2½ b ,Q vkj 212] 2008¼1½ ts ,y ts 142] 2003 fØ ,y ts 165] 2001¼2½ b ,Q vkj 6] 2001¼1½ b ,Q vkj 326 rFkk 2002 fØ ,y ts 2522 izHksfnrA 2005 fØ ,y ts 3228 rFkk 1988 fØ ,y ts 17 vuqlfjrA ¼iSjk 12] 13] 15 ,oa 16
1. Being aggrieved by judgment dated 29.7.2005 passed by the Sessions Judge, Mandleshwar in ST No.04/2003 convicting the appellant Sukhlal under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act" for brevity) and sentencing him to seven years rigorous imprisonment and Rs.50,000/- as fine and in default of payment of fine, additional simple imprisonment for one year, the accused-appellant has filed this appeal under section 374 of the CrPC.
2. Brief facts of the prosecution in a nutshell are that Station House Officer Shri Mandleshwar (PW 10) on receipt of information from the informant on 27.12.2002 along with the task force searched the house of accused Sukhlal and found a white bag of fertilizer containing illegal contraband cannabis (ganja) weighing 4 kg. and 200 grams for which accused Sukhlal could not give any satisfactory explanation. The contraband was seized in front of the Panch witnesses, the accused-appellant arrested and offence registered and after completion of investigation, the matter was sent to the committal Court for trial. The accused-appellant abjured his guilt and took up the plea of maladroit implication and also stated that the cannabis was not actually recovered from his house but from the road in front of the house and in his defence, he examined one Gangaram (DW 1) as defence witness.
3. The trial Court, on considering the evidence and witnesses led by the prosecution as well as that of the defence, however, came to the conclusion that the accused-appellant was guilty as charged, convicted and sentenced him as herein above stated. Hence, this appeal.
4. Besides, usual objections regarding procedural safeguards not having been followed, learned counsel for the appellant has mainly filed this appeal on the ground that the accused was not in the house at the time of recovery of contraband and it could not be said that the cannabis was recovered from the conscious possession of the accused and therefore, it was a clear case of the accused-appellant having been falsely implicated.
5. He further urged that the prosecution had also failed to prove its case since Sabalsingh, the Sarpanch (PW5) and (PW6) Naniya have been declared hostile as they did not support the prosecution. That the prosecution had also miserably failed to prove the spot of recovery since the spot map EX.P-9 was prepared by the Investigating Officer (PW9) Shri R.C. Jat and had not been prepared by the Patwari nor was the register produced for its verification. The prosecution has simply rested its case on the testimony of (PW 11) Dr. N.S. Parmar, (PW8) Parasram, (PW9) R.C. Jat, (PW 10) Radheyshyam Mandloi and (PW 11) Ramsingh Meda, who were all officers of police force and being prejudiced the counsel submitted their testimony ought not to have been relied on by the trial Court.
6. Learned counsel for the appellant submitted that when the contraband was recovered from the premises of the accused-appellant and there was no evidence to the effect that he was in possession of those premises and also regarding to the fact that he had brought the contraband or was dealing in it or that he had handled it or was in any way concerned with it, then accused is entitled to be acquitted.
(1) Relying on Mohan Parida v. State [EFR 2001(1) 171], learned counsel stated that non-examination of Executive Magistrate, Revenue Inspector and other independent witnesses to the seizure is held that it would be quite unsafe to place reliance on inconsistent and discrepant statements of prosecution and that the accused-appellant was entitled to acquittal. Moreover, seized spot, according to the learned counsel had not been identified as the accused-appellant had denied that the seized ganja was recovered from his house and has been simply supported by Dr. N.S. Parmar (PW 1), who categorically stated that potali (bag) was received from the road in front of the house of the accused-appellant and the spot m
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