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Biswanath Pratap Singh And Another v. State Of Assam,

Facts
Issues
Pet. Arg.
Res. Arg.
Reasoning
Decision

Arun Dev Choudhury, J.:— Heard Ms. S.K. Nargis, learned counsel appearing for the appellants. We
have also heard Ms. N. Das, learned APP, Assam, appearing for the State.

1. This appeal is directed against the judgment and order dated 12.9.2019 passed by the learned
Sessions Judge, Kamrup (M), in NDPS Case No. 58/2018, finding the appellants guilty of committing
offences under sections 20(b)(ii)(c) and 29 of the NDPS Act, 1985 and sentencing them to undergo RI for
14 years and also to pay fine of Rs. 2,00,000 each, in default to undergo rigorous imprisonment Tor
another 6 months each.

2. The facts of the case, briefly stated, are that on 10.4.2018; one Girindra Nath Haloi, S.I. of Guwahati
GRPS, Assam, had lodged an ejahar before the In-Charge, Guwahati GRPS, informing that on
10.4.2018/at 7.30 a.m., the train checking party, ASI Dinesh Deka, along with staff conducted checking
inside the train No. 12435 DN Rajdhani Express, while it was standing at Platform No. 1, in Guwahati
Railway Station had detected that the Bedroll staff of Coach No. 4 A and Coach No. B3 were carrying
suspected Ganja in bags kept inside the bedroll cabin of the Coach Immediately, the checking party
deboarded the bedroll staff along with the three Bags containing Ganja from the coach and detained

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them with the bags at Platform No. 1. On getting information from the Checking party, O.C., GRPS issued
authority letter under section 41(2) of the NDPS Act, to the informant and the informant visited the place
of occurrence, examined the checking party, detained the bedroll staffs who on being asked, disclosed
their names, to be Ashok Bhagat and Viswanath Pratap Singh. During their bag checking, total five
packets of suspected Ganja weighting 38 kgs wrapped in black polythene were recovered from the two
black coloured bags alleged to be of Ashok Bhagat. Also recovered one alleged ID Card allegedly kept in
one of the bags. VA total of 27 kgs. of suspected Ganja, wrapped in three black polythene bags, were
recovered from a red coloured bag allegedly belonging to Sri Viswanath Pratap Singh and also recovered
one ID Card and two numbers of mobile handset. Accordingly, Guwahati GRPS Case No. 85/2018 was
registered under section 20(c)/29, NDPS Act and the Officer in-Charge of Guwahati GRPS Police Station
took up the matter for investigation and one Sri Mahesh Baishya, Sub-Inspector, Guwahati GRPS was
appointed as Investigating Officer.

3. During the course of investigation, the I.O. had recorded the statements of the witnesses, statement of
the informant, drew sketch map and took custody of the seized Ganja. The original samples of the seized
Ganja was sent to Forensic Science Laboratory for examination. Upon completion of investigation, the
I.O. had laid charge sheet against the two accused under section 20(c)/29 of the NDPS Act.

4. Thereafter, charge under section 20(b)(ii)(c) and under section 29 of the NDPS Act was framed against
the accused-persons and the same was read over and explained to them. However, since the accused
had pleaded not guilty and claimed to be tried, the matter went up for trial.

5. During the course of trial, the prosecution side had examined as many as 6 witnesses, including the IO
and the Deputy Director, Drugs and Narcotic Division, Directorate of Forensic Sciences, Assam, who had
conducted examination of the samples of the suspected Ganja and submitted his Report. After
conclusion of recording of evidence of the prosecution witnesses, the accused were examined under
section 313 of the Cr.PC, wherein, they denied their involvement in the matter and had taken the plea of
false accusation.

6. Upon conclusion of trial, the learned Sessions Judge, Kamrup (Metro), had held that the PW 5, who
examined the samples of the seized ganja, gave positive tests for cannabis (ganja) and the defence
failed to shake his evidence. The PW 1, PW 2 and PW 3 have deposed that during the routine checking,
they first recovered the ganja from the possession of Sri Ashok Bhagat and thereafter, on information
provided by the accused Ashok Bhagat, the PW 1, PW 2 and PW 3 went to Coach B3, recovered 27 kgs.
of ganja from the accused Viswanath Pratap Singh. It was also held that the prosecution witnesses have
identified the bags containing suspected cannabis recovered from the possession of both the accused. It
was held by the learned Sessions Judge that the defence has failed to challenge the deposition of the
PW 4 regarding the fact of seizure of the ID Cards, Aadhaar Card and Mobile Phones from the
possession of the accused-persons and has also failed to put suggestion that the material Exhibits VI and
VII envelops did not contain the IDs, Aadhaar and Mobile Handsets. Therefore, the learned court below
held that the prosecution had succeeded in bringing home the charges under sections 20(b)(ii)(c) and 29
of the NDPS Act beyond all reasonable doubt. Accordingly, the accused were convicted sentenced as
indicated above.

7. By referring to the materials available on record, Ms. S.K. Nargis, learned counsel appearing for the
appellants submits that the prosecution has failed to establish the conscious possession of the suspected

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Cannabis by the appellants, in as much as, there are no evidence on record to show that the two
accused-persons were Bedroll employees and that the bags from which the contraband was recovered
belonged to the accused-persons or that they had control over the Almirahs from which, the bags
containing suspected cannabis were recovered. Such failure on the part of the prosecution, according to
Ms. Nargis would have fatal consequences on the prosecution case. Ms. Nargis, further submits that the
presumption of culpability against the accused under the NDPS Act is rebuttable and the same does not
dispense with the obligation of the prosecution to prove the charge beyond reasonable doubt. According
to her, the learned trial court had convicted her clients on the basis of preponderance of probability and
not beyond reasonable doubt. To buttress her aforesaid argument, Ms. Nargis, has relied upon the
decisions rendered in the case of Gangadha alias Gangadhar Alias Gangaram (S) v. State Of Madhya
Pradesh (S)., (2020) 9 SCC 202 and Karnail Singh v. State Of Haryana ., (2009) 8 SCC 539.

8. The learned counsel for the appellant further submits that though the. 10 did not exhibit ID Cards and,
Aadhaar Card allegedly belonged to the accused-persons and, therefore, there is no evidence in the case
to implicate her clients for committing any offences under section 20(b)(ii)(c) and 29 of the NDPS Act.

9. Ms. N. Das, learned A.P.P., Assam, appearing for the State, on the other hand, has argued that in this
case, the prosecution has succeeded in establishing that the victim was in control of the contraband and
the same has been recovered from their possession. According to Ms. Das, the statements of PW 1, PW
2 and PW 3 clearly establishes that the accused themselves have opened the locked Almirahs with the
keys, which were under their possession. The cannabis concealed in the bags were found inside such
Almirahs. According to learned A.P.P., the Identity Cards of the accused-persons were also found inside
the bags. Therefore, learned A.P.P. submits, it cannot be said that evidence is not sufficient in the case to
implicate the appellants. By referring to sections 35 and 54 of the NDPS Act, the learned A.P.P., further
submits that in a case where the accused is prosecuted for offence committed under sections 20(b)(ii)(c)
and 29 of the NDPS Act, the court is empowered to draw presumption of guilt of the accused. Therefore,
having regard to the facts and circumstances of the case as well as the evidence brought on record, the
learned Sessions Judge has rightly held that the accused were guilty and sentenced them under sections
20(b)(ii)(c) and 29 of the NDPS Act. In such view of the matter, no interference with the impugned
judgment and order dated 12.9.2019 by this court is called for.

10. We have taken note of the submissions advanced by the learned counsel representing for both the
parties and have also carefully gone through the materials available on record.

11. The PW-1 has deposed that when, he along with other staffs of GRPF was in routine train checking,
he had noticed a bedroll employee, i.e., accused No. 1 visibly nervous and the train checking constables
on suspicion asked him what is inside the bedroll almirah. During checking two trolley bags were found
and when it was opened by accused No. 1, the checking party found the suspected 5 packets of ganja
inside both the trolley bags, wrapped in polythene papers. PW 1 further deposed that on interrogation,
accused No. 1 admitted that accused No. 2 is also accompanying him. The accused No. 1 led the
checking party to Coach No. B3, identified the accused No. 2 and three packets of suspected ganja were
recovered from one trolley bag found with the accused No. 2. Thereafter OC, GRPS sent PW 4 with
weighing apparatus. PW 4 brought out the packets of the contraband. Two ID Cards and one Mobile
handset were also recovered. He was the seizure witness of the contraband. This witness had also
exhibited the seizure list Ext.I and Ext.II the seizure list of the contraband.

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During his cross-examination, the PW-1 stated that he had not seized any document to show that the two
accused were in Bedroll duty. PW-1 has also deposed during cross-examination that the respective
almirahs were under lock and key and were opened by the accused-persons but the keys were not
seized.

12. The PW-2 was one of GRP personnels engaged on checking duty on the date of occurrence. He
deposed that after entering into the train along with PW 1 and PW 3, they asked In-charge of the Coach
A4, namely, Ashok Bhagat to open the almirah, who in turn opened the lock and two bags inside the
almirah were found. On being asked the accused No. 1 opened the bag and the suspected ganja was
found. On interrogation, the accused No. 1, disclosed about the accused No. 2, who was in Coach B3.
Then they went to Coach No. B3, searched the almirah, found one bag inside the Almirah, where
suspected ganja were found. They brought down the accused from the train, PW 1 informed the OC,
GRPS. PW 4 was sent to the platform by the OC GRPS. Thereafter PW 4 seized the suspected ganja.
The PW 2 was the seizure witness.

During cross-examination, he stated that they have not examined any In-charge of the accused Nos. 1
and 2. He also stated that he has not seen any ID Cards of the two accused. He denied the suggestion of
the prosecution that nothing was recovered from the possession of the accused.

13. The PW 3 was also a member of the GRPS checking party and is a seizure witness. He deposed that
after entering into the train along with PW 1 and PW 2, they asked In-charge of the Coach A4, namely,
Ashok Bhagat, as to who was the In-charge of the almirah, to which said accused No. 1 told that he was
the In-charge and on being asked, he had opened the almirah, inside which two bags were found. On
asking whether anybody else was with him, the accused No. 1, told about the accused No. 2, who was in
Coach B3. Then they went to Coach No. B3, searched the almirah, found one red bag inside the Almirah,
where suspected ganja were found. As the train was departing, they brought down the accused from the
train. The suspected ganja was seized by the PW 4 before him and put his signature in the seizure list,
i.e., Exts.I and II.

During cross-examination, PW 3 stated that PW 4 did not seize duty allotment document relating to the
accused-persons. They did not examine any In-charge of the two accused-persons nor did they seize the
keys of the Almirahs. This witness has denied the suggestion of the prosecution that nothing was
recovered from the possession of the accused.

14. PW-R Girindra Nath Haloi was ASI, GRPS, Guwahati, the informant in the case, who was authorized
under section 42(1) of the NDPS Act, by the OC, GRPS, Guwahati to take necessary action regarding the
recovered ganja. He deposed that after reaching the Platform No. 1 of Guwahati Railway Station, found
the checking party led by PW 2 with two persons and three bags. He interrogated the said two persons,
searched the bags in presence of witnesses and found five packets of ganja from thebag of accused Nos.
1 and 3 packets of ganja from the bag of accused No. 2. He weighed the contraband and seized the
same. He exhibited Material Ext. VI, the envelope containing the seized mobile phones, identity cards
and Aadhaar Card.

During cross-examination, he had stated that he found the accused in the platform and not inside the
train. He did not personally know from where the checking party brought the accused-persons. He cannot
say under whom the accused were working. He did not seize any key of the almirahs. The material

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exhibit VI did not contain his signature, signature of the accused or of any witness. He denied the
suggestion of the defence that accused had no connection with material Exts.I, II and III.

15. PW-6 is the IO of the case. He deposed that he recorded the statement of PW 4 and thereafter,
visited the place of occurrence, sent the original Sample to FSL.

During his cross-examination he stated that he did not examine any witness after visiting the place of
occurrence, he did not enquire about whether the accused were working as bedroll staff under any
contractor, he did not examine the In-charge of the bedroll staff, he did not collect any certificate to travel
in the train issued to the accused as bedroll staff. He denied the suggestion given by defence that
accused had no connection with the seized articles.

16. Now the question of determination is whether the appellants are right in contending that there was no
conscious possession and that no presumption could be raised under section 35/54 of the NDPS Act, on
the basis of evidence available on record?

17. For a proper appreciation of the factum of conscious possession of the contraband, it is inevitable to
consider the foundational facts which led to the seizure of the contraband article as per Exts. 1 and II
seizure list, allegedly from the accused-persons. To bring home the charge of conscious possession of
the contraband, the prosecution relied on deposition of PW 1, PW 2, PW 3, PW 4 and PW 6. Their
evidence-in-chief and cross-examination can be summarized as follows:

I. During a routine checking in the Coach A4, on suspicion, the checking party, consisting of PW 1, PW 2
and PW 3, asked the accused No. 1 to open the lock of the Bedroll almirah, wherein two bags containing
suspected ganja were found and the begs were opened by the accused No. 1.

II. On interrogation, the accused No. 1 disclosed that accused No. 2, who was in Coach B3 was also
possessing ganja.

III. Accordingly, the accused No. 2 was asked to open lock of the bedroll almirah of Coach B3, which he
opened and one bag containing ganja was recovered.

IV. As the train was about to leave the station, they brought down the two accused-persons along with the
seized ganja and the bags belonging to the accused-persons to the Platform No. 1.

V. The PW 1 informed the CXI, GRPS, Guwahati regarding the recovery of the suspected ganja, who in
turn authorized PW 4 to do the needful.

VI. After reaching the Platform No. 1, PW 4, (the informant) found PW 1, PW 2 and PW 3 along with the
two accused-persons and the three bags containing the Contraband.

VII. PW 4 interrogated the accused-persons, searched the begs in presence of the witnesses and found
the three packets from the bags of accused No. 1 and 2 packets from accused No. 2, which he seized.

VIII. The PW 1, PW 2 and PW 3 were the witnesses to the seizure.

In their cross-examination, the following statements were made:

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I. PW 1, PW 2 and PW 3, stated that no document was seized to show that the accused are Bedroll
employees.

II. No duty allotment document relating to the accused-persons were seized

III. No In-charge of the accused-persons were interrogated.

IV. The two Almirahs from which the suspected ganja were recovered, were under lock and key and was
opened by the accused-persons but such keys were not seized.

V. PW 4 found the accused-persons in the platform not inside the train.

VI. PW 4 did not personally know, from where the checking party (PW 1, PW 2, PW 3) brought the
accused.

VII. He was not aware under whom, the accused were working and that he did not seize the keys.

VIII. The PW 6, the IO of the case, did not examine any witness after visiting the place of occurrence, did
not enquire whether the accused were working as bedroll staff under any contractor and did not examine
any Bedroll in-charge and did not collect any certificate of travel as bedroll employee relating to the
accused-persons.

18. Section 20(b)(i) of the NDPS Act provides punishment for possession or transportation contraband.
Possession is made up of two elements, firstly corpus — the element of physical control and secondly the
animus or intent with which such control is exercised. It is conscious possession, which is contemplated
by penal statute, which provides and penalises possession of any contraband article or thing. Possession
for the purpose of NDPS Act must not be in the sense of physical control over the article but the second
element of animus or intent to possession must also be there. Only conscious possession invites penal
consequences. Thus, possession means conscious possession and not mere custody without awareness
of such possession.

19. Section 35 of the NDPS Act provides for presumption of culpable mental state. It provides that in any
prosecution for an offence under this Act, which requires culpable mental state of the accused, the court
shall presume the existence of such mental state.

20. Before that presumption could be raised, prosecution is obliged to establish based on the principle of
preponderance of probability, that the appellant was in exclusive and conscious possession of the
contraband in order to sustain the conviction for illegal possession of the contraband.

21. While dealing with challenge made to the validity of sections 35 and 54 of the NDPS, in so far as it
imposes reverse burden upon the accused, the Apex Court has observed in the case of Noor Aga v.
State of Punjab, (2008) 16 SCC 417, as follows:—

“58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state
on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal
the said provision would clearly show that presumption would operate in the trial of the accused only in
the event the circumstances contained therein are fully satisfied. An initial burden exists upon the
prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of

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proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas
the standard of proof required proving the guilt of accused on the prosecution is “beyond all reasonable
doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the
foundational facts so as to attract the rigors of section 35 of the Act, the actus reus which is possession of
contraband by the accused cannot be said to have been established.”

While upholding the constitutional validity of sections 35 and 54 of the NDPS Act, the Apex Court has,
however, reiterated that more serious the offence, the stricter would be the degree of proof to convict the
accused. It was also observed that an initial burden would lie upon the prosecution and only when it
stands satisfied, the legal burden would shift upon the accused. What follows from the above decision is
that notwithstanding the concept of reverse burden envisaged by sections 35 and 54 of the NDPS Act,
the burden upon the prosecution to prove the foundational fact would still exist.

22. In the back drop of the aforesaid legal provision and from a close scrutiny of the materials available
on record, the following conclusion can be drawn:

A. The prosecution has failed to prove that the two accused-persons were bedroll employees on duty in
the Rajdhani Express train in coaches 4 A and B3 and that they were having control over the two bedroll
almirahs wherefrom, the bags containing the contraband were recovered.

B. No material has been brought on record to prove that the bags belonged to the accused-appellants.
The prosecution has, therefore, failed to prove the conscious possession of contraband of the accused
beyond reasonable doubt.

C. The PW 1, PW 2 and PW 3, have deposed that recovery is from inside the train. The informant PW 4,
who had allegedly seized the contrabands, has deposed that the recovery was from the bags found with
the accused in the Railway Platform. An overall analysis of the evidence on record shows that there is a
reasonable doubt as to the actual place and circumstance of recovery of the contraband.

D. Clear proof as regard the link between the accused-persons and the seized bags was required to be
brought to show the conscious possession of the contraband by the accused-persons, more so, since the
contraband was apparently seized from a public place, viz., railway platform, which was accessible by a
large number of passengers.

E. For the above reasons, we are of the view that the prosecution has not been able to prove the
foundational facts of the offence based on preponderance of probability and, therefore, the presumption
under section 35/54 of the Act cannot also be drawn against the accused-persons in the case. Rather,
the involvement of accused-appellant is doubtful and, hence, they are entitled to the benefit of doubt.

23. In view of the foregoing discussions, we hold that the impugned judgment dated 18.9.2019 passed by
the learned Sessions Judge, Kamrup (Metro) in NDPS Case No. 58/2018 of 2018 is unsustainable in law.
The same is accordingly set aside.

24. The appeal stands allowed.

25. The appellant-accused are hereby acquitted by giving them the benefit of doubt.

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26. The appellants, viz., Viswanath Pratap Singh and Ashok Bhagat, shall be forthwith released from jail,
if their custody in connection with any other proceeding is not required.

27. Send back the LCR.

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