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Case Number

Criminal Appeal No. 555 of 2005

Advocates

Rai Ramesh Prasad
Gopesh Kumar
D.K.Sinha

Judges

Ghanshyam Prasad, J.

Acts

Sections of Chapters III and IV of the N.D.R.S Act.
Section 53 or Section 67 of the N.D.P.S Act
Section 20(E), of the N.D.P.S Act
SECTION 25 EVIDENCE ACT
Section 23 of the N.D.P.S Act
SECTION 9 OPIUM ACT
Section 54 of N.D.P.S Act
Section 20(B)

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Smart Summary

Structured Summary of the Opinion (Ghanshyam Prasad, J.)

Factual and Procedural Background

This is an appeal by the sole appellant against a judgment of conviction and sentence dated 30th September 2005, passed by the 3rd Additional Sessions Judge, Muzaffarpur in Case No. 53 of 2003. The appellant had been convicted under Section 20(B) and Section 23 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for ten years under each count, to pay a fine of Rs. 1,00,000 and, in default, to undergo imprisonment for one year.

The prosecution case, as narrated in the trial court, is that on 14th August 2003 the Customs Department, Muzaffarpur received information about illegal import of ganja from Nepal by a jeep bearing registration No. WB-2A-7539 coming from the side of Dhaka, East Champaran. A raiding party led by Mr. M.P. Singh (P.W.6) stationed on National Highway 28 near Motipur intercepted the vehicle. At about 4:00 p.m. the jeep was sighted; the driver turned and fled, and eventually absconded after being chased. The appellant, wearing saffron dress, remained in the jeep and stated he was a sadhu coming from Janakpur and had taken a lift at Mahesi Railway Station. Customs officials recovered 86.35 kilograms of ganja from a secret chamber of the jeep; the recovery was recorded in the presence of two seizure witnesses and a sample was sent for chemical examination.

The appellant was arrested; voluntarily and interrogatory statements were recorded by Customs officials; a complaint was lodged and 13 prosecution witnesses were examined at trial, including the complainant (P.W.4) and the two seizure witnesses (P.Ws.12 and 13). The appellant's defence at trial was that of false implication and innocence — that he was a sadhu who had simply taken a lift and had no knowledge of the ganja. He produced two defence witnesses (D.W.1 and D.W.2). The trial court convicted; this appeal challenges that conviction.

Legal Issues Presented

Whether the prosecution proved that the appellant had "conscious possession" (i.e., knowledge of possession) of the recovered ganja so as to sustain conviction under Section 20(B) and Section 23 of the N.D.P.S. Act.
Whether statements/confessions recorded by Customs officials (under Sections 53/67 of the N.D.P.S. Act) relied upon by the trial court were voluntary and admissible for proving possession/knowledge.
Whether the statutory presumption in Section 54 of the N.D.P.S. Act could be drawn against the appellant on the facts of this case.

Arguments of the Parties

Prosecution's Arguments

The recovered contraband (86.35 kg of ganja) was found in a secret chamber of the jeep and seized in presence of independent witnesses (P.Ws.12 and 13), with chemical examination (Exh.5) confirming the material as ganja.
The trial court relied upon voluntarily and interrogatory statements of the appellant recorded by Customs officials (Exhs.2 and 3) to establish the appellant's knowledge/possession.

Appellant's Arguments (Defence)

The appellant asserted he was a sadhu who had taken a lift from Janakpur/Mahesi Railway Station and had no knowledge of the ganja in the jeep's secret chamber.
He claimed false implication by the prosecution and maintained innocence; argued that had he known about the ganja he would have fled with the driver, but he did not flee and remained in his seat.
The appellant also disputed the voluntariness/authenticity of the statements, alleging threats and that some statements were recorded after prolonged custody and were inconsistent with earlier denials.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Inder Sain v. State of Punjab, (1973) Supreme Court 2309	Definition of "possession" in narcotics/opium cases: possession requires knowledge; "possess" connotes conscious possession and knowledge is an essential ingredient.	The court relied on this authority to hold that mere presence of ganja in the jeep does not establish possession by the appellant; the prosecution must prove the accused had knowledge of the contraband.
Emperor v. Santa Singh, AIR 1944 Lah 339; and other cases cited within Inder Sain	Cited by Inder Sain as supporting decisions that where possession is the offence, proof of knowing possession is required.	Referenced (via Inder Sain) to reinforce the principle that possession in such offences must be conscious possession with knowledge; used to support the court's analysis that knowledge was not proved.
Sahendra v. King-Emperor, AIR 1948 Pat 222; Abdul Ali v. The State, AIR 1950 Assam 152; Pritam Singh v. The State, 68 Pun LR 200 (AIR 1967 Punj 50); Sub-Divisional Officer and Collector, Shivasagar v. Gopal Chandra Khaund, (1972) 4 SCC 263 (AIR 1971 SC 1190)	These decisions were cited in Inder Sain and relate to the principle that possession as an offence requires proof of knowing possession.	The court treated these authorities as part of the jurisprudential foundation (via Inder Sain) for requiring proof of knowledge before drawing a presumption of guilt from possession.
Unidentified citations in the opinion: "1962 Supreme Court 276" and "1970 Supreme Court 940"	Stated to support the proposition that confessions/statements recorded by Customs officials under Sections 53/67 of the N.D.P.S. Act are not hit by Section 25 of the Evidence Act (because Customs officials are not police officers), and thus can be used against the accused.	The court acknowledged these authorities to explain that statements recorded by Customs officials may be admissible but emphasized that admissibility depends on voluntariness; the court applied that limitation in assessing Exhs.2 and 3.

Court's Reasoning and Analysis

The court's analysis proceeded in discrete steps, each tied to material on record and authority cited in the opinion:

Establishment of recovery and identity of seized material: The court accepted that ganja (86.35 kg) was recovered from a secret chamber of the jeep; this fact was supported by multiple witnesses (including seizure witnesses P.Ws.12 and 13 and complainant P.W.4) and chemical examination (Exh.5) confirming the recovered article as ganja. The seizure memo (Exh.1) bore signatures and L.T.I. of the independent seizure witnesses.
Legal requirement of "knowledge" for possession: The court noted that "possession" is used in various provisions of Chapters III and IV of the N.D.P.S. Act but is not defined therein. Reliance was placed on Inder Sain v. State of Punjab (1973) where the Supreme Court held that in comparable statutory language the word "possess" requires conscious possession — knowledge is an essential ingredient. From that, the court concluded that mere presence of contraband in the vehicle is insufficient to establish possession by an occupant; knowledge must be proven.
Admissibility and voluntariness of recorded statements: The court observed that confessions/statements recorded by Customs officials under Sections 53 or 67 can be used because they are not excluded by Section 25 of the Evidence Act (Customs officials are not police officers), citing earlier Supreme Court decisions. However, the court stressed that admissibility depends on the statements being truly voluntary, and prolonged custody can indicate involuntariness.
Assessment of the actual statements in this case: The record contained statements of the appellant recorded on 14th August 2003 (two statements in which the appellant denied knowledge and stated he was a sadhu who had taken a lift) and subsequent statements recorded on 15th August (allegedly containing a confession). The court found the statements on 15th August could not be treated as voluntary because they were recorded after prolonged detention; the earlier statements of 14th August could be considered voluntary. The statements were internally contradictory and none were in the appellant's own handwriting.
Procedural infirmity under Section 313 Cr.P.C.: The court noted that the alleged confession was not specifically put to the appellant in his Section 313 Cr.P.C. examination — only a vague question regarding the interrogatory statement was asked. Because Section 313 is designed to give the accused opportunity to explain incriminating material against him, the failure to put the specific confessional material deprived the appellant of that right and diminished reliance on Exhs.2 and 3.
Consideration of surrounding circumstances: The court found that conduct at the scene tended to support the appellant's account — when the Customs vehicle appeared and the jeep's driver fled, the appellant did not attempt to flee and remained seated, which the court interpreted as probative of lack of knowledge about the contraband and consistent with his defence of being a sadhu who had merely taken a lift.
Conclusion from evidentiary assessment: Combining the requirement of conscious possession (per Inder Sain), the infirmities in reliance on the statements/confessions, the absence of any material showing ownership or control of the jeep by the appellant, and the favourable surrounding circumstances for the appellant, the court concluded that the prosecution failed to prove that the ganja was in the appellant's conscious possession. Consequently, no presumption under Section 54 could be drawn against him on these facts.

Holding and Implications

Appeal Allowed; Conviction Set Aside.

The court allowed the appeal, set aside the conviction and sentence recorded by the trial court, and directed that the appellant be released forthwith if he was not required in any other case.

Implications:

Direct effect: The appellant's conviction under Section 20 (and Section 23) of the N.D.P.S. Act was quashed and the appellant was ordered to be released if not wanted in any other matter.
On precedent/new law: The opinion applies established authorities (notably Inder Sain) concerning the requirement of conscious possession and emphasizes admissibility principles for statements recorded by Customs officials. The decision, as reported in this opinion, does not purport to lay down a novel legal principle beyond applying those authorities to the facts; the immediate consequence is the acquittal and release of the appellant.

Note: All statements, exhibits, witness references, statutory provisions and case citations in this summary are reproduced strictly as they appear in the provided opinion. No facts or legal conclusions beyond the text of the opinion have been added.

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Nathe Rai v. State Of Bihar

Ghanshyam Prasad, J.:— This appeal has been preferred by the sole Appellant against the judgment of conviction and sentence dated 30th September, 2005, passed by-Sri Ram Prabhu Pandey, 3rd Additional Sessions Judge, Muzaffarpur in Case No. 53 of 2003. The sole Appellanthas been convicted under Section 20(B) as well as under Section 23 of the N.D.P.S Act and has been sentenced to undergo R.I for ten years under each count to pay fine of Rs. 1 lac and in default to undergo R.I for one year.

2. The prosecution case in brief is that on 14th August, 2003, Custom Department, Muzaffarpur received a telephonic message with regard to illegal import of ganja from Nepal through Jeep No.WB-2A-7539 from the side of Dhaka, East Champaran. Under the leadership of Mr. M.P Singh, Custom Inspector (P.W 6), a raiding team was organised. The team took position on N.H 28 near Motipur. At about 4.00 p.m, the aforesaid jeep was found coming from the side of Motihari. However, seeing the Custom Jeep, the driver of the jeep turned his jeep, the Custom Officials chased the jeep but the driver of the jeep after stopping the jeep fled away. This Appellant in saffron colour dress was found sitting on the jeep. He did not attempt to flee away. On enquiry, he disclosed his name and also told that he was a Sadhu and was coming from Janakpur. He took lift in jeep at Mahesi Railway Station. The Custom Officials checked the jeep and ultimately, recovered 86.35 kgms. of ganja from secret chamber of the jeep. The ganja was seized in presence of two independent seizure list witnesses and sample of ganja was sent to Gazipur for chemical examination.

3. The Appellant was arrested and his voluntarily as well as interrogatory statements were recorded by different Custom Officials. Ultimately, complaint was lodged against the Appellant before the Court of Sessions Judge.

4. In course of the trial, 13 witnesses were examined by the prosecution including complainant Durga Choudhary as P.W 4 and seizure list witnesses Nagina Prasad (P.W 12) and Rakesh Kumar (P.W 13).

5. Defence of the Appellant is false implication and plea of innocence. He is Sadhu and has already renounced the world long ago while he was returning from Janakpur after having darshan of the deity, he took lift in the jeep for coming to Hajipur. He had no knowledge about the presence of ganja in false chamber of the jeep. Had he knowledge about the presence of illicit ganja he would have tried to flee away alongwith driver of the jeep. In support of his defence, he has examined two witnesses, as D.W 1 Abhinash Prasad Sah, D.W 2 Madhu Ram. 7. There is no dispute that ganja was recovered from false chamber of the jeep in question. Almost all witnesses have supported this fact. The chemical examination (Exh. 5) also confirms that the recovered article from the jeep was ganja. The'recovery was also made before two independent local witnesses as required Under the Act. They are P.Ws 12 and 13. They have put their signature and L.T.I upon the seizure list/memo (Exh. 1). Seizure was conducted by P.W 4 Durga Choudhaiy. He in his evidence has fully supported about the recovery of ganja from false chamber of the 8. Section 20(E), of the N.D.P.S Act provides punishment for possesstonof cannabis (ganja). Section 54 provides presumption of commission of offence under the Act from mere possession of illicit articles. Section 54 of N.D.P.S Act runs as follows:

54. Presumption from possession of illicit articles.-In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of—

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) any appiaratus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.

6. The word possession is used in various Sections of Chapters III and IV of the N.D.R.S Act. However, It is nowhere been defined under the Act. The Apex Court in a decision reported in 1973 Supreme Court 2309 (Inder Sain v. State of Punjab) has defined the real meaning of possession in a case of Opium Act. The language of Section 9 of the Opium Act is almost similar to that of Section 20(B) of the N.D.P.S Act or Section 23 of the Act. In paragraphs 15 and 21 of the judgment, it has been held as follows:

15. We think that the only question for consideration here is whether the Appellant was in possession of opium. It was held in a number of rulings of the various High Courts that if possession of an article is made an offence, then there must be proof that the accused was knowingly in possession of the article. See the decisions in Emperor v. Santa Singh, AIR 1944 Lah 339; Sahendra v. King-Emperor*, AIR 1948 Pat 222, Abdul Ali v. The State AIR 1950 Assam 152, Pritam Singh v. The State, 68 Pun LR 200 -(AIR 1967 Punj 50) and Sub-Divisional Officer and Collector, Shivasagar v. Gopal Chandra Khaund; (1972) 4 SCC 263 : AIR 1971 SC 1190.

21. It does not follow from this that the word “possess” in-Section 9 does riot connote conscious possession. Knowledge is an essential ingredientof the offence as the word “possess” connotes, in the context of Section 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge an offence. A conviction under Section 9(a) would involve sortie stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession.

7. From above decision, it is quite clear that mere presence of ganja in jeep does not constitute possession. There must be knowledge about it oh the part of the occupant.

8. The learned Lower Court has relied upon the voluntarily (Exh. 3) and interrogatory (Exh. 2) statements of the Appellant. It js settled law that confession/statement of the accused recorded by the Custom Officials under Section 53 or Section 67 of the N.D.P.S Act is not hit by Section 25 of the Evidence Act as they are not Police Officers (see 1962 Supreme Court 276 and 1970 Supreme Court 940). Therefore, it can be used against the accused for determining the question of possession. However, it must be voluntary in true sense and not obtained through threat of inducement of the accused. Prolong custody of the accused is one of the circumstances to show involuntary nature of the statement.

9. In present case, there is a peculiarity in recording the Voluntarily as well as interrogatory statements (Exhs. 2 and 3). The Appellant was arrested on 14th August, 2003, at 4.00 P.M On the same day, both statements were recorded by the. Custom Officials. In both the statements, he denied about having any knowledge of presence of ganja in false chamber of the jeep. He also stated that he is a Sadhu and while he was returning from Janakpur after having darshan he took lift in the jeep from driver. On the next day, i.e, 15th August, 2000, again, his statements were recorded in continuity of the above statements. In that very statements, it is alleged that he made confession of the offence as also knowledge about possession of ganja in the jeep.

10. The question is whether the statements recorded on 15th August, 2000, can be treated as voluntarily which is sine qua non for admissibility, of the statement recorded by Custom Officials under Section 67 of the Act. The answer is in negative simply became it was recorded after prolong detention in custody. Earlier statement recorded on 14th August, 2000, can be treated as voluntary statements. Both the statements being of diabolically contradictory cannot be relied upon for the conviction in such a grave nature of offence. It is important to mention here that none of the statements is in pen of the Appellant.

11. Apart from so called voluntarily/interrogatory statements (Exhs. 2 and 3), there is no other material on the record to show that the jeep in question belonged to the Appellant or he had any knowledge about the presence of ganja in false chamber of the jeep. The fact of confession in Exhs. 2 and 3 has also not been produced to the notice of the Appellant in his statement recorded under Section 313 of Cr.PC The object of Section 313 Cr.PC is to provide an opportunity to the accused to explain the circumstances or incriminating material that appear against him in the evidence. This is not mere formality. It is valuable right of the accused. In this case, the Appellant was denied an opportunity to explain so-called confessional statement recorded by the Custom Officials, upon which the conviction is based, by not putting specific question about the confession. On that place vague question has been put to the accused only with regard to interrogatory statement as to whether statement given in interrogatory statement is true or not. The answer is not only in negative but also that his signature was obtained by putting him under threat and fear. No question has been put with regard to the so-called voluntary statement. Therefore, no much reliance can be placed either on Exh. 2 or on Exh. 3.

12. Circumstances also do not justify that the Appellant had any knowledge about ganja in false chamber of the jeep. On seeing the jeep of Custom Department, the driver of the jeep in question fled away but the. Appellant did not even make any attempt to flee away. On the other hand, he did not move from his seat evenafter seeing the officials approaching him. This clearly goes to show absence of knowledge on his part with regard to presence of ganja in the false chamber of the jeep. These facts show that the defence of the Appellant has got truth. The defence is that the Appellant is a Sadhu and he had merely taken lift from the driver to'come to Hajipur. Thus, from the above discussions, this Court is of firm opinion that the prosecution has miserably failed to prove that the ganja was recovered from conscious possession of the Appellant as required under the law. Therefore, no presumption can be drawn against him with regard to guilt of any offence under Chapter-III or IV of the N.D.P.S Act. Apparently, the conviction of the Appellant either under Section 20 or under Section 23 of the N.D.P.S Act is bad and illegal.

13. In the result, this appeal is allowed. The Judgment in question is hereby set aside. The Appellant is directed to be released at once, if not wanted in any other case.

Nathe Rai v. State Of Bihar

Structured Summary of the Opinion (Ghanshyam Prasad, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Prosecution's Arguments

Appellant's Arguments (Defence)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Nathe Rai v. State Of Bihar

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