Case Note & Summary
The State of Maharashtra appealed against the acquittal of Harshad Patel, Vijay Kothari, and Parshuram Kamble in Sessions Case No. 1303 of 1988 for offences under the NDPS Act and Customs Act. The prosecution alleged that on 31 July 1987, based on informant input, a tempo (MMS-432) containing 26 cartons of hashish was intercepted near Maha Auto Agency, Kurla, along with an Ambassador car (MMH-1640). The tempo driver was Kamble, and the car driver was Patel; Kothari was also present. The contraband weighed about 520 kg. The trial court acquitted all accused, finding that the prosecution failed to prove conscious possession, as the accused were not the owners of the tempo, and there were procedural lapses like delay in sending samples to FSL and non-examination of key witnesses. The High Court upheld the acquittal, noting that the prosecution did not establish that the accused knew the contraband was in the tempo. The court emphasized that mere presence or ownership of the vehicle does not amount to possession without knowledge. The appeal was dismissed.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Conscious Possession - Section 20(b) - Burden of Proof - The prosecution must prove beyond reasonable doubt that the accused had conscious possession of the contraband. Mere presence near the vehicle or ownership of the vehicle does not establish possession without knowledge. The presumption under Section 35 of the NDPS Act arises only after the prosecution proves the foundational facts. In this case, the prosecution failed to prove that the accused knew the contraband was in the tempo. (Paras 10-15) B) Customs Act, 1962 - Abetment and Conspiracy - Sections 135(1)(a), 135(1)(b), 135(1)(ii) read with Section 120-B IPC - The charge of conspiracy requires proof of an agreement to commit an illegal act. The evidence of the informant was not reliable, and there was no corroboration of the conspiracy. The acquittal was upheld as the prosecution did not establish any meeting of minds between the accused. (Paras 16-20) C) Criminal Procedure Code, 1973 - Appeal Against Acquittal - Section 378 - Scope of Interference - The High Court in an appeal against acquittal will not interfere unless the findings of the trial court are perverse or unreasonable. The trial court's appreciation of evidence was plausible, and the acquittal was based on proper reasoning. (Paras 21-25)
Issue of Consideration
Whether the acquittal of the respondents for offences under Section 120-B IPC read with Sections 20, 23, 29 of NDPS Act, 1985 and Sections 135(1)(a), 135(1)(b) read with Section 135(1)(ii) of Customs Act, 1962 was justified on grounds of lack of conscious possession and procedural irregularities.
Final Decision
Appeal dismissed. Acquittal of respondents upheld.
Law Points
- conscious possession
- knowledge of contraband
- burden of proof on prosecution
- presumption under Section 35 of NDPS Act
- 1985
- procedural irregularities in search and seizure
- reliability of informant
- delay in sending samples to FSL
- non-examination of material witnesses
