Papu Ali Vs State of Assam

For the Appellant : Mr. R. Dev, Advocate. For the Respondent : Ms. A. Begum, Addl. P.P., Assam. Date of hearing : 18.11.2025. Date on which the judgment is reserved : N/A. Date of pronouncement of judgment : 18.11.2025 . Whether the pronouncement is of the operative part of the judgment : No. Whether the full judgment has been Pronounced : Yes.

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JUDGMENT &ORDER (Oral)

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Heard Mr. R. Dev, learned counsel appearing for the appellant. Also

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heard Ms. A. Begum, learned Additional Public Prosecutor, Assam appearing for the State respondent.

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This Criminal Appeal is directed against the judgment and order of conviction and sentence dated 29.03.2014 passed by the learned Sessions Judge, Golaghat in Special (NDPS) Case No.01/2011 whereby the accused/appellant was convicted under Section 20(b)(ii)(B) of the NDPS Act, 1985 and sentenced to undergo rigorous imprisonment for 5 (five) years and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand), in default, to suffer further rigorous imprisonment for another one year.

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The prosecution case, in brief, is that on 19.07.2010, the Officer-in-Charge of Bokakhat Police Station lodged an F.I.R. alleging inter-alia that on 11.05.2010 upon receiving information from secret source a search was conducted in a 709 Bus bearing Registration No.AS-05-A/6774 and after conducting search 20 kg 800 gms. of suspected ganja in two packets was recovered from the possession of the accused/appellant. Accordingly, a case was registered under Section 22 of the NDPS Act.

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Upon charge-sheet being submitted after conclusion of the investigation, the trial commenced. During trial as many as 7 witnesses were examined including one Officer from the Forensic Science Laboratory (PW-4) and the Investigating Officer (PW-7). After completion of trial, all the incriminating circumstances were put to the accused/appellant during his examination under Section 313 Cr.P.C. wherein he generally denied the allegations. However, he did not adduce any evidence in support of his defence. Upon

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conclusion of trial, the learned Trial Court convicted the accused/ appellant under Section 20(b)(ii)(B) of the NDPS Act and sentenced as aforesaid. Situated thus, the present appeal has been filed.

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Mr. R. Dev, learned counsel for the accused/appellant submits that the prosecution failed to establish that the bag containing the contraband belongs to the accused/appellant and therefore, the element of possession is not proved. He further submits that the learned Trial Court has wrongly convicted the accused/appellant under Section 20(b)(ii)(B) of the NDPS Act without appreciating the evidence on record both oral and documentary in its proper perspective. He further submits that PW-2 while deposing his evidence appeared to have departed from his initial statement recorded by police under Section 161 Cr.P.C. He further submits that PW-2 admitted in crossexamination that he put his signature on the seizure-list at the Police Station which cast a heavy doubt on the whole procedure of search and seizure of the contraband articles. He further submits that the learned Trial Court ignored the cross-examination of the PW-2 wherein he clarified that he did not see what type of luggage the accused/appellant was carrying at the time of boarding the bus. He further submits that the learned Trial Court failed to notice the contradictory deposition of PW-1 and PW-7 with respect to the weight of alleged seized contraband articles. He accordingly submits that the impugned conviction and sentence warrants interference from this Court.

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Per contra, Ms. A. Begum, learned Additional Public Prosecutor for the State submits that the evidence brought on record clearly establishes the guilt of the accused/appellant beyond reasonable doubt. She further submits that in an offence of such nature under the NDPS Act, the prosecution has to prove those circumstances beyond reasonable doubt so as to give rise to a presumption under Section 35 of the NDPS Act against the accused/appellant. She further submits that since the accused/appellant has not rebutted the presumption in law having been arisen against him in view of the circumstances proved by the prosecution, the conviction and sentence impugned warrants no interference from this Court.

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I have given my prudent consideration to the arguments advanced by the learned counsel appearing for the parties and have perused the materials available on record.

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The issue for determination in this appeal is whether the prosecution has proved beyond reasonable doubt that the accused/appellant was in conscious possession of the contraband seized from the bag produced by him, thereby attracting 20(b)(ii)(B) of the NDPS Act?

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A careful scrutiny of the testimonies of PWS-1, 2, 5 and 6, who are the

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eye-witnesses in the instant case, reveals consistent and cogent narrative establishing the following facts:-

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(1) The accused/appellant was travelling in the passenger bus bearing registration No.AS-05A/0774 plying from Dimapur towards Tezpur.

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(2) At Methoni near Bokakhat, the bus was stopped by the police on the basis of secret information. The police checked the bus and the accused/appellant himself put the bag in question before the police.

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(3) The said bag when opened was found to contain package of suspected cannabis (ganja).

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(4) These witnesses have categorically identified the accused/ appellant who was present in the bus at the relevant time.

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(5) The accused/appellant has signed the seizure-list (Ext-3) in presence of the seizure witnesses.

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PW-1, who has a shop near the Bokakhat Police Station, deposed before the Court that he was called to the Police Station to weigh the packets and that the packets seized from the accused/appellant weighed around 2 kg. each. His testimony corroborates the quantity and nature of the seized substance. PW-2, who is the driver of the bus in question, identified the accused/appellant as the person who boarded the bus with a black colour bag and narrates that the accused handed over the bag to the police during search. His cross-examination clearly shows no challenge to the fact that the accused/appellant was travelling in the bus. PW-3, who is the son of the owner

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of the bus in question, deposed that when he was called to the Police Station, he saw the bag and the packets kept on the table. He identified his signature on the seizure-list. PW-5, who is an independent passenger of the bus in question, deposed that upon search the accused/appellant was brought down along with the bag. He confirms the presence of the accused/appellant and the recovery of the cannabis contained in the bag. PW-6, who is another passenger of the bus in question, deposed that after the police stopped the bus near a Tea Garden, they checked the bus and after unbording them found the cannabis inside the bus.

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PW-7, who is the Investigating Officer, clearly stated in his deposition before the Trial Court that he received secret information to the effect that a person was travelling on the 709 bus and was transporting cannabis. He further deposed that on checking the bus the accused/appellant was found with the bag containing the contraband. He further deposed that two packets of cannabis weighing approximately 20 kg 800 grams were recovered from the possession of the accused/appellant. He further deposed that the contraband were seized, marked and sent to the Forensic Science Laboratory for examination. He further deposed that the FSL report confirms the substance as cannabis and that after conclusion of investigation he submitted the chargesheet. His evidence appears to be firm and unshaken during crossexamination.

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It appears that not a single prosecution witness was cross-examined on the vital defence taken in Section 313 Cr.P.C. by the accused/appellant, namely, that the accused/appellant did not board the bus at all. In fact, the prosecution witnesses specifically stated that the accused/appellant boarded the bus, was present inside the bus, produced the bag voluntarily and signed the seizure-list. However, the defence did not put any suggestion disputing these facts. It is well settled that when incriminating evidence is not challenged in cross-examination, such evidence remains unrebutted and can be safely relied upon.

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Section 35 of the NDPS Act reads as follows :-

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“ Section 35. Presumption of culpable mental state.--

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(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 the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

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Explanation.-- In this section "culpable mental state" includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.

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(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.”

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From a reading of the aforesaid provision of law it is apparent that once

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possession of the contraband is established, the Court shall presume that the

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accused had the requisite culpable mental state unless the contrary is proved by the accused. In the present case, possession of the contraband articles by the accused/appellant is proved by the consistent evidence of PWs-1, 2, and

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Likewise, the recovery from the bag produced by the accused/ appellant, signature of the accused/appellant on the seizure-list, identification by all material witnesses is also established by the prosecution. The accused/appellant has failed to rebut the presumption either through defence evidence or suggestions in cross-examination. Therefore, Section 35 squarely applies and the possession must be treated as conscious possession.

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What transpires from the above is that the accused/appellant was indeed travelling in the bus at the relevant time. He was carrying the bag from which the contraband was recovered. He voluntarily produced the bag to the police during the search. He signed the seizure-list acknowledging the seizure. The FSL report confirms that the substance is ganja. The defence plea is totally unsupported by cross-examination or evidence. The presumption under Section 35 of the NDPS Act stands unrebutted. The prosecution is thus, successful in establishing the possession of 4 kg’s of ganja by the accused/appellant beyond reasonable doubt.

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In view of the above findings, this Court is of the unhesitant view that the conviction recorded by the learned Trial Court vide the impugned judgment and order dated 29.03.2014 passed in Special (NDPS) Case No.01/2011 under

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Section 20(b)(ii)(B) of the NDPS Act is legal and proper. The sentence of rigorous imprisonment for 5 years and fine of Rs.20,000/- is in conformity with law and does not warrant any interference from this Court.

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