N.D.P.S. Act; Gurvinder Singh Vs. State of West Bengal [Calcutta High Court, 02-08-2016]

Narcotic Drugs and Psychotropic Substance Act, 1985 – Section 54 – Conscious Possession – trafficking of contraband article in a truck – Ganja – truck driver tried to go away violating the signal – truck was found loaded with jute but smell like Ganja – On search it was detected that there is an extra chamber behind the driver’s cabin wherefrom smell of Ganja was coming out – 58 packets of Ganja was recovered – quantity is 540 kilograms and 700 grams –  whether the seized Ganja was recovered from conscious possession – Held, accused failed to establish that he had no knowledge about existence of extra chamber containing huge quantity of Ganja behind the driver’s cabin in the truck even when said fact was proved by prosecution beyond reasonable doubt adducing sufficient evidence and it was specifically brought to the notice of the accused at the time of his examination under Section 313 of the Code of Criminal Procedure, 1973 – the circumstances explained to accused are sufficient for understanding of the accused that according to evidence the prosecution claimed conscious possession of Ganja with the accused – accused was rightly found guilty of the charge under Section 20 (b) (ii) (c) of the N.D.P.S. Act and adequate punishment was awarded to him in the impugned judgment – no miscarriage of justice has been occasioned by the impugned judgment – As a result, this appeal fails and the impugned judgment of conviction and sentence is confirmed.

# Ganja


IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

THE HON’BLE JUSTICE ANIRUDDHA BOSE AND THE HON’BLE JUSTICE SANKAR ACHARYYA

Judgment on : 02.08.2016

C.R.A. 353 of 2008

Gurvinder Singh Vs. The State of West Bengal & Ors.

For the appellants : Mr. Sanjit Singh, advocateFor the state : Mr. Subir Banerjee, Ld. A.P.P.; Mr. Jayanta Banerjee, advocate.

SANKAR ACHARYYA, J.

This appeal has been filed by accused-appellant challenging the judgment and orders of conviction dated 03.04.2008 and sentence dated 04.04.2008 passed by learned Additional Sessions Judge cum Judge, Special Court under the

# Narcotic Drugs and Psychotropic Substance Act

(in short N.D.P.S. Act) 1985,

Cooch Behar in G.R. Case No. 345/05 under Section 20 (b) (ii) (c) of the N.D.P.S. Act, 1985. In the impugned judgment the accused was found guilty of the charge under Section 20 (b) (ii) (c) of the N.D.P.S. Act, 1985 and sentenced to suffer rigorous imprisonment for 12 years and to pay fine of Rs.1,50,000/- and in default of payment of fine to suffer simple imprisonment for two years more. Order has been passed for confiscation of the seized property to the State.

Inter alia, the appellant has contended in the petition of appeal that the appellant has been seriously prejudiced by the impugned judgment and the impugned judgment is liable to be set aside. It has been contended that the provisions of Sections 42, 43, 50 and 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 had not been complied with causing miscarriage of justice. The appellant has claimed that the prosecution failed to prove conscious possession of the alleged Ganja against the accused-appellant. The appellant has alleged that the impugned judgment is bad in law and liable to be set aside. The appellant remains in judicial custody since passing of the impugned judgment.

In the trial Court the prosecution case was that on the basis of a source information on 28.11.2005 S.I. Joydeb Ghosh as Officer- in-Charge of Boxirhat P.S., Cooch Behar alongwith police force rushed to Taraganj Bridge to work out the information relating to trafficking of contraband article in a truck. They signalled one truck bearing No. NL/04D/3847 to stop but the truck driver tried to go away violating the signal. The police personnels chased and apprehended the truck and its driver. On interrogation the truck driver made different statements regarding contents of loaded truck. Primarily the truck was found loaded with jute but smell like Ganja was coming out from the truck. A serious suspicion arose in the mind of the police personnels due to such smell and behaviour of the driver. They detained the truck and the driver Gurvinder Singh (appellant herein) and took the truck and the driver to a field of Swamiji Sangha Club in the vicinity of the P.S. Boxirhat. Police informed the S.D.O., Tufanganj to depute one Executive Magistrate and also informed the fact to superior police officer that is Circle Inspector (Sadar), Cooch Behar. Subsequently, Executive Magistrate Sajal Kanti Das and the Circle Inspector reached there and in their presence search of the intercepted truck was done by police of Boxirhat P.S. On search it was detected that there is an extra chamber behind the driver’s cabin wherefrom smell of Ganja was coming out. Said cabin was kept concealed under jute bales. Under direction of the Executive Magistrate the upper cover of that extra chamber was broken and police recovered 58 packets of Ganja which were subsequently weighed and found it as 540.700 kgs. Said Ganja, truck, the wooden cover of extra chamber made of wood and tin and jute bales were seized by police in presence of Executive Magistrate and Circle Inspector and three local witnesses. Sample was collected in three packets from the seized Ganja and the said packets were sealed and labelled. The appellant Gurvinder Singh was arrested by police. Said S.I. Joydeb Ghosh lodged FIR at Boxirhat P.S. on 28.11.2005 and the case was investigated by police officers Debabrata Jha (PW 18) and then Dhananjay Roy (PW 19).

During investigation sample of seized Ganja was examined by chemical examiner in Forensic Science Laboratory and the seized contraband article was confirmed as Ganja. Before lodging FIR photographs of the seized articles and of the accused were taken by PW 13 and said photographs were seized by PW 18. A sketch map of the place of occurrence was drawn by PW 18. Documents of the seized vehicle were seized under a seizure list. Documents relating to the consignment, vehicle and value added tax were also seized. Malkhana Register of Boxirhat P.S. (exhibit- 12) was also seized by PW 18. Witnesses were examined and their statements were recorded underSection 161, Cr.P.C. by PW 18 or PW 19 during investigation. The PW 19 collected the F.S.L. report and on completion of investigation submitted charge-sheet.

During trial, prosecution examined nineteen witnesses including informant Joydeb Ghosh as PW 1, Executive Magistrate Sajal Kanti Das as PW 2 and Circle Inspector Tapan Kumar Chattopadhyay as PW 3. The police personnels of raiding party were examined as PW 5, PW 8, PW 9, PW 10, PW 11 and PW 12. Prosecution examined local witnesses PW 4, PW 6 and PW 7 as witnesses of recovery and seizure of contraband article (Ganja) and its weighment. PW 6 and PW 7 are witnesses regarding collection of sample and labelling the same. PW 13 took the snaps of photographs. PW 14 and PW 15 are the witnesses about loading the jute bales in the truck. PW 16 was neither examined nor cross- examined. PW 17 supplied the seized truck as the appellant went to PW 7 and told him that he was ready to carry articles. Accordingly, PW 17 supplied that truck to the consignor Purbanchal Traders for carrying jute for transportation to Howrah Jute Mill. The accused was examined under Section 313, Cr.P.C. On interrogation for explaining the incriminating evidence against him and giving option to him for adducing defence evidence (vide question 53) the accused claimed the prosecution case is false and he declined to adduce evidence.

At the time of hearing of this appeal learned counsel for the appellant submitted that the prosecution failed to prove its case against the appellant and the appellant is liable to be acquitted. He further submitted that conscious possession of the appellant of seized article was not proved and the appellant as accused is entitled to get its benefit. He argued that during examination of accused under Section 313, Cr.P.C. he was not asked about his conscious possession of Ganja. He relied on an unreported decision of the Hon’ble Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. – 577-SB of 2002 and Criminal Appeal No. 5885-SB of 2002 decided on January 14, 2014 in the cases of Sukhdev Singh Vs. State of Punjab and Mohd. Karim Vs. State of Punjab respectively. He further submitted that non-compliance of the provisions of Sections 42, 43, 50 and 53 of the N.D.P.S. Act was not properly considered by the trial Court. He pointed out that the sample was collected from three seized packets out of 58 packets and out of three sample packets only one packet was sent to F.S.L. for chemical examination and, therefore, it cannot be held that all the 58 seized packets contained Ganja. He claimed that opportunity was not given to the accused appellant for adducing defence evidence. He submitted for setting aside the impugned judgment of conviction and sentence.

On the other hand, learned Additional Public Prosecutor for the State advanced his arguments that although there was no personnel search of the accused-appellant yet the search, seizure and arrest was done in presence of Executive Magistrate (PW 2) and superior police official-Circle Inspector (PW 3). He drew our attention to the evidence of independent witnesses relating to search, seizure, collection of sample and labelling the same. According to him, the prosecution successfully proved that the seized Ganja was under conscious possession of the accused- appellant which could not be disproved by the appellant under Section 35 of the N.D.P.S. Act, 1985. He further submitted that the seized article was proved as Ganja beyond reasonable doubt as per report of the Forensic Science Laboratory. He submitted that examination of the chemical examiner as a witness is not necessary under Section 293 of the Code of Criminal Procedure. He relied upon four decisions of the Hon’ble Supreme Court of India in the cases of, Megh Singh Vs. State of Punjab reported in (2003) 8 Supreme Court Cases 666, Dharampal Singh Vs. State of Punjab with Major Singh Vs. State of Punjab reported in (2010) 9 Supreme Court Cases 608, Mohan Lal Vs. State of Rajasthan reported in (2015) 6 Supreme Court Cases 222 and Kulwinder Singh and Another Vs. State of Punjab reported in (2015) 6 Supreme Court Cases 674. Learned counsel for the State submitted that there was no violation on the part of prosecution of the provisions of Sections 42, 43, 50 and 53 of the N.D.P.S. Act as argued by learned counsel for the appellant. He also submitted that it may be considered that the investigation work of the Investigating police Officer was not done up to the mark but flaw on his part in investigating the case due to failure on his part for inclusion of penal provisions under the Motor Vehicles Actagainst the accused without causing harm to the substance of the prosecution case under theN.D.P.S. Act, 1985 cannot be a ground for letting a guilty person unpunished.

On scrutiny, it appears from the record of the trial Court that since inception of the case nobody turned up claiming ownership of the seized truck with any prayer for return of the same. The consignor of the jute bales made prayers in the first Court for return of the seized jute bales on several occasions and on each occasion such prayer was rejected and on the last occasion order was passed on 28.08.2007 for confiscation of the seized jute to the State.

Having gone through the impugned judgment it appears that evidence of all the witnesses of the prosecution have been considered by the trial Court. We have independently gone through the evidence adduced by the prosecution and the result of examination of the accused-appellant under Section 313, Cr.P.C.

Exhibit 11 speaks that a source information was received at Boxirhat P.S. on 28.11.2005 at 12:15 hours to the effect that one truck was being proceeded from Assam side loading contraband article and jute towards Kolkata. Said information was given by the duty officer of police station to the Officer-in-Charge of the police station. Then at 12:25 hours of that date the Officer-in-Charge S.I. Joydeb Ghosh (PW 1) recorded exhibit 11/1 G.D. Entry No. 1227 dated 28.11.2005 to the effect that he alongwith PW 9, PW 11, PW 12, PW 10, PW 5, PW 8 and one constable Chandan Roy left the police station for Taraganj Bridge to work out the information as recorded in exhibit- 11. PW 1, PW 5, PW 8, PW 9, PW 10, PW 11 and PW 12 have deposed almost in the same tune as to how the information was worked out. As per said evidence on 28.11.2005 at about 1:15 p.m. the said raiding team under the leadership of PW 1 noticed that the truck bearing No. NL-04D/3847 was coming from Assam side. The raiding team signalled the driver of that truck to stop but violating the signal the driver tried to flee away driving the truck. The police team chased the truck and detained it near Taraganj Bridge. On interrogation the driver made different statements about the contents of the truck. There was no other person present in that vehicle. The raiding team got smell of Ganja was coming from the truck the cause of which could not be explained by the driver. Then the raiding team brought the truck near Boxirhat Police Station to a field of Swamiji Sangha. PW 1 informed the S.D.O. to depute one Magistrate to remain present at the spot and PW 1 also informed Circle Inspector who is an official superior to PW 1. Thereafter, PW 2 and PW 3 came to the spot at about 5 p.m. They were taken to the field of Swamiji Sangha where the intercepted truck loaded with jute and the driver of that vehicle were kept under police guard. Under direction of PW 2 the jute of the truck was unloaded and an extra chamber behind the driver’s cabin was detected wherefrom smell of Ganja was coming out. Under order of PW 2 said extra chamber was broken and 58 packets of Ganja was recovered in presence of accused driver (appellant herein) and PW 2, PW 3 and local witnesses. Thereafter, the Ganja was weighed and it was found that the quantity is 540 kilograms and 700 grams. Then the seizure was made and the driver of the vehicle was arrested. Said driver was made sole accused in the case and he is the appellant in this appeal. We are satisfied that the FIR which has been marked exhibit- 2 and 3 and the seizure list which has been marked exhibit- 1 fully corroborate the facts stated by the witnesses. Presence of PW 2 and PW 3 during search of the truck, seizure as alleged by the prosecution and arrest of the accused-appellant is well-proved by PW 2 and PW 3 and their signatures with endorsement (exhibit- 1/1) and (exhibit- 1/2) respectively on the seizure list which was marked exhibit- 1. It is evident that the truck was intercepted on a public road and the search and seizure was made in a public place. Therefore, although there was compliance ofSection 42 of the N.D.P.S. Act but it was not essential. In view of our observation made in the foregoing paragraph we hold that there was not any non-compliance of the provisions underSection 42 and 43 of the N.D.P.S. Act causing any prejudice to the accused appellant. We also follow the discussion made in the case of Mohan Lal Vs. State of Rajasthan (Supra) which we set out –

“In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to comply with sub- sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to the public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non-compliance with Section 42(2) does not arise. The aforesaid view gets support from the decisions in Directorate of Revenue v. Mohd. Nisar Holia and State (NCT of Delhi) v. Malvinder Singh”.

We are satisfied that the PW 1 was a Sub-Inspector and Officer-in-Charge of Boxirhat Police Station at the relevant time and he was competent to hold the process of search, seizure and arrest which were done by the PW 1. According to the evidence of exhibits- 11 series and exhibits- 1, 2 and 3 read with the deposition of the witnesses we are satisfied that there was sufficient reason for the PW 1 to believe, on the basis of exhibits- 11 and 11/1 and interception of the truck bearing No. NL-04D/3847 and attempt of the driver to flee away violating signal of police team and getting smell of Ganja from the loaded articles of the truck, that contraband Ganja was being carried by the truck and such carrying was not properly explained by the accused driver. It is significant to note that there was no case of personal search of the accused driver according to the prosecution case. From the totality of evidence adduced by prosecution we do not find any violation of any provision of Section 42 or Section 43or Section 50 of the N.D.P.S. Act, 1985 as argued by learned counsel for the appellant. In Megh Singh Vs. State of Punjab (Supra) it was held, “A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises”. Referring to the said decision similar view was expressed in Kulvinder Singh and Another Vs. State of Punjab (supra).

We like to reiterate that the PW 1 himself was the Officer-in- Charge of Boxirhat P.S. at the relevant time and under his leadership the search, seizure and arrest was done according to the case of prosecution. PW 18 and PW 19 as Sub-Inspectors of Boxirhat P.S. held investigation of the case one after another under direction of the Officer-in-Charge of the police station. There is nothing on record before us to hold that the said police officers were not competent to investigate the case according to the provisions of Section 53 of the N.D.P.S. Act, 1985.

Having gone through the exhibit- 4 seizure list read with deposition of PW 18 regarding seizure of exhibit- 6 series photographs which were snapped by PW 13 we find corroboration of the facts of recovery and seizure as claimed by the prosecution. It is significant to note that the exhibit- 6 series sufficiently proves presence of the accused as claimed by the prosecution. It is significant to mention that the photograph of the accused appearing in the said photographs was not denied at the time of trial.

Regarding submission of learned counsel for the appellant relating to collection of sample of seized article and its sending to F.S.L. for chemical analysis we find that one sample packet was sent to Forensic Science Laboratory for examination and on examination it was found to be Ganja. We are satisfied to accept the arguments of learned counsel for the State that exhibit- 13 has been lawfully admitted in evidence under Section 293 of the Code of Criminal Procedure even without examining the Assistant Chemical Examiner K. Chowdhury. Explanation has been given in exhibit- 12 Malkhana Register that out of three sample packets of Ganja, one sample packet weighing 150 grams was sent to F.S.L. and other two packets were kept with seized Ganja in Malkhana. This explanation appears to us satisfactory about sending one sample packet for chemical analysis and its examination in Forensic Science Laboratory where it was found to be Ganja. The entire seized 58 packets were kept in Malkhana all along till disposal of the case in the trial Court but there was no attempt on the part of the accused for second examination of any portion of the seized article in any Forensic Science Laboratory for disproving the result of exhibit- 13 or to prove that there was something else and not Ganja in any seized packet.

In connection with claim of prosecution regarding conscious possession of the offending truck it may be pointed out that according to PW 17, he has transport business and on 23.11.2005 the driver (identified the accused-appellant) of the vehicle went to PW 17 and told that he was ready to carry articles if any. PW 17 further stated that as per requisition of the consignor of Purbanchal Traders he told the driver of the vehicle bearing No. NL 04D/3847 for carrying their jute which was supposed to be transported to Howrah Jute Mill. On being satisfied about the documents of the vehicle PW 17 sent the vehicle to Purbanchal Traders and 65 bales of jute was loaded on the truck in presence of the driver. Loading of the truck with 65 bales of jute in Assam in presence of the driver was also proved by PW 14 and PW 15 who acted as labourers for loading the truck at Kharupetia, Assam in the godown of one Pankaj Saha. Both the PW 14 and PW 15 identified the accused- appellant as was the driver of the vehicle at the relevant time. It appears from the records of the trial Court that Pankaj Saha as proprietor of Purbanchal Traders made prayers for return of seized jute bales and his prayers were rejected.

On the question as to whether the seized Ganja was recovered from conscious possession of the appellant or not we are satisfied that prosecution successfully proved during trial that the loaded truck was intercepted by police and at the relevant time the appellant was driving the truck and except the appellant none else was present in that truck at that time as stated by PW 1. During trial appellant denied the fact of his driving the vehicle but considering the totality of depositions of the witnesses we find no foundation of such denial. We believe that at the time of apprehending the truck bearing No. NL 04D/3847 said truck with its loaded articles was under exclusive control of the appellant. At that time an extra chamber made of wood and tin behind the driver’s cabin existed and it was kept concealed under jute bales.

It is evident from the depositions of the witnesses who were in the raiding team of police and the Executive Magistrate (PW 2) and witnesses of the locality who were examined as PW 6 and PW 7 that an extra chamber behind driver’s cabin of the truck was broken by police under direction of PW 2 and breaking open the upper cover of that chamber 58 packets of Ganja was recovered. Significantly, the existence of that extra chamber behind the driver’s cabin was not challenged during cross-examination of said witnesses. Such existence is obvious from the photographs which have been marked exhibit- 6 series. From the totality of evidence on record it cannot be said that the appellant was not aware of the extra chamber behind the driver’s cabin of the truck. He did not give any explanation about that chamber. It was also proved beyond reasonable doubt that said extra chamber was kept concealed under jute bales and that the jute bales were loaded in the truck on 23.11.2005 in presence of the accused-appellant. There is no explanation on the part of the accused-appellant why the loaded jute of 23.11.2005 was being transported after four days on 28.11.2005. It goes against the accused-appellant. Having gone through the result of examination of accused-appellant it is crystal clear that the accused was given to understand the allegations and evidence brought by the prosecution that he was found with his conscious possession of 540 kilograms and 700 grams of Ganja and he was arrested and his truck and the contents of the truck were seized by police of Boxirhat P.S. on 28.11.2005 due to failure of the accused to explain his such possession of contraband articles.

‘Conscious possession’ has not been defined in the N.D.P.S. Act, 1985. Section 54 of that Act deals with presumption from possession of illicit articles. Said Section reads as,

“In trials under this Act, it may be presumed, unless and until the contrary is proved, that 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 apparatus 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”.

Regarding presumption of culpable mental state the statutory provision of Section 35, N.D.P.S. Act, 1985 is –

“(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 that 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”.

In this case under appeal the accused-appellant failed to establish that he had no knowledge about existence of extra chamber containing huge quantity of Ganja behind the driver’s cabin in the truck even when said fact was proved by prosecution beyond reasonable doubt adducing sufficient evidence and it was specifically brought to the notice of the accused-appellant at the time of his examination under Section 313 of the Code of Criminal Procedure, 1973.

Having gone through the unreported decision of Punjab and Haryana High Court in Sukdeb Singh Vs. State of Punjab and Mohd. Karim Vs. State of Punjab (supra) it appears that in the said case independent witnesses were not examined but in the case under this appeal independent witnesses were examined by prosecution and said witnesses deposed against the appellant. It is reiterated here that during examination of accused he was put questions giving him sufficient opportunity to understand that he was facing trial for his conscious possession of contraband articles (huge quantity of Ganja) and evidence was led by prosecution in support of that. In our opinion the ratio of the said unreported decision does not at all help the accused appellant as claimed in the light of the provisions under Sections 35 and 54 of the N.D.P.S. Act, 1985.

‘Conscious possession’ has been elaborately dealt in Meghraj Singh Vs. State of Punjab (supra). In that case the Hon’ble Apex Court held,

“Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles”.

Said principle is squarely applicable in the case under the instant appeal according to the facts, circumstances and evidence brought by prosecution in the trial Court.

In (2015) 6 SCC 674 (supra) it was held, “The word ‘conscious’ means awareness about a particular fact. It is a state of mind which is deliberate”.

It was further held, “The word ‘possession’ means the legal right to possession (see Health V. Drown). In an interesting case it was observed that where a person keeps his firearm in his mother’s flat which is safer than his own home, he must be considered to be in possession of the same.

(See Sullivan V. Earl of Caithness)”.

In the said case two paragraphs of the decision in the case of Mohan Lal V. State of Rajasthan (Supra) have been quoted which we also quote:-

“21. From the aforesaid exposition of law it is quite vivid that the term ‘possession’ for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the ‘chattel’ i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others.

22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion”.

Having gone through the result of examination of accused under Section 313 Cr.p.C. recorded during trial it appears to us that the circumstances appearing against the accused-appellant in evidence of prosecution were brought to the notice of the accused giving him opportunity to explain and he denied the truth of the case of prosecution. In our view the circumstances explained to accused are sufficient for understanding of the accused that according to evidence the prosecution claimed conscious possession of Ganja with the accused. We find nothing to hold that during trial the accused was prejudiced in any manner or failure of justice occasioned. In the case of Dharampal Singh Vs. State of Punjab (supra) in paragraph – 21 the Hon’ble Apex Court held –

“As a fair trial, Section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstance appearing against him in the evidence adduced by the prosecution. The purpose behind it is to enable the accused to explain those circumstances. It s not necessary to put the entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the Court in evaluating the evidence properly. The circumstances are to be put and not the conclusion. It is not an idle formality and questioning must be fair and couched in a form intelligible to the accused. But it does not follow that omission will necessarily vitiate the trial. The trial will be vitiated on this score only when on fact it is found that it had occasioned a failure of justice”.

In the instant case, on perusal of the materials brought on record during trial, and the impugned judgment we find that the accused-appellant was rightly found guilty of the charge under Section 20 (b) (ii) (c) of the N.D.P.S. Act and adequate punishment was awarded to him in the impugned judgment. In our view no miscarriage of justice has been occasioned by the impugned judgment against the appellant.

As a result, this appeal fails and the impugned judgment of conviction and sentence is confirmed.

A copy of this judgment alongwith L.C.R. be sent to the trial Court.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record in compliance of usual formalities.

I agree.

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