1. Appellants Mohammad Akhtar and Mohammad Ali Naved have been convicted under Section 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 AH 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 diggi 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-l. 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 diggi 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 diggi 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 diggi of the car. The finding of the trial Court that this charas was found in the tin box in the diggi 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 is no evidence from the side of appellant no. 2 Mohammad Ali Naved to the effect that he was only a passenger in the car. It was not a taxi or a public vehicle. It was a private car. A passenger is generally not allowed in the car. It has been suggested in the cross-examination of the prosecution witnesses that the appellant No. 2 was only a passenger in the car. Beyond that there is no evidence to support that plea.

9. Section 35 of the Act provides as under :

"35. Presumption of culpable mental state. - (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation -- In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability".

10. In Inder Sain v. State Of Punjab ., AIR 1973 SC 2309, the Supreme Court interpreted Section 10 of the Opium Act, 1878 which was as under :-

"10. In prosecutions under Section 9, it shall be presumed, until the contrary is proved, that all opium for which the accused person is unable to account satisfactorily is opium in respect of which he has committed an offence under this Act"

In that case the delivery of a consignment was taken by the accused from the railway parcel office. The question was whether the accused could be said to be in possession of the opium inside the parcel. The Supreme Court held that the word 'possess' in Section 9 connotes some sort of knowledge about the thing possessed. It was held that knowledge is an essential ingredient of the offence under Section 9 of the Act as the word 'possess' connotes possession with knowledge. The legislature has not intended to make mere physical custody without knowledge an offence. It was further held that in view of Section 10 of the Act prosecution need only show that the accused has dealt with the article or has physical custody of the same or is directly concerned with it. Once it is so shown, the onus of proof is placed by virtue of Section 10 on the accused to prove by preponderance of probability that he did not knowingly possess the article. The observation of the Supreme Court in paras 17, 18 and 20 are very instructive which are as under :-

"17. But it is said on behalf of the prosecution that in most cases of unauthorised possession of opium the prosecution will never be able to prove that the accused was knowingly in possession of the article and that the burden to prove that he was not in conscious possession is upon the accused by virtue of Section 10 of the Act. That section seems to proceed on the assumption, if it is proved that the accused had something to do with opium, then the burden of proof that he has not committed an offence will be upon the accused. In other words, when once it is proved in a prosecution under Section 9 of the Act that the accused was in physical custody of opium, it is for the accused to prove satisfactorily that he has not committed an offence by showing that he was not knowingly in possession of opium. It would, therefore, appear that the prosecution need only show that the accused was directly concerned in dealing with opium. If the prosecution shows that the accused had physical custody of opium then, unless the accused proves by preponderance of probability that he was not in conscious possession of the article the presumption under Section 10 would arise. We do not think that the language of Section 10 would warrant the proposition that for the presumption mentioned in the section to arise it is necessary for the prosecution to establish conscious possession.

18. In our opinion Section 10 would become otiose if it were held that prosecution must prove conscious possession before it can resort to the presumption envisaged in the section. As we said Section 10 proceeds on the assumption that a person who is in any way concerned with opium or has dealt with it in any manner, must be presumed to have committed an offence under Section 9 of the Act, unless the person can satisfactorily prove by preponderance of probability either that he was not knowingly in possession or other circumstances which will exonerate him. The burden to account will arise only when the accused is in some manner found to be concerned with opium or has otherwise dealt with it.

20. In the last analysis, therefore, it is only necessary for the prosecution to establish that the accused has some direct relationship with the article or has otherwise dealt with it. If the prosecution proves detention of the article or physical custody of it, then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the onus is placed on the prosecution, the object of the Act would be frustrated".

11. The language of Section 35 of the Act is much stronger than Section 10 of the Opium Act. According to the Explanation to Section 35(1) 'culpable mental state' includes knowledge of a fact. According to Section 35(1) the Court shall presume existence of such mental state. The burden is placed upon the accused to prove the fact that he had no such 'mental state'. The degree of burden of proof is 'beyond a reasonable doubt'. In view of this statutory presumption, the prosecution is required to establish the objective facts i.e. physical control or custody. The prosecution is not initially required to prove the 'knowledge'. That is to be presumed.

12. Possession is made of two elements; 'corpus' and 'animus'. The prosecution is required to prove the physical control and then the knowledge will be presumed unless disproved by the accused. Law developes empirically to meet practical needs. For that reason the Supreme Court has observed in Inder Sain's case that it will practically be impossible for the prosecution to prove the 'knowledge'. The onus is shifted from prosecution to the accused because the fact how the accused came in physical custody of the contraband is within his knowledge. That is also provided in Section 106 of the Evidence Act. If the burden of proving the knowledge part is also laid on the prosecution, the presumptive clause in Section 35 of the Act would become redundant or otiose.

13. In the present case the two appellants were in the car and the charas was also there. They had the "physical custody" of the contraband. As already stated there is no evidence to the effect that the appellant No. 2 was only a passenger in the car. As per Section 35 of the Act, the burden is upon the accused to prove 'beyond reasonable doubt' and not merely by 'preponderance of probability' that he was not having knowledge that the contraband article is kept in the car.

14. The absence of menu rea in such cases is to be established by the accused. It may appear somewhat a novel phenomena to the traditional criminal jurisprudence that the burden on the accused to prove a fact is of the degree which is generally laid on prosecution i.e. proof beyond reasonable doubt. But that has been given a statutory recognition. In view of this legal position it is not enough to suggest in the cross-examination of the prosecution witnesses that appellant Mohammad Ali Naved was only a passenger in the car. It was necessary for him to establish this fact beyond reasonable doubt. As already stated there is no evidence on this point and therefore, it would be presumed that appellant Mohammad Ali Naved was also in possession of the charas which is said to have been found in this car.

15. Points (b) and (c) Vishwanath Jadia (P.W. 3) has deposed that he had sealed the charas seized from the car on the spot. He had deposited the sealed packet in the Malkhana. He did not open the packet, it is found that Vishwanath Jadia (P.W. 3) was Station Officer of Bijawar Police station. He was called to Chhatarpur by the Superintendent of Police and he was sent for his duly near Nau-Durga orchestra as there was some programme. During the course of the checking of the vehicles under the Motor Vehicles Act, the Fiat car was checked and then the charas was recovered. R. K. Singh (P.W. 4) was the Town Inspector at Chhatarpur police station. He has deposed that he got the commodity sent with the letter dated 13-11-1992 Ex. P-8 to the Forensic Science Laboratory, Sagar. In this letter it is clearly mentioned that the commodity was sent in a sealed packet. The report of the chemical examiner is Ex. P-9. In this report it is mentioned that the packet which was received in the laboratory was having the seal of Chhatarpur police station. S. K. Tiwari (C.W. 1) was the chemical examiner. He has deposed that there was a seal on the packet. The seal was not broken. It is thus established that a sample of the charas which was seized from the car was sent to the Forensic Science Laboratory and on analysis it was found that it was charas. There was no tampering with the seal.

16. It is argued on behalf of the appellants that the packet containing the commodity was opened for examination by the Excise Inspector on 4-10- 1992 as per letter Ex. D-l. It is further argued that there is no evidence that this packet was duly sealed after it was opened by the Excise Inspector. It can be presumed that the packet must have been sealed as is borne out from the copy of the letter Ex. P-8 and also the report of the chemical examiner. Learned counsel for the appellants has placed reliance on the decision of the Supreme Court in State Of Rajasthan v. Daulat Ram., AIR 1980 SC 1314, in support of the plea that it was necessary for the prosecution to prove that the sample was taken from the commodity which was seized and there was no tampering of the packet. The above decision is basically on the facts of that case. In the present case it has been proved that the sample was duly sealed with the seal of Chhatarpur police station and it was sent to the Forensic Science Laboratory. This packet of the sample was received there in sealed condition. Therefore, the above decision does not apply to the facts of the present case.

17. The conviction of the appellants under Section 20(b)(ii) of the Act is well merited. The minimum sentence prescribed by law has been imposed by the trial Court. ,

18. The appeal is dismissed.