Case Note & Summary
The High Court of Bombay heard two criminal appeals against convictions under the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution alleged that on 21 February 1999, acting on information, officers seized 20 kg of charas from Room No.200, Bharat Nagar, Bandra (East), Mumbai, where the two accused were present. The Special Judge convicted them under sections 8(c) read with 29 and 8(c) read with 20(b)(ii) for criminal conspiracy and possession of charas, sentencing each to 10 years rigorous imprisonment and a fine of Rs 2 lakhs. The appellants challenged the conviction on grounds of false implication, lack of evidence of exclusive possession, and procedural lapses. Accused No.2 claimed he was picked up from his home a day earlier and forced to sign the panchanama, while accused No.1 denied ownership or possession of the room and pointed out that the prosecution had not verified actual occupancy. The defence also relied on non-compliance with sections 42 and 50 of the NDPS Act, though these points were not seriously pressed. The State maintained that proper procedures were followed, the contraband tested positive for charas, and the accused were apprehended at the spot. The High Court narrowed the central issue to whether exclusive and conscious possession had been proved. The court analyzed the evidence of the complainant (PW1), the panch (PW3), the claimed owner of the room (PW5), and a neighbor (PW6). It noted that no documentary evidence such as ration card, electricity bill, or any other document was produced to establish that accused No.1 was in exclusive possession of the room. The testimony of PW5, who was not on talking terms with accused No.1 due to a property dispute, was recorded almost a year after the incident and did not clearly identify the accused. The court observed a lack of serious effort to ascertain the real owner or occupier. Although the prosecution asserted that the accused were found at the scene, the analysis indicated that the evidence of possession was weak. The provided text of the judgment ends before a final conclusion is reached, and the operative order is not included.
Headnote
A) Criminal Law - Narcotics - Proof of Possession - Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 8(c), 20(b)(ii), 29 - The prosecution must prove exclusive and conscious possession of the premises and contraband; documentary evidence such as ration card or electricity bills is relevant to establish occupancy. The court observed that no such evidence was produced, and the testimony of the owner indicated a dispute over possession. The analysis highlighted the insufficiency of evidence to link the accused to the room where contraband was found. (Paras 12-15)
Issue of Consideration
Whether the prosecution has established that the accused were in exclusive possession of the Room and were conscious of the contraband being in their possession?
Law Points
- exclusive possession
- conscious possession
- documentary evidence
- burden of proof
- NDPS Act
- section 50 compliance
Case Details
2005 LawText (BOM) (04) 82
Criminal Appeal No.1121 of 2002 and Criminal Appeal No.269 of 2002
Mr Arfan Sait, Mr Ayaz Khan, Mr D.P. Adsule
Mohammed Fasi @ Fasil @ Bablu Ismail Shaikh and Shaikh Salim Shaikh Amir
The State of Maharashtra (at the instance of Anti Narcotic Cell, C.B.C.I.D., Mumbai, C.R.No.22/99)
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Nature of Litigation
Criminal appeals challenging conviction under Narcotic Drugs and Psychotropic Substances Act, 1985
Remedy Sought
Appellants sought acquittal and setting aside of the judgment and order of conviction dated 11/01/2002
Filing Reason
Conviction by Special Judge, NDPS Special Case No.217 of 1999, on charges of criminal conspiracy and possession of 20 kg of charas
Previous Decisions
The appellants were convicted by the Special Judge for offences punishable under Section 8(c) read with 29 and 8(c) read with 20(b)(ii) of the NDPS Act, and sentenced to rigorous imprisonment for 10 years and fine of Rs 2 lakhs each, with default sentence.
Issues
Whether the prosecution established exclusive and conscious possession of the room and contraband by the accused?
Submissions/Arguments
Appellants argued false implication; Accused No.2 claimed he was picked up on 20/02/1999 and not present at the spot, forced to sign panchanama; Accused No.1 contended he was not in possession of the room and no inquiry was made into actual possession; No documentary evidence of exclusive possession; No statement under Section 67 NDPS Act; Discrepancies in Chemical Analyser’s report; Compliance of Sections 42 and 50 not seriously challenged.
State argued accused were apprehended at the spot, procedure under Sections 42 and 50 followed, chemical analysis confirmed charas, and prosecution established commission of offence beyond reasonable doubt.
Judgment Excerpts
the only question which needs to be considered is : whether the prosecution has established that the accused were in exclusive possession of the Room and were conscious of the contraband being in their possession?
no serious efforts have been taken by him to find out who is the real owner of the Room as no evidence has been brought on record to indicate as to when the accused No.1 was in possession of the said premises.
P.W. 5 has produced the receipt of MHADA dated 4/4/2000 for payment
Procedural History
On 21/02/1999, after receiving information, a raid was conducted at Room No.200, Bharat Nagar, Bandra (East), Mumbai, and 20 kg of charas allegedly seized. FIR lodged. After investigation, charge-sheet filed in NDPS Special Case No.217 of 1999. Charges framed under Sections 8(c) read with 29 and 20(b)(ii) NDPS Act. Accused pleaded not guilty. Trial conducted; prosecution examined 9 witnesses, accused No.2 examined 4 defence witnesses. By judgment and order dated 11/01/2002, Special Judge convicted both accused and sentenced them to 10 years RI and fine. Accused No.1 filed Criminal Appeal No.1121 of 2002 through jail; Accused No.2 filed Criminal Appeal No.269 of 2002. Both appeals heard together by Bombay High Court.
Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985: 8(c), 20(b)(ii), 29, 42, 50, 67
- Code of Criminal Procedure, 1973: 428
