R.C Jain, J.— This appeal is directed against the judgment dated 16.5.2000 and order dated 24.5.2000 passed by the learned Additional Sessions Judge, New Delhi,, thereby convicting the appellant-Hegedus Lahel Csaba, a British National for the offences under Sections 20(b)(ii) and Section 23 read with Section 24 of the Narcotics Drug and Psychotropic Substance Act, 1985 (in short the ‘Act’) and sentencing him to rigorous imprisonment for a period of ten years and fine of Rupees one lac, or in default of payment of fine to further undergo RI for six months.

2. The appellant herein was prosecuted by the Customs Department for the above offences on the allegations that on the intervening night of 26/27, June 1997 while he was bound for Amsterdam from the IGI Airport, New Delhi, he was found to be in illegal and unlawful possession of 13.476 kgs of charas in contravention of the provisions of Section 8 of the Act, which drug he was attempting to export out of the country. According to the prosecution case the appellant was travelling from Kathmandu to Amsterdam and when he stopped over at IGI Airport on the night intervening 26th/27th June, 1997 in order to board flight No. KL-872 from IGI Airport for Amsterdam, he had a through checked in baggage i.e a rucksack bag having a tag No. KL-978745 which tallied with the baggage stub affixed on the air-ticket held by the appellant who was sitting in the security hold area of the Airport. On-suspicion being created through the sniffer dog, the appellant was asked to identify the rucksack bag which he did and thereafter a notice under Section 50 of the Act was served upon him and the bag was searched in presence of panch witnesses and found to contain 11 packets wrapped with adhesive tapes, which in turn contained 31 packets. The packets were found to contain brown colour substance in the shape of rectangular slabs/balls which was disclosed by the appellant as charas having been purchased by him from Nepal. A small quantity of the substance was tested and it gave positive indication for charas/hashish. Samples were taken from the packets and remaining quantity from each of the 31 packets were sealed. On questioning, the appellant is stated to have made a statement under Section 67 of the Act. The appellant was arrested and produced before the Court and remanded to judicial custody.

3. Charges were framed against the appellant, to which he pleaded not guilty and claimed trial. Prosecution cited and examined six witnesses in all to substantiate its case. In his examination under Section 313 Cr.P.C, the appellant denied almost the entire incriminating evidence and circumstances put to him in regard to the search, recovery and seizure of the said contraband and various proceedings recorded in that connection in his presence. He claimed that his signatures were obtained on certain blank sheets which were later converted into documents. He admitted that the rucksack bag and the personal effects contained therein belonged to him, but came out with the plea that the bag had been tampered with when it was shown to him but nothing incriminating was recovered from said bag in his presence. He pleaded innocence and came out with the defence plea that the rucksack bag was given by him at the counter of Royal Nepal Airlines and it was locked at that time. That he was to go to Amsterdam and was a transit passenger at Delhi when he was asked by the Customs officers and the officials of Royal Nepal Airlines and KLM Airlines to accompany them and then they showed him the articles recovered from the bag which had already been opened. He disclaimed knowledge as to who had put these articles into his said bag. According to him, he was illegally arrested, mal-treated, given beatings and on false promise of taking his family history he was made to write a statement on the assurance that he would be let off afterwards. Pitted against such a situation and feeling helpless, he wrote whatever he was asked to write. The said statement was, however, later on retracted by him by means of another writing submitted to the Court. The appellant entered into the witness box as his own witness under the provisions of Section 315 Cr.P.C with a view to substantiate his defence plea. The learned trial court on a consideration of the facts and circumstances, the evidence and material brought on record, found the appellant guilty of the said charges, convicted and sentenced him, as above. Aggrieved by his conviction and sentence, the appellant has filed the present appeal.

4. I have heard Mr. Harjinder Singh, learned counsel representing the appellant and Mr. Satish Aggarwal, representing the respondent/Customs at length and have given my thoughtful consideration to their respective submissions. Though in the memorandum of appeal, number of grounds were set up for assailing the conviction of the appellant, but during the course of hearing, learned counsel for the appellant has largely confined his attack on the following grounds:

(1) The prosecution has failed to establish conscious and intelligible possession of the contraband by the appellant beyond reasonable doubt;

(2) The learned trial court has erred in recording the finding of guilt by relying and acting upon the statement of the appellant purportedly made under Section 67 of the Act and raising the presumption under Section 35 of the Act; and

(3) The link evidence was missing and provisions of Section 55 of the Act were not complied with.

5. The submissions of the learned counsel for the appellant may be dealt ad seriatam. The first and foremost submission put-forth on behalf of the appellant is that even if the recovery of the above quantity of charas/hasish from the rucksack bag belonging to the appellant is to be believed, there exist number of circumstances which would indicate that the appellant had no conscious possession of the alleged contraband. In this connection it is pointed out that the appellant had handed over his rucksack bag to the officials of Royal Nepal Airlines at Kathmandu as a checked in baggage in a locked condition and it was a through baggage to be delivered to him on reaching Amsterdam. The said baggage was in turn handed over to the officials of KLM Airlines by Royal Nepal Airlines officials at IGI airport. As per the testimony of PW1 A.K Saxena, the rucksack bag was not locked in any manner when it was intercepted at the conveyor belt and the witness could open the bag without the help of the accused. The witness also admitted that before reaching the conveyor belt the baggage was already X-rayed by the Airline staff and did not receive any complaint from the airline staff about the baggage of the accused. According to him, even the dog handler of the dog which sniffed the bag leading to suspicion was not produced. It is also pointed out that the prosecution has not produced any official either of the Royal Nepal Airlines, Kathmandu with whom the appellant had checked in his baggage or did receive the baggage at IGI airport or of the KLM Airlines who took over the checked in baggage of the appellant from Royal Nepal Airlines. These officials were not called and examined by the prosecution despite an application under Section 311 read with Section 284 of Cr.P.C having been made by the appellant. It has been argued that once the appellant had checked in the bag in a locked condition at Kathmandu Airport and the bag was found in an unlocked condition at the relevant time of the alleged recovery of the contraband, there was every possibility of anybody implanting the contraband into the bag of the appellant either at the Kathmandu Airport or during transit or at the IGI Airport itself.

6. Mr. Harjinder Singh, learned counsel for the appellant has strongly urged that in view of the above facts and circumstances, presumption in regard to the culpable mental state of the appellant, as envisaged by Section 35 of the Act, could not have been raised by the learned trial court. On the other hand, respondent's counsel submitted that presumption as envisaged by Section 35 of the Act has been correctly raised in this case having regard to the facts and circumstances and more particularly the statement made by the appellant under Section 67 of the Act.

7. This Court has considered the respective submissions. Similar arguments were raised before the trial court as well and the learned trial court on a consideration of the evidence and material brought on record has repelled the submissions put-forth on behalf of the appellant and in the opinion of this Court rightly so. There is no denial of the legal proposition that the presumption as envisaged under Section 35 of the Act is a rebuttable presumption and such a presumption can be inferred only when prosecution satisfies that a person was in a conscious intelligible possession of the contraband. The presumption can be rebutted by the accused either by referring to the evidence of the prosecution and/or by producing the defence evidence. It is equally true that only conscious and not a mere possession of a contraband is an offence. This has been so held by the Hon'ble Supreme Court in the case of State of Punjab v. Baldev Singh, JT 1999 (4) SC 594 and in the case of Sanjay Dutt v. State, JT 1994 (5) SC 540. However, the question for consideration is as to whether on the face of the facts and material brought on record, the learned trial court was justified in raising such a presumption. The rucksack bag from which the contraband was recovered admittedly belonged to the appellant and it had the same tag number as on the stub affixed on the ticket of the appellant. No evidence has come on record to show that the bag was, in fact, in a locked condition when it was handed over to the Royal Nepal Airlines officials at Kathmandu Airport. On the other hand, it is denied by the respondent that the bag in question was locked when handed over to Royal Nepal Airlines officials at Kathmandu Airport. In fact, it was submitted that rucksack was incapable of being locked. This point was stretched before this Court and so this Court found it appropriate to have an inspection of the rucksack bag in question and the same was produced on 13.5.2005, when this Court made the following observations:

“The case property has been produced. Out of the four sealed parcels, one sealed parcel containing a ruck-sack bag is allowed to be opened and has been displayed before the Court. Ruck-sack bag does not have any inbuilt locking device in it. It can be closed by tightening a string existing on its main opening. The bag has three zips on the smaller pockets but not on the main opening of the bag.

Mr. Harjinder Singh, learned counsel for the appellant has tried to demonstrate that it is possible to put a lock on the bag by combining holes of the edges of the opening of the bag but the same could be done with great difficulty.”

8. It is apparent to this Court that the rucksack bag in question could not possibly have been locked because there existed no inbuilt locking device in the same and it was not possible to lock the same in ordinary/normal way. It appears to the Court that the appellant wants to take undue advantage of non-production of the Airlines staff as witnesses by coining the defence in regard to the bag having been handed over to the airlines officials in locked condition. It is, therefore, not possible to hold that the bag in question was opened subsequently and the contraband implanted therein either at the airport or during transit. The statement of the appellant Ex.PW2.B recorded by him does not find mention that the rucksack bag was locked when the appellant checked in with the same by Royal Nepal Airlines so the defence put-forth by him appears to be afterthought. Having regard to the totality of the facts and circumstances, the evidence and material obtaining on record, this Court must hold that the learned trial court was fully justified in raising the presumption as envisaged by Section 35 of the Act holding that the appellant was in conscious and intelligible possession of the contraband. The finding cannot be faultered.

9. Mr. Harjinder Singh, learned counsel for the appellant has next argued that the learned trial court has erred in relying and acting upon the statement of the appellant Ex.PW2.B made under Section 67 of the Act because the said statement was not a voluntary statement of the appellant and was pursuant to a threat emanating from the summons Ex.PW2.A and the person in authority. In any case the said statement was retracted at the first available opportunity and an attempt has been made to show that the said statement is a dictated one because it largely contains identical/similar contents as that of the panchnama. It is no doubt true that a part of the statement contains the narration of facts and events similar to that contained in the panchnama, but it also contain various other facts of which the concerned Customs officials could possibly have no knowledge. The appellant gave his detailed background and the manner in which he had been exporting various quantities of hashish from India and Nepal on earlier occasions. These facts were within the special knowledge of the appellant and, therefore, it is impossible to hold that the statement made by the appellant was not voluntary. So far as the retraction of the statement is concerned, the same was made by the appellant on 15.7.1997 i.e after about 18 days of making the earlier statement. The appellant did not inform the Magistrate before whom he was produced on the following day of his arrest that the Customs officials had extracted any statement from him against his wishes. It would appear to the Court that the subsequent retraction of the statement must have been on some legal or other advice rendered to the appellant and, therefore, such retraction cannot be relied and acted upon.

10. Mr. Harjinder Singh has lastly argued that the link evidence is missing in this case and there has been non-compliance of the provisions of Section 55 of the Act and the guidelines issued by the NCB. Relying upon the judgment of Utpal Mishra 1997 II AD Crl. Delhi 537. Mr. Singh argued that in the case in hand the seized articles could be deposited at the malkhana/valuable gbdown at the airport itself but the samples were sent to CRCL on 3.7.1997 only while the seizure of the contraband is on the night intervening 26/27th June, 1997 and the case property was produced for the first time in Court on 19.1.1998 It was also urged that prosecution has brought no evidence on record to prove where the case property was kept during the intervening period. It is also submitted that there are no entries of despatch of samples to CRCL and receipt of the same sample from CRCL. It is also pointed out that the case property when produced in the court was tampered. These submissions were made before the learned trial court and have been negatived by the court below by appropriate and cogent reasons. No fault can be found with the same. Having regard to the facts and circumstances, evidence and material obtaining on record, it cannot be said that there was any missing link in the evidence or that a particular provision of law was not complied with or in any case has resulted into any prejudice to the appellant.

11. No other point was pressed.

12. Having regard to the facts and circumstances and the evidence and material obtaining on record, this Court is of the considered opinion that the finding of conviction recorded by the learned trial court is justified and cannot be faltered on any of these counts.

13. In the result, this appeal fails and is hereby dismissed.