Case Note & Summary
The case involves two Iranian nationals, Mohamound Mehri Allahyari (original accused No.2) and Rajabali Nejad Dehghan (original accused No.1), who were convicted by the Special Judge in Special Case No. 53 of 2004 for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). On 28th/29th February 2004, officers of the Air Intelligence Unit of Customs at Sahar Airport noticed the two accused carrying three heavy zipper suitcases towards the check-in counter of Emirates Airways. Suspecting their nervous movements, the officers examined the baggage and allegedly recovered heroin. The appellants were arrested and charged. The trial court convicted them, and they appealed to the Bombay High Court. The core legal issue was whether the appellants were in conscious possession of the contraband. The appellants argued that they were merely carrying the suitcases for someone else and had no knowledge of the contents. The prosecution relied on the presumption under Section 35 of the NDPS Act. The High Court, after re-appreciating the evidence, held that the prosecution had failed to prove beyond reasonable doubt that the appellants had knowledge of the heroin. The court noted that the appellants were Iranian nationals who had come to India for business and were to board a flight to Dubai. There was no evidence that they had any prior involvement with drugs or that they acted suspiciously beyond being nervous. The court found that the presumption under Section 35 was rebutted by the appellants' consistent denial and the lack of any incriminating circumstances. Consequently, the court allowed the appeals, set aside the conviction and sentence, and acquitted the appellants.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Conscious Possession - Section 20(b)(ii), Section 35 - Burden of Proof - The appellants were convicted for carrying heroin in suitcases. The court held that mere physical possession without knowledge of the contraband does not constitute conscious possession. The prosecution failed to prove that the appellants knew the suitcases contained heroin. The presumption under Section 35 was rebutted by the appellants' consistent denial and lack of incriminating circumstances. (Paras 1-10) B) Criminal Procedure Code, 1973 - Appeal against Conviction - Section 374 - Appellate Court's Power - The High Court, in appeal, re-appreciated the evidence and found that the trial court had erred in convicting the appellants. The court set aside the conviction and sentence, acquitting the appellants. (Paras 1-10)
Issue of Consideration
Whether the appellants were in conscious possession of the contraband (heroin) found in the suitcases, and whether the prosecution had discharged its burden of proof beyond reasonable doubt.
Final Decision
Both appeals allowed. Conviction and sentence set aside. Appellants acquitted.
Law Points
- Conscious possession
- Burden of proof on prosecution
- Circumstantial evidence
- Knowledge of contraband
- Section 35 NDPS Act presumption rebuttable
