IMPORTANT POINT
IMPORTANT POINT
Possession of narcotics under the NDPS Act requires conscious possession, and the burden of proof lies with the accused to demonstrate otherwise.

JUDGMENT:

This Criminal Appeal has been preferred by accused No.1 in S.C.No.9 of 2017 on the file of the learned Special Sessions Judge for Trial of Cases under Narcotic Drugs and Psychotropic Substances Act-cum-I Additional Sessions Judge, Khammam against the judgment of conviction dated 17.08.2018 where under the Court below found the appellant – accused No.1 guilty for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (for short ‘the Act’) and accordingly convicted him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for a period of two years.

2. The brief facts of the case are that on 26.03.2017, at 07:00 a.m., one While Bolero car without a license plate was going towards Paloncha from Badrachalam Road at high speed. The Forest Section Officer, Paloncha and his team stopped the car and found four people inside and on enquiry, they revealed that they were from Odisha State. Further, the Police discovered a bundle of packed ganja inside the car. It is alleged that total 208 kgs worth Rs.12,48,000/- was seized from both the accused. Police accordingly, registered Crime No.141 of 2017 against both the accused and took up investigation and after a full-fledged investigation, they have filed the charge sheet.

3. In support of their case, prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P16 and M.Os.1 to 5 were marked. On behalf of accused, no oral evidence was adduced, however, Ex.B1 was marked.

4. The trial Court, after full-fledged trial and on hearing both sides, found both the accused guilty for the offence under Section 20(b)(ii)(C) of the Act and accordingly, convicted them.

5. The trial Court noted the testimony of the prosecution witnesses is coherent with regard to the commission of offence, carrying out the panchanama and seizing of ganja from accused Nos.1 and 2. According to the evidence, the accused are in possession of a Bolero Vehicle and 104 packets of ganja, each weighing 2 kgs. The trial Court opposed the submissions of the learned counsel for the accused with regard to the testimony of the interested witnesses and inconsistencies in the testimony of the prosecution witnesses, citing the reliability and consistency of the evidence.

6. Heard Sri P. Susheel Kumar, learned counsel appearing on behalf of the appellant and Sri S. Ganesh, learned Assistant Public Prosecutor appearing on behalf of the respondent – State.

7. Learned counsel for the appellant submitted that the learned Sessions Judge failed to see the seizure column in FIR is empty which establishes that nothing was seized. He further submitted that no independent witnesses were examined and sample has not been drawn from each packet which discloses that prosecution has not followed the procedure while seizing the contraband and conducting investigation. He further submitted that the appellant is the driver of the vehicle and he is no way concerned with the offences as alleged and that the trial Court without considering the same imposed the sentence, which is exorbitant. Therefore, he prayed the Court to set aside the judgment of conviction against the appellant.

8. On the contrary, learned Assistant Public Prosecutor submitted that the contraband seized is commercial quantity and the sentence imposed against the appellant is commensurate to the quantity seized. He further submitted that even if the appellant is the driver of the vehicle, he is also liable for the punishment. Therefore, the trial Court has rightly passed the order and the judgment under Appeal needs no interference.

9. In the light of the submissions made by both the learned counsel and a perusal of the material available on record, it appears that the evidence of P.W.8, who is the Circle Inspector stated that on 26.03.2017 received FIR and sent the requisition to P.W.6-Tahsildar to be present at the Forest Check Post, Paloncha. Since the accus