Senior Intelligence Officer, Vs Bhimilal Pandit — Narcotics (NDPS) | Madras HC (2025)

Senior Intelligence Officer, Vs Bhimilal Pandit — Narcotics (NDPS) | Madras HC (2025)

Crl.A. No.505 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.03.2025

CORAM :

THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP

Criminal Appeal No.505 of 2017

Senior Intelligence Officer, DRI, Chennai, No.27, G.N.Chetty Road, T.Nagar, Chennai – 600 017 .. Appellant/Complainant

Versus

Bhimlal Pandit

Ram Chander Pandit

Somnath Pal .. Respondents/Accused

Criminal Appeal filed under Section 377 (2) and 378 of Cr.P.C., praying to set aside the order of acquittal recorded by the learned Special Judge, Second Additional Special Court under NDPS Act, Chennai in C.C.No.41 of 2013, dated 25.11.2016.

For Appellant : Mr.N.P.Kumar Special Public Prosecutor For Respondents 1 & 2 : Mr.M.S.Charles for R-1 & R-2 For Respondent 3 : Mr.R.C.Paul Kanagaraj

J U D G M E N T

This Criminal Appeal has been filed to set aside the order of acquittal

recorded by the learned Special Judge, Second Additional Special Court under

NDPS Act, Chennai in C.C.No.41 of 2013, dated 25.11.2016.

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The brief facts, which are necessary for the disposal of this Criminal Appeal, are as follows:-

2.1. As per the case of the Prosecution, Thiru.C.Narasimman, Intelligence Officer in the Department of Revenue Intelligence of the Government of India had received phone message in his Office of the Department of Revenue Intelligence at T.Nagar, Chennai on 29.01.2013 at 10 a.m.

2.2. As per the information received on telephone in the Office of the Department of Revenue Intelligence at T.Nagar by Thiru.C.Narasimman, Intelligence Officer, the person who passed on the information informed that a parcel containing psychotropic substance had been booked from Delhi under the name of M/s. Rama Trading Company and forwarded to M/s. Balaji Enterprises, Chennai, through Railway Parcel Service which is cleared by M/s.Kamadenu Express Cargo Movers, Chennai. The contraband is handed over to one Shafi at Chennai through whom it is transported to foreign countries. The same information received by Thiru.C.Narasimman on 29.01.2013 at 10 a.m., through Official telephone which was recorded by Thiru.C.Narasimman in his Official records as written information on his computer and it was read over to the person who passed over the message. He

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confirmed it. This information was passed to his higher Official by Thiru.C.Narasimman under Ex.P-1. On the same day, at between 2.30 p.m., and 3 p.m., the Intelligence Officer of DRI along with two witnesses viz., Thanigai Kumaran, Kamalakannan and Kumaravadivel, Officers of DRI proceeded to the office of M/s.Kamadenu Express Cargo Movers at Wall Tax Road. They reached premises of M/s.Kamadenu Express Cargo Movers by 3.30 p.m., the person who was found in the Office of M/s.Kamadenu Express Cargo Movers identified himself as Bhimlal Pandit, owner of M/s.Kamadenu Express Cargo Movers. Thiru.C.Narasimman and Thiru.Kumaravadivel had introduced themselves as Officials of DRI and they had received information regarding transport of Cargo from Delhi to Chennai through M/s.Kamadenu Express Cargo Movers. Also, they requested Bhimlal Pandit to show them the parcel received from the Office at Delhi through Railway Parcel Services. Accordingly, Bhimlal Pandit had shown the register in Page No.82 and 83, dated 27.01.2013 showing the Cargo received in his Office bearing booking Slip No.84 dated 23.01.2013, which contain the parcel No.4723/2. Thiru.Bhimlal Pandit informed them that it was sent by M/s. Rama Trading Company from Delhi to M/s. Balaji Enterprises, Hunters Road, Chennai. The parcel mentioned was 53 Kg PVC Master Batch. Bhimlal Pandit had shown two boxes containing the same details. It was covered with a plastic cover

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mentioning the name of M/s.Rama Trading Company and M/s.Balaji Enterprises, Chennai on which the parcel number also mentioned as 4723/2. The Revenue Officials/Intelligence Officers of the Department of Revenue Intelligence had opened the parcel in the presence of Bhimlal Pandit. On opening the parcel, it was found inside the carton box, it contained white powdery substance in transparent polythene bags which resembles crystalline powder. Second box also was opened. On opening it was found containing transparent plastic bags in which crystalline powders were found. From both the carton boxes, the samples were taken and it was tested in the presence of Bhimlal Pandit by Intelligence Officer of DRI, Thiru.C.Narasimman by the test kit brought by Thiru.C.Narasimman in his Office. It was also weighed by him. Both boxes contains 25kg of crystalline powder. Therefore, 50 kg in total. On testing the sample through the test kit brought by Thiru.C.Narasimman, it was found to be Methaqualone which is a prohibited substance under the Narcotics and Psychotropic Substances Act. It was informed to Bhimlal Pandit and the signature of Bhimlal Pandit and two witnesses who were brought by Thiru.C.Narasimman. Signature of the witnesses were obtained by Thiru.C.Narasimman. On enquiry by Thiru.C.Narasimman with Bhimlal Pandit, Bhimlal Pandit informed Thiru.C.Narasimman that a person by name Shafi will come to his Office to collect the parcel. Thiru.C.Narasimman had

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collected samples from the first box as B-1 from which three small boxes were taken as B1S1, B1S2, B1S3. Similarly from the second box as B2 from which he had collected sample as B2S1, B2S2 and B2S3 each containing 25grams to be tested in the Laboratory of the Customs Department. All six samples were in siplock cover and it was sealed with DRI seal. After collection of samples, the remaining content weighing 49kg 850 gm and retained as B-1 and B-2. The carton boxes were retained separately and marked as B-3. The samples were sent to the Laboratory. Bhimlal Pandit was arrested by the Intelligence Officer and brought to his Office at T.Nagar. The entire Mahazar proceedings were completed. The accompanying Officials of the DRI, Jayaraman, Rathinavel, Balaji, Kumaravadivel had also attested the Mahazar. The invoice collected from the Office of M/s.Kamadenu Express Cargo Movers Limited was also seized. Booking slip was also seized. The information regarding arrest of Bhimlal Pandit was informed to his wife. Bhimlal Pandit and seized articles and document witnesses and the accompanying Officials reached the Office of DRI, T.Nagar and he was produced before the higher Officials of Intelligence Officer/Thiru.C.Narasimman at the Office of DRI, T.Nagar. On the orders of the Senior Officer of Intelligence Officer/Thiru.C.Narasimman, Bhimlal Pandit/the owner of M/s.Kamadenu Express Cargo Movers Limited and the seized articles were produced before the learned Judge under NDPS

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Act Cases, Chennai. The learned Special Judge under NDPS Act remanded the owner of M/s.Kamadenu Express Cargo Movers Limited. The next day ie., 31.01.2013, the Intelligence Officer of the DRI, Chennai had sent a report to his higher Officials under Section 57 of NDPS Act. On 01.02.2013, the information regarding remand of Bhimlal Pandit was intimated to his wife through telegram. The seized articles were produced before the Court of learned Special Judge, NDPS Act Cases, Chennai. On the Orders of the learned Special Judge, NDPS Act cases, the contraband articles were deposited in the godown of DRI and customs at Customs House in Chennai. The samples were submitted to chemical analysis in the Lab of DRI and Customs House, Chennai. The report received from the DRI and Customs Lab at the Customs House in Chennai stated that the seized contraband contained Ketamine tablets which is prohibited substance under NDPS Act. Also, Thiru.C.Narasimman, Intelligence Officer of DRI addressed the telecom provider regarding the Mobile Number of Shafi as furnished by Bhimlal Pandit and to provide the transcribe on correspondence between mobile number of Shafi and other persons. Also, Thiru.C.Narasimman, Intelligence Officer of DRI issued summons to the brother of Bhimlal Pandit, Ram Chander Pandit in his Delhi address. Also, the summon was served through the daughter of Bhimlal Pandit by her name Mamtha, she served on her uncle. Also, he requested the NDPS

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Court to issue warrant to Shafi and one Somnath Pual, the person who had booked the Cargo from Delhi.

2.3. On 24.12.2013, the brother of Bhimlal Pandit was arrested by DRI

from Delhi and he was produced before the Special Court for NDPS Act cases, Chennai on 25.12.2013. The learned Special Judge, Chennai had remanded Ram Chander Pandit. The DRI had also arrested Somnath Pal and he was produced before the learned Magistrate at Delhi and on PT Warrant from learned Metropolitan Magistrate, Delhi, Somnath Pal produced before the NDPS Court at Chennai. On production of Somnath Pal, the learned Special Judge under NDPS Act cases, Chennai remanded Somnath Pal. Subsequently, the Intelligence Officer of DRI, Thiru.C.Narasimman obtained Orders from the learned Special Judge under NDPS Act Cases for custodial interrogation of Bhimlal Pandit, Ram Chander Pandit and Somnath Pal. As per the Order of the learned Special Judge, Accused 1 to 3 were interrogated in the presence of the Jailer at the Central Prison, Puzhal, Chennai and obtained their statements which was recorded in the presence of Jailer. Somnath Pal refused to give statement which was also recorded in the presence of Jailer and the attested signature of the Jailer was also obtained. He had also recorded the statement of the Mahazar Witnesses for the seizure of contraband from the Office of M/s.Kamadenu Express Cargo Movers Limited in the presence of owner of the

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said Cargo service. The statement of the witnesses were also obtained. On completion of the formalities, as per the NDPS Act, the DRI, Chennai and on completion of investigation, the Intelligence Officer preferred the Complaint before the NDPS Court. The Complaint was taken on file by the learned Special Judge, NDPS Court, Chennai. As per the statement of Ram Chander Pandit on receipt of information from the Chennai that his elder brother/Bheemlal had been arrested and detained by the DRI, Chennai Unit details regarding parcel booked on 23.01.2013 owing some Narcotic items. Ram Chander Pandit refused to book the parcel brought by Somnath Pal and subsequently he made Somnath Pal to sit and asked his name and address in writing. Only then he came to know that the person is Somnath Pal when he was detained by Ram Chander Pandit, some people came to the Office of Ram Chander Pandit at Delhi, they impersonated as they are Police Officials of nearby Police Station and attacked Ram Chander Pandit and forcibly taken away of Somnath Pal issuing that he does not disclose any details to anyone. They left Rs.10/- note with details of mobile number. For this instant, Ram Chander Pandit informed is to the nearby Police Station and sought Police action since they failed he had met the Commissioner of Police, Delhi and lodged a Complaint. From the details furnished by Ram Chander Pandit, the name of Somnath Pal was received by DRI, Chennai. Accordingly, they

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proceeded with the investigation. After completion of investigation, secured Somnath Pal arrested him and produced in Court in Delhi and on such PT Warrant, they brought him to Chennai and produced him before the learned Special Judge, NDPS Act cases, Chennai. After completion of the investigation, the Intelligence Officer of DRI had filed a Complaint before the learned Special Judge.

2.4. The learned Judge had taken the Complaint on file C.C.No.41 of 2013 and on cognizance for the offence under Section 8 (c) r/w. Section 22 (c), 28 and 29 of NDPS Act, 1985 as amended by Act 9 of 2001 against Accused-1, Accused-2 and Accused-4. The person by name Shafi arrayed as Accused-3, he was not secured till the filing of Complaint by the Intelligence Officer, DRI before the learned Special Judge, Chennai. Therefore, Accused-3 was shown as absconding Accused and warrant is pending against him. The person by name Somnath Pal is arrayed as Accused-4. They were are not granted bail. Therefore, on appearance of Accused-1, Accused-2 and Accused-4, copies were furnished to them. After hearing the learned Public Prosecutor and learned Counsel for the Accused 1, 2 and 4, the learned Special Judge under NDPS Act cases, Chennai had framed charges against Accused-1, Accused-2 and Accused-4 for the offence under Section 8 (c) r/w. 22 (c), 28, 29 of NDPS Act, 1995 as amended by Act 9/2001. The charges were explained to the 9/48

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Accused. The Accused denied the charges and claimed to be tried. Therefore, the learned Special Judge ordered trial. During trial, the Officers of Department of Revenue Intelligence were examined as witnesses P.W-1 to P.W-8. The documents were marked by the Prosecution were Ex.P-1 to Ex.P37. The material Objects were marked as M.O-1 to M.O-9. The case of the Prosecution is that the Accused in this case along with the absconding Accused had conspired to transport Narcotics From Delhi to Chennai and export it foreign countries through Chennai. Therefore, Accused 1, 2 and 4 are presumed to have conscious possession of Narcotic substances when they had transported it from Delhi to Chennai by using Railway Parcel through Cargo Operator M/s.Kamadenu Express Cargo Movers Limited. Therefore, when the prosecution had established the transport of contraband via Railway Freight Service through M/s.Kamadenu Express Cargo Movers litmited from M/s. Rama Trading Company and to be received by Balaji Enterprises, Chennai. Therefore, the presumption under Sections 35 and 50 of NDPS Act as amended is available to the Court. It is for the Accused to discharge the reverse burden. After completion of the prosecution evidence the Accused was examined by the learned Special Judge under Section 313 Cr.P.C., regarding the incriminating materials available through the evidence of P.W-1 to P.W-8 and Ex.P-1 to Ex.P-37 and M.O-1 to M.O-9. The Accused denied the

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incriminating evidence available against them. Accused-1, Accused-2 not only denied the incriminating substances, they also furnished written explanation. The Accused had not let in evidence as Defence Witnesses. The arguments were heard from the learned Additional Public Prosecutor and the learned Counsel appearing for Accused-1, Accused-2 and Accused-4. Till the conclusion of trial, Accused-3 was not secured. The case against Accused-3 was split up. After hearing the arguments on both parties and on perusal of records, the learned Special Judge, NDPS Act Cases, by Judgment dated 25.11.2016 rejected the case of DRI, Chennai and acquitted the Accused.

2.5. Aggrieved by the Judgment of acquittal recorded by the learned Special Judge, NDPS Act Cases, Chennai, the DRI, Chennai had preferred this Appeal seeking to set aside the Judgment of acquittal ordered by the learned Special Judge against Accused-1, Accused-2 and Accused-4 in C.C.No.41 of 2013 dated 25.11.2016.

The learned Special Public Prosecutor for the Appellant submits that the learned Special Judge, II Additional Special Judge under NDPS Act, Chennai by judgment dated 25.11.2016 in CC.No.41 of 2013 had misdirected himself by applying the facts of the reported rulings of the Hon'ble Supreme Court in the case of State of Punjab Vs Balkar Singh and another reported

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in (2004) 3 Supreme Court Cases 582 , which is held as follows:

".... Possession"of prohibited substance under - Proof of Accused alleged to have been found present at the place where about 100 bags of poppy recovered, sitting on such bags, and failing to give any satisfactory explanation for being present at that place - Whether proof enough of "conscious possession" of prohibited substance - Held, merely be being found to be present at the place where the poppy bags were found and the failure to give any satisfactory explanation for being so present did not prove that the Accused persons were in possession of the said poppy bags..."

It is the submission of the learned Special Public Prosecutor for the

Appellant that Accused-1 is the person who had received the parcel at Chennai. Accused-2 is the person who had sent the parcel from Delhi to Chennai. Accused-1 and Accused-2 are brothers. Accused-3 is the person in whose address the parcel was sent. On verification by DRI Officials under Ex.P.28, the verification report by P.W-3 it was found that the address was found fictitious. There is no such person or office. While so, the parcel were sent regularly from Delhi to Chennai. Accused-3 had received the parcel on earlier occasions. The DRI Officials seized the parcel from the possession of Accused-1 from the godown belonging to Accused-1. Therefore, the presumption under Section 35 of the Narcotic Drugs and Psychotropic Substances Act, is attracted. It is for Accused-1 to Accused-3 to disprove the allegation stated by the DRI Officials. The learned Judge in his judgment has observed as follows:

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"13. The learned Counsel appearing for Accused-1 argued that the burden to prove the charges rest upon the prosecution and the burden on the Accused is only preponderance of probability. There is no dispute regarding the settled proposition of law that the legal burden shift to the Accused only when the initial burden exists upon the prosecution failed to establish its initial burden that knowing fully well PW1 received the contraband through Railway Parcel Service from Accused-2. The learned Counsel drew strength from the following authorities decided by the Hon'ble Supreme Court.

CDJ 2000 SC 055

Abdul Rashid Ibrahim Mansurl Vs

State of Gujarat

"23. No doubt, when the appellant admitted that narcotic drug was recovered from the gunny bags stacked in the auto-rickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in subsection (2) as "beyond a reasonable doubt". If the court, on an appraisal of the entire evidence does not entertain doubt of a reasonable concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the court entertains strong doubt regarding the Accused's awareness about the nature of the substance in the gunny bags, it would be miscarriage of criminal justice to convict him of the offence keeping such strong doubt undispelled. Even so, it is for the Accused to dispel any doubt in that regard.

24. The burden of proof cast on the Accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.

25. In this case non-recording of the vital information collected by the police at the first instance can be counted as a circumstance in favour of the appellant. Next is that even the information which PW-2 recollected from memory is capable of helping the Accused because it indicates that the real

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culprits would have utilized the services of an auto-rickshaw driver to transport the gunny bags and it is not necessary that the auto-rickshaw driver should have been told in advance that the gunny bags contained such offensive substance. The possibility is just the other way around that the said culprits would not have disclosed that information to the auto-rickshaw driver unless it is shown that he had entered into a criminal conspiracy with the other main culprits to transport the contraband. Prosecution did not adduce any evidence to show any such connivance between the appellant and the real culprits. There is nothing even to suggest that those culprits and the appellant were close to each other, or even known to each other earlier. Yet another circumstance discernible from the evidence in this case is that the police had actually arrayed two other persons as the real culprits and made all endeavour to arrest them, but they absconded themselves and escaped from the reach of the police.

26. From the above circumstances we hold that the Accused had discharged the burden of proof in such a manner as to rebut the presumption envisaged in Section 35 of the Act. He is, therefore, not liable to be convicted for the offences pitted against him."

(2008) 16 Supreme Court Cases 417

Noor Aga ... Appellant Vs State of Punjab & another ... Respondents

58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the Accused as also place burden of proof in this behalf on the Accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the Accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the Accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of Accused on the prosecution is "beyond all reasonable doubt" but it is preponderance of probability" on the Accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accued cannot be said to have been established.

In the authority first cited above the Hon'ble Supreme Court clearly held that the burden of proof cast on the Accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials

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available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt.

14. As already discussed above the prosecution failed to produce records, so that the court shall presume the existence of mental state of Accused-1. Where as Accused-1 proved the fact that he had no such mental state with respect of the act charged as an offence in the prosecution case. In more than one place in this judgment this Court observed that Accused-1 received the contraband only on the belief that the parcel contained only master batch as stated in the invoice".

Here, the learned Judge had misdirected himself and stated that

the prosecution had not proved the case. Therefore, the burden to disprove the prosecution of the case does not fall on the Accused. On that ground, the learned Judge had acquitted the Accused.

The learned Special Public Prosecutor for the Appellant for DRI cases submits that the facts of the reported ruling in (2004) 3 Supreme Court Cases 582 (cited supra) is different from the facts of the case before the trial Court. Here is the case where DRI had filed verification report under Ex.P.28, in which the address is shown as fictitious address (non-existent address). While so, the contraband is sent from Delhi to Chennai regularly and it is collected by Accused-3. Accused-3 is still absconding. From the godown of Accused-1 at Chennai, the DRI Officials had seized the contraband. Without paying the bill amount. One Shafi had taken back the contraband. Payment was made only belatedly. No prudent man will part with parcel without

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receiving the payment. Therefore, the prosecution had proved the case by drawing the attention of this Court to the seizure and the verification report. Therefore, the presumption under Section 35 and 54 of NDPS Act is attracted which was ignored by the learned Special Judge under NDPS Act and the learned Judge misdirected himself and acquitted the Accused on the ground that the prosecution had not established the case and had not marked any documents to prove mental status of the Accused to attract the burden on the Accused. Therefore, he seeks to set aside the judgment of acquittal recorded by the learned Special Judge, II Additional Special Court under Narcotic Drugs and Psychotropic Substances Act, Chennai.

The learned Counsel for the Respondents 1 and 2 Mr.M.S.Charles submitted that the first Respondent and second Respondent are brothers and they are arrayed as Accused-1 and Accused-2 in this case. They are running the Railway Parcel Service viz., M/s. Kamadenu Express Cargo Movers. He further submitted that the Respondents need not enter the witness box and let in evidence to discharge the reverse burden. It is available to them by crossexamination of the Prosecution Witnesses. From the cross-examination, the materials in support of the Accused may be obtained. It is sufficient that as per the reported ruling of the Hon’ble Supreme Court in various cases under NDPS Act. It is sufficient that the Prosecution has to establish their foundation

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case as per the ruling reported in AIR 2000 SCC 821 in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat . It is not necessary that the Accused has to discharge reverse burden that he had no knowledge of the Narcotic substance. The burden of proof cast on the Accused under Section 35 to discharge on different mode. One is that he can rely on the materials available in the prosecution evidence. Next is in addition to that he can elicit answers from the Prosecution Witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in Prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that the Accused could not have had the knowledge or required intention, the burden cast on him under Section 35 of Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. As per the reported ruling of the Hon’ble Supreme Court in 2008 AIR SCW 5964 in the case of Noor aga Vs. State of Punjab and others. The initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the Accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the Accused on the prosecution is, “beyond all reasonable

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doubt”, but it is “preponderance of probability” on the Accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of Act, the actus reus , which is possession of contraband by the Accused cannot be said to have been established. With a view to bring within its purview the requirements of Section 54 of Act, element of possession of the contraband was essential so as to shift the burden on the Accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. Whether the burden on the Accused is a legal burden or an evidenciary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of Doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the Accused is an evidenciary burden and not merely a legal burden.

In support of his contention, the learned Counsel for the Respondents 1 and 2 relied on the following ruling of the Hon’ble Supreme Court:-

(i) 2008 AIR SCW 5964 in the case of Noor Aga Vs. State of Punjab

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and another. The relevant portion reads as follows:-

Constitution of India, Art. 14 – Evidence Act (1 of 1872), S.3-

“........ An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the Accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of Accused on the prosecution is “beyond all reasonable doubt” but it is 'preponderance of probability' on the Accused. If the prosecution fails to prove the foundational facts so as to attract the rigorous of S.35 of the Act, the actus reus which is possession of contraband by the Accused cannot be said to have been established. With a view to bring within its purview the requirements of S.54 element of possession of the contraband was essential so as to shift the burden on the Accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. Whether the burden on the Accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the Accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The Accused must be provided with opportunities to effectively defend himself.”

“80. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the Accused as also place burden of proof in this behalf on the Accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the Accused only in the event the circumstances contained therein are fully satisfied. As initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the Accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of Accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the Accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the Accused cannot be said to have been established.”

(ii) AIR 2004 Supreme Court 4606 in the case of State of Punjab Vs.

Balkar Singh & Another. The relevant portion reads as follows:-

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“3. We heard the Counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that, these Respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimony of PW1 Balbir Singh and PW-2 ASI Jarnail Singh. Both these witnesses deposed that they found the Respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The Respondents belonged to different Villages. The respondent Balkar Singh is a resident of village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of Respondents at the place from where the bags of poppy husk was recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these Accused were really in possession of these articles. The failure to give any satisfactory explanation by the Accused for being present on that place itself does not prove that they were in possession of these articles. Though the Respondents raised a plea before the Session Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the Respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the Respondents. We do not find any infirmity in the judgment passed by the High Court.”

(iii) AIR 2000 Supreme Court 821 in the case of Abdul Rashid Ibrahim

Mansuri Vs. State of Gujarat. The relevant portion reads as follows:-

“20. In the above context, learned Counsel for State sought to rely on the legal presumption envisaged in Section 35 of the Act, In fact the Division Bench of the High Court also mainly rested on that legal premise. Section 35 reads thus:

"35. Presumption of culpable mental state. - (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

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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.

Explanation - In this section 'culpable mental state' includes inten-tion, 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."

21. No doubt, when the appellant admitted that narcotic drug was recovered from the gunny bags stacked in the auto-rickshaw, the burden of proof is on him to prove that he had ao knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in sub-section (2) as "beyond a reasonable doubt*. If the court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the court entertains strong doubt regarding the Accused's awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strung doubt un-dispelled. Even so, it is for the Accused to dispel any doubt in that regard.

22. The burden of proof cast on the Accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that be can elicit answers from prosecution witnesses through cross- examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.

23. In this case non-recording of the vital information collected by the police at the first instance can be counted as a circumstance in favour of the appellant. Next is that even the information which PW-2 recollected from memory is capable of helping the Accused because it indicates that the real culprits would have utilized the services of an auto-rickshaw driver to transport the gunny bags and it is not necessary that the auto-rickshaw driver should have been told in advance that the gunny bags contained such offensive substance. The possibility is just the other way around that the said culprits would not have disclosed that information to the auto-rick- shaw driver unless it is shown that he had entered into a criminal con- spiracy with the other main culprits to transport the contraband. Prosecution did not adduce any evidence to show any such connivance between the appellant and the real culprits. There is nothing even to suggest that those culprits

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and the appellant were close to each other, or even known to each other earlier. Yet another circumstance discernible from the evidence in this case is that the police had actually arrayed two other persons as the real culprits and made all endeavour to arrest them, but they absconded themselves and escaped from the reach of the police.

24. From the above circumstances we hold that the Accused had discharged the burden of proof in such a manner as to rebut the presumption envisaged in Section 35 of the Act. He is therefore, not liable to be convicted for the offences pitted against him.

25. In the result, we allow this appeal and set aside the conviction and sentence passed on the appellant by the High Court in the impugned judgment We restore the order of acquittal passed in his favour by the trial court. We direct him to be set at liberty forthwith, if he is not required in any other case.”

(iv) 2011 AIR SCW 3106 in the case of Ram Singh Vs. Central Bureau

of Narcotics. The relevant portion reads as follows:-

“15. Now we proceed to consider the last question, i.e, whether the appellant can be held guilty for being in possession or involved in selling the opium so as to attract the mischief of Section 8/18 of the Act. In sum and substance the confession of the appellant is that he was working in the hotel for the last two months and brought the opium from the house of the hotelowner to the hotel, where it was being sold in tablets to the truck-drivers. In the confession appellant has not stated or for that matter none of the witnesses have deposed that he was involved in selling the opium-tablets. Therefore, the appellant cannot be held guilty for selling opium. Whether in the state of evidence appellant can be held guilty for possessing the opium only on the ground that he brought the opium from the house of the owner to the hotel is another question which requires adjudication. It is trite that to hold a person guilty, possession has to be conscious. Control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an Accused it could be presumed that he was in conscious possession. Possession is a polymorphous term which carries different meaning in different context and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all the statutes. A servant of a hotel, in our opinion, cannot be said to be in possession of contraband belonging to his master unless it is proved that it was left in his custody over which he had absolute control. Applying the aforesaid principle when we

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consider the facts of the present case it is difficult to hold that opium was in possession of the appellant. There is no evidence on record to suggest that the appellant was in occupation of the room from where opium was recovered. Further the evidence clearly points out that title to the opium vested in the owners of the hotel. The confession given by the appellant was only that he was servant of the owners of the hotel from where the opium was recovered. In the face of the state of evidence it is difficult to hold that the appellant was in conscious possession of the opium. Section 18 of the Act prescribes punishment for possession and that possession, in our opinion, has to be conscious. In the facts of the present case it is difficult to hold that the appellant was in possession of the opium and, therefore, his conviction and sentence cannot be sustained.”

(v) In the case of The Intelligence Officer Vs. B.Balatheepan reported

in CDJ 2019 MHC 1446 . The relevant portion reads as follows:-

“Before adverting to the rival submissions, it may be apposite to refer to the judgment of the Supreme Court in the case of V.Sejappa – Vs - State (2016 (12) SCC 150), wherein the Supreme Court has laid down the following guidelines for dealing with an appeal against acquittal :-

“23.......

Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an Accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;

(ii) The Accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;

(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court.

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It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and

(iv) Merely because the appellate court on reappreciation and reevaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.” Thus, when there are two views possible, the view favourable to the Accused deserves acceptance.

13. This Court has no quarrel with the aforesaid legal proposition submitted by Mr.Venkateswaran because Section 35 of the NDPS Act mandates so. In possessory offences, beyond proving possession or custody, the prosecution may not be able to prove what was there in the inner recess of the mind of the possessor and that is why the Legislature has thought it fit to shift the burden and place it at the doorstep of the possessor. However, to fasten criminal liability, mens rea is sine qua non, otherwise the maxim Actus Reus Non Facit Reum Nisi Mens Sit Rea would be rendered otiose. To discharge, the burden u/s 35 and 54 of the NDPS Act, it is not necessary in every case for the Accused to lead positive evidence. It would suffice if the Accused is able to discharge the burden beyond reasonable doubt via the evidence adduced by the prosecution themselves.

14. In this case, at the time of interception of the Accused, his conduct was very normal and no palpable anxiety was noticed by the officers. He submitted himself and his belongings to search. Superficially the keyboard appeared normal. Along with the keyboard, Sudha had given two photo albums, which the customs officials have admitted in their evidence. However, it is their case that when they asked the respondent to identify if Sudha was there in any of the photos in the album, he perused the album and stated that Sudha was not there. In the opinion of this Court, despite this answer, the officers should have seized the album in order to use it for tracing Sudha. In fact, Thiagarajan (P.W.9) has clearly admitted in the cross examination that no steps were taken to trace Sudha. It is not the case of the Department that Sudha was in Sri Lanka at that time. It is the very case of the respondent that Sudha had just then handed over the keyboard and two albums to him at Chennai to be delivered to his (Sudha's) wife at Colombo.

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Similarly, in the statement recorded u/s 67 of the NDPS Act also, the respondent has given all the details with regard to his acquaintanceship with Sudha and the circumstance in which he accepted to carry the keyboard and two albums with him to Colombo. In fact, the respondent has stated that he had asked for Sudha's help to bring his mother, who was caught in the crossfire in the civil war to be safely brought to India for which Sudha had assured him that he would do the needful.”

(vi) Crl. A.No.1053 of 2016 (Supreme Court) in the case of Naresh

Kumar Vs. State of Himachal Pradesh. The relevant portion reads as

follows:-

“5. ........... Reliance was placed on Basappa Vs. State of Karnataka, 2014 (5) SCC 154 that if two views were possible, the acquittal ought not to have been interfered with in appeal.

9. The presumption against the Accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the Accused to a fair trial could not be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417, observing:-

“58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the Accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the Accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the Accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the Accused cannot be said to have been established.

59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the Accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative,

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namely, the element of possession will have to be proved beyond reasonable doubt.”

11. In Basappa (supra), it was observed that the High Court before setting aside an order of acquittal was required to record a finding that the conclusions of the Trial Court were so perverse and wholly unreasonable, so as not to be a plausible view by misreading and incorrect appreciation of evidence. The conclusions of the High Court in the facts of the present case are more speculative, based on conjectures and surmises, contrary to the weight of the evidence on record.”

(vii) 2014 (5) STC 154 : CDJ 2014 SC 165 in the case of Basappa Vs.

State of Karnataka. The relevant portion reads as follows:-

“ 15. (4)................

Firstly, the presumption of innocence is available to him under the fundamental principle criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.”

(viii) CDJ 2022 MHC 5372 in the case of Anandam Gundluru Vs.

Inspector of Police, NCB/MDS, Chennai . The relevant portion reads as

follows:-

“22. Though not in all cases, the carrier can plead absence of culpability, in the peculiar circumstances and facts of this case as narrated above, the knowledge of contraband in the Airbag cannot be attributed to the Accused/appellant. Through his statement it is probablised that he had carried the parcel given by Venkateswara Rao, without knowing that it is a prohibited substance. By preponderance of probability, the Accused had established the absence of knowledge, contrarily Ex.P-39 and Ex.P-42 relied by the complainant does not prove that the Accused was conscious of the presence of heroin in the parcel given to him by Venkateswara Rao.”

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He had relied on the Hon’ble Supreme Court reported in AIR 2000 Supreme Court 821 in the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, wherein the Accused was an Auto Rickshaw driver similar to the facts of this case, the Police Officials who had prosecuted the case received

the information that the contraband under NDPS Act cases had been transported in an Auto Rickshaw, on receiving such information, the Police Officer stopped the Auto Rickshaw and conducted search. The Auto Rickshaw found containing Narcotic, “Charas” in Ganny bags. Till the Police recovered the “Charas” from his Auto-Rickshaw, the driver was not aware of the Ganny bags contains “Charas”. In that case also, the Auto-Rickshaw driver who was arrested and remanded. Prior to his arrest had co-operated with the search and seizure of Ganny Bags by the Police Officials. He had cooperated. In the trial, the learned Counsel for the Accused had cross-examined the Prosecution Witnesses from whom the elicited answers favourable to the Accused that the Accused had cooperated wholly with the search and seizure of contraband. The Court on appreciation of evidence found that the Accused did not have conscious possession. The Hon’ble Supreme Court had acquitted the Accused. The trial Court acquitted the Accused. On Appeal by the Prosecution, the Hon’ble High Court, Gujarath reversed the acquittal and convicted the Accused. Against which the Accused went in Appeal to the Hon’ble Supreme

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Court, the Hon’ble Supreme Court restored the acquittal by the trial Court and set aside the conviction by High Court, Gurjarath.

Here, in this case, Accused-2 had received the consignment

booked by Accused-3 with the address in Chennai as M/s. Balaji Enterprises Limited, the brother of Accused-2/Accused-1-Bhimlal Pandit as owner of M/s.Kamadenu Express Cargo and Movers Limited., had received the parcel received form the Railway parcel Service at Wall Tax Road. The person on whom it was booked himself came and enquired whether consignment received. The person was identified as Shafi, he had produced the receipt. Based on which, the consignment was handed over to Shafi.

The learned Counsel for the Respondents 1 and 2 invited the attention of this Court to Ex.P-32 which is the statement recorded from Bhimlal Pandit, at the time of seizure of contraband. He had cooperated with the search and seizure as is available under Ex.P-32. The relevant portion reads as follows:-

“ Q.No.2:- How the consignment will be delivered to the consignee?

Ans. No.2:- Normally I received the consignment from Railways through the clearing and forwarding Agent M/s. AMR Clearing and Forwarding agent waltox Road, Chennai – 79 and delivered the same through my employees to all the consignee address. However, for the above consignment one Mr.Safi whose mobile number is 8056085818 called me on

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26.01.2013 and gave me LR.No.4723 and informed that he will collect the cargo from my office earlier also he collected on such consignment on 11.01.2013 for which I received Rs.300/- as charges only on 19.01.2013 as he did not turn up after picking up the cargo on 11.01.2013. He assured me that he is going get such consignment on regular basic from Delhi from now onwards, that time the consignment weighted 20kgs and the consignee name was Sri Balaji Enterprises”

P.W-1 had also in his cross-examination admitted that the

consignment was covered with Polythene sheet over carton box. Therefore, the contents was not visible. Therefore, there cannot be conscious possession. Also, the Prosecution witnesses P.W-1 to P.W-8 had in their cross-examination admitted that on investigation, they were unable to prove the case of conspiracy between Accused-1 to Accused-4 regarding transport of contraband under the NDPS Act from Delhi through Chennai to foreign countries. Under those circumstances, the learned trial Judge had on proper appreciation of evidence had given a clear finding that there was no conscious possession. Both brothers are running the M/s.Kamadenu Express Cargo Movers Limited, they cannot be expected to know the contents of each of the consignment received by them or the details of the consignee and consignor. As business man, they are only interested in carrying on their profession without violating laws of the country. As Cargo Movers, they have a responsibility to reach the consignment to the addressee to whom it is booked. Here, in this case, person by name Shafi contacted, prior to receipt of Cargo reaching Chennai.

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Therefore, he was informed of the consignment reached Chennai. When the second consignment reached, the DRI Officials had come and conducted search and seizure. Till such time, they were not aware what was the consignment. From the normal human conduct, if the entire case is analyzed, it is doubtful whether they had knowledge. As per the reported ruling relied by the learned Counsel for the Respondents 1 and 2, he would submit that in the reported ruling, it is clearly established by the Hon’ble Supreme Court that if the Court itself comes to the conclusion that there could not have been conscious possession of knowledge of Narcotic by the Accused where Accused need not discharged the reverse burden caused upon them. It is enough, if the doubts are against the Accused cleared through the cross-examination of the Prosecution witnesses. Here the prosecution witnesses clearly stated in the cross-examination that the Accused 1 and 2 cooperated with the entire investigation. Therefore, the learned Judge had in the discussion of evidence in Paragraph Nos.10, 11 and 22 clearly relied on the evidence of the prosecution witnesses regarding the materials available in the cross-examination of P.W-1 and P.W-6.

The learned Counsel for the Respondents 1 and 2 also invited the attention of this Court to the reported ruling of this Court in CDJ 2019 MHC 1446 in the Intelligence Officer, AIR Intelligence Unit Customs House,

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Rajaji Salai, Chennai Vs. B. Balatheepan where the case was similar, the Accused had carried with him the parcel containing Keyboard and photo album which was subjected to Baggage packing, the Accused was proceeded to Srilanka through Chennai AIRPORT Board Flight No.UL-124 (Srilankan Airways) to Sri Lanka from Anna International Airport, Chennai. After clearing Baggage check, when he was proceeding to security gate he was intercepted by Intelligence Officer Customs and was questioned on suspicion that he may be carrying some contraband when questioned with the Accused, stated the Accused that he is not in possession of any substance, not satisfied with the reply, the Officer had checked his baggage by bringing him in Air Intelligence Room. In the presence of two witnesses, checked the person and found nothing. Thereafter, he was questioned, he stated that he had only his personnel apparels and keyboard in his baggage which was also checked. On closer examination of keyboard, the AIR Intelligence Unit Officer found that the screws were tampered with and this arose a suspicion in his mind. Therefore, he unscrewed the keyboard and found heroin concealed therein. When the Accused was questioned, he stated that the keyboard and two albums were given to him by Sudha who wanted it to be delivered to his wife and the contraband weighed 1576 grams. The officers seized the keyboard and contraband and drew the representative samples there from under Mahazar

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attested by Varadarajan and Kasiviswanathan. Thereafter, the Accused was interrogated by Intelligence Officer/Radha, he was placed under arrest by serving him arrest memo, the contraband was sent to Special court from Custom Laboratory. On examination, it was found that it contained morphine. Report was submitted under Section 57 of NDPS Act to the Superior Officer of AIR Intelligence. After completing investigation, the Superintendent of Customs filed complaint before the Special Court, NDPS Act Cases, Chennai. After full trial, the Accused was acquitted. Against acquittal, the AIR Intelligence Officer preferred Appeal. In the Appeal, the learned Judge of this Court had acquitted the Accused.

Therefore, the question of conscious possession is not available to the brothers herein/Accused-1 and Accused-2. Therefore, the Judgment of acquittal recorded by the learned Special Judge under NDPS Act is a wellreasoned Judgment that does not warrant any interference by this Court, as Appellate Court.

The learned Counsel for the Respondents 1 and 2 also relied upon the ruling reported in 2016 (12) SCC 150 in the case of V.Sejappa Vs. State wherein the Hon’ble Supreme Court had laid down the following guidelines to deal with the Appeal against the acquittal:-

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“23.......

Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an Accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;

(ii) The Accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;

(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court.

It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and

(iv) Merely because the appellate court on reappreciation and reevaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.” Thus, when there are two views possible, the view favourable to the Accused deserves acceptance.”

The learned Counsel for the Respondent-3 Mr.R.C.Paul Kanagaraj submitted that the Judgment of the learned Special Judge, NDPS Court, Chennai is a well reasoned Judgment. He invited the attention of this court to

the cross-examination of P.W-1/Intelligence Officer. He also referred to the

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ruling of the Hon’ble Supreme Court in Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat.

He also invited the attention of this Court to the reported ruling in 2008 AIR SCW 5964 in the case of Noor Aga Vs. State of Punjab and another regarding possession and burden of proof on Accused under Sections 35 and 54 of NDPS Act.

He invited the attention of this Court to Naresh Kumar vs. State of Himachal Pradesh (Crl.A.No.1053 of 2016 (Supreme Court); and 2015 (5) CTC 154 in the case of Basappa Vs. State of Karnataka.

He invited the attention of this Court to the cross-examination of

P.W-6. The relevant portion reads as follows:-

bly;ypa[s;s epWtj;jpy; ahu; g[f; bra;jhu; vd;W neuoahf bjupahJ vd;W Twpa[s;shu;/ Kjy; vjpupapd; bjhiyngrp vz;. Jiykiw vjpupf;F LR uprpg;oy cs;sjpd; K:yk; bjupa[k;/ jiykiwt[ vjpup rgp vd;gu; ahu; vd;gJ Kjy; vjpupf;F bjupahJ vd;Wk;. 11/1/2013 md;W Kjy; vjpupia mtu; miHj;jjhft[k; thf;FK:yj;jpy; Twpa[s;shu;/ Kjy; vjpup thf;FK:yj;jpy; jiykiw vjpup rgp vd;gtu; ,njnghd;W mof;fo ngf;nf!; tUk; vd;W brhy;ypa[s;shu;/ ,e;j thf;FK:yj;jpy; vjpup rgpapDila bjhiyngrp vz;Zk; m';f milahs';fisa[k; brhy;ypa[s;shu; vd;why; rupjhd;/ me;j bjhiyngrp vz; ahUilaJ vd;W ehd; tprhuiz bra;atpy;iy/ nfs;tp vz;/10 y;. me;j fz;ird; bkl; ek;gu; 4723y; vd;d ,Uf;fpwJ vd;W nfl;ljw;F Kjy; vjpup vd;d ,Uf;fpwJ vd;Wk;. mjpy;vd;d ,Uf;fpwJ vd;Wk; gupnrhjid bra;tjpy;iy vd;Wk;. invoice y; brhd;dgo ghu;riy bgw;Wf;bfhs;nthk;/ nfs;tp vz;/11d;wpYk; invoice PVC Master Batch vd;W Fwpgpl;Ls;sjhy; mjpy;jhd; ,Uf;Fk; vd;W ek;gpndd; vd;Wk;

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thf;FK:yj;jpy; brhy;ypa[s;nsd; vd;why; rup/ rhl;rpjhd Kd;te;J Twpa thf;FK:yk; vGjp bfhLg;gjw;F Kd;g[ rk;ge;jg;gl;l fz;ird;kd;l; vz;/4723 vd;w 2 ngf;nf!;!py; mjpy; Fwpg;gplg;gl;l Il;lk; ,y;iy vd;Wk;. ntW Vnjh jilbra;ag;gl;l bghUs; cs;sJ vd;Wk; tha;bkhHpahf Twpdhu;/ Mdhy; thf;FK:yk; vG Jk; nghJ mij kWj;J jdf;F vJt[k; bjupahJ vd;W vGjpf;brhLj;jhu;/ tha;bkhHpahf brhd;dJ ntW vGj;Jk;nghJ brhd;dJ ntW vd;why; rupjhd;/ tha;bkhHp K:ykhf brhd;d thf;FK:yj;jpw;F Kuzhf vGj;JK:ykhf Fwpg;gpl;l thf;FK:yk; bfhLj;Js;shu;/ vd;gpv!; rl;lk; bfhLikahdJ vd;W bjupa[k;/ 50 fpnyh bfl;likd; itj;jpUe;jhy; Fiwe;jJ 10 tUl';fs; jz;lid vd;Wk; bjupa[k;/ xt;bthU Ezf;fkhd tpra';fis rl;lg;go gjpt[ bra;a ntz;Lbkd;gJ vdf;F bjupa[k;/ ,e;j Kuz; tpraj;ij vd;Dila 57 mwpf;ifapy; Fwpg;gpltpy;iy/ ntW ve;j vGj;JK:ykhd Mtzj;jpYk; Fwpg;gplg;gltpy;iy vd;why; rupjhd;/

Also, the learned Counsel for the third Respondent submitted that

as per Section 57 of NDPS Act, the report to be given to the Superior Officer of DRI by P.W-1 within 48 hours. Even in the remand request no mention of time was found. The complaint copy does not have this objectionable materials. Section 57 report did not contain addressee of Accused-1. Regarding the cross-examination of P.W-6, the learned Counsel for the third Respondent relied on the ruling reported in CDJ 2019 MHC 1446 in the case of Intelligence Officer Vs. B. Balatheepan; and CDJ 2022 (MHC) 5372 in the case of Anandam Gunduluru Vs. NCB, Chennai.

Section 67 statement relied by the Accused, it is hit by Section 27 of the Indian Evidence Act. The statement obtained from Bhimlal Pandit. A prudent man would not consign 50 kg of Ketamine for meagre amount of

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Rs.300/- . Also, the learned Counsel for the third Respondent submitted that the grounds of Appeal does not have any acceptable reasons to reverse the finding of learned trial Judge. In spite of innocence of Accused-1, Accused-2 and Accused-4, they were arrested. On 30.01.2013, Accused-4 was arrested but the Investigation Officer were unable to complete investigation by securing

Accused-3. Accused-4 came to light only after confession statement of Accused-2, after his arrest in Delhi. The statement obtained from Accused-1 did not contain name of Accused-4. Accused-4 was confined and produced before the Court on 19.03.2014 by DRI, NBW issued was against Accused-4 on 16.09.2014 by the NDPS Court, Chennai. Accused-4 was in lodge Thihar Jail on PT Warrant and subsequently produced before the NDPS Judge at Chennai. Accused-4 had implicated only the statement recorded in Jail at Chennai. That is how Accused-4 was implicated. No prior grounds in Appeal against Accused-4. The confession of Accused-1 not implicated Accused-4. The contents of letters sent by Accused-2 was taken by DRI as against Accused-4. No statement was recorded from Accused-4. No proof of the involvement of Accused-4 as per the evidence of the Prosecution witnesses.

How they implicated Accused-4 is not found in the evidence through P.W-1 to P.W-8.

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The learned Public Prosecutor for NDPS Act cases, replied to the submission of the learned Counsel for the Respondents stating reference to Ex.P-1 and references to question and answer relied by the Prosecution from the statement recorded from Accused-1 and Accused-3.

The statement recorded from the Accused-1 in question and answer format. It gives presumption that Accused-1 to Accused-4 were aware of the fictious consignment. Instead of handing over the consignment in the place mentioned in the consignment, a person by name Shafi was given the consignment. That itself indicates that it was a shady dealings. Accused-1 and Accused-2 were aware of the shady dealings marked as Ex.P-3. Also, invited the attention of this court to the evidence of P.W-3. The relevant portion reads

as follows:-

“ .......... mjd;go ehd; kw;Wk; gp/tp/b$auhkd;. I.O cld nrhjid bra;jpl brd;nwhk;. nkw;gl;l tpyhrj;jpd; giHa vz;/ 123. g[jpa vz;/ 255/ mJ K:d;W jyk; bfhz;l fl;lolk; MFk;/ m';F me;j epWtdk; ,a';ftpy;iy vd;gJ tprhuizapy; bjupe;J bfhz;nlhk;/ nkYk; g[jpa vz;/123. giHa vz;/63 vd;w tpyhrj;ija[k; fz;Lgpoj;J. mJt[k; K:d;W kho fl;olkhf ,Ue;jJ/ me;j flolj;jpYk; ghyh$p vz;lu;gpiur!; vd;w ; epWtdk; ,a';ftpy;iy vd;gij bjupe;Jbfhz;nlhk;/ mij mwpf;ifahf vd;Dila K:j;j mjpfhupf;F mDg;gp itj;njd;/ mJ m/rh/M/28 MFk;/ ”

As per the submission of the learned Public Prosecutor, DRI

Cases, a person by name Shafi is a fictious person. Both Accused-1, Accused-2

and Accused-4 know that it was a fictious shady dealing. They had knowledge.

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Therefore, the claim of not having knowledge of the contraband in the consignment, possession of contraband is not true. The Judgment of learned Special Judge is perverse and is to be set aside.

Point for consideration

Whether the Judgment recorded by the learned Special Judge, NDPS Act Cases – II, Chennai in C.C.No.41 of 2013, dated 25.11.2016 is perverse and is to be set aside?

Heard the learned Special Public Prosecutor for the Appellant/DRI, Chennai Mr. N.P.Kumar and the learned Counsel for the Respondents 1 & 2 Mr.M.S.Charles and the learned Counsel for the Respondent-3 Mr.R.C.Paul Kanagaraj.

Perused the evidence of the prosecution witnesses P.W-1 to P.W-8 and the documents marked as Ex.P-1 to Ex.P-37. The Judgment of the learned Second Additional Judge, NDPS Court, Chennai in C.C.No.41 of 2013 dated 25.11.2016. As rightly pointed out by the learned Counsel for the Respondents 1 to 3, there cannot be conscious possession of the contraband by the Accused 1 and 2. The submission of the learned Public Prosecutor for the Appellant that Accused-1 and Accused-2 have knowledge of some shady dealings cannot be accepted on perusal of Ex.P-3. He had clearly stated that the person by name Shafi enquired regarding consignment. When the consignment reached, they

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had handed over it to him as he produced the connected receipt for the consignment. There cannot be any suspicion on the antecedents of Accused-1 and Accused-2. The learned Special Judge had in the course of the analysis of evidence, had in para 10,11, 22 relied on the portions in the cross-examination of Prosecution witnesses favouring the Accused. Also, the learned Judge had relied on the ruling cited by the learned Counsel for the Accused before the learned Special Judge, NDPS Court – 2 in the reported ruling in CDJ 2007 BHC 520 in the case of Daisy Angus Vs. Union of India & Another; 2011 Crl.L.J. 3579 in the case of Ram Singh Vs. Central Bureau of Narcotics; (2004) 3 SCC 582 in the case of State of Punjab Vs. Balkaqr Singh and another; CDJ 2000 SC 055 in the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat; and (2008) 16 SCC 417 in the case of Noor Aga Vs. State of Punjab & Another regarding possession/ conscious possession. Also, the Judgment of this High Court in Crl.A.No.645, 761, 742 of 2008 in the case of Venkatesa @ Venkat, C.Karthikeyan alias Karthik, J.Palanivelayutham alias Palani Vs. The Intelligence Officer, Narcotic Control Bureau, Southern Zone Unit, Chennai regarding Accused-4, the learned Judge had discussed the evidence in Paragraph No.19 wherein he had observed admittedly the name of Accused-4 is not found in the information as well as in Section 67 Statement of Accused-1. The prosecution came to know

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about name of Accused-4 only through the averments made in the bail application filed before the Hon’ble High Court on behalf of Accused-1. In the statement of Accused-2, the name of Accused-4 is mentioned. Accused-2 had mentioned the name of Accused-4 as the person who had booked the two parcels on 23.01.2013. The learned Judge had observed that “ the law is wellsettled. The confession of the co-Accused is not a substantiative evidence to invoke conviction”. Just because Accused-2 identified Accused-1, Accused-4 in prison, does not mean that Accused-4 is a person who gave contraband to Accused-2. As rightly argued by the learned Counsel for Accused-4, the prosecution failed to connect Accused-4 with M/s. Rama Trading Company. The prosecution admitted that it had taken no efforts to investigate the alleged Complaint given by Accused-2 to the Police Officials of New Delhi. In Paragraph No.20 of Judgment, the learned Special Judge observed that the Prosecution admitted that no statement was recorded under Section 57 of NDPS Act from Accused-4 in the prison. Therefore, no material is available to connect Accused-4 with the alleged crime. Since the confession of Accused-2 was recorded while Accused-2 was in duress, no evidenciary value attached to the confession of Accused-2. The phone number of Shafi was provided during his statement recorded by P.W-1 as questioned and answered type. Ex.P-11 is the application form duly signed by Shafi wherein his address and his

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photographs is found placed. The photostat copy of the driving licence of Shafi was also enclosed with Ex.P-11. Inspite of knowing the details of Shafi, the prosecution failed to take any efforts to secure Shafi. Also, the learned Judge had observed that the Prosecution witnesses admitted in their crossexamination that the claim of conspiracy by the prosecution against Accused-1 to Accused-4 had not been placed before the Court. P.W-1 admitted in his cross-examination that no records have been filed to prove charges under Sections 28 and 29 of NDPS Act. The relevant portion of cross-examination of P.W-1 is extracted as follows:-

“ ,e;j tHf;if nky; tprhuiz bra;jJ ehd; jhd;/ g[fhUk; ehd; jhd; jhf;fy; bra;njd;/ ehd;F vjpupfSk; me;j nghij bghUis btspehLfSf;F vLj;J bry;y Kaw;rp bra;tjw;F Mtz';fs; jhf;fy; bra;atpy;iy vd;why; rupjhd;/ ehd;F vjpupfSk; Kd;ng xd;W nru;j;J ngrpdhu;fs; vd;W fhl;Ltjw;F ve;j MtzKk; ,y;iy vd;why; rupjhd;/ ”

Therefore, the learned Judge had arrived at a irresistible conclusion that the case against Accused-1 to Accused-4 regarding conscious possession had not been proved as per the reported ruling in 2008 AIR SCW 5964 in the case of Noor Aga Vs. State of Punjab & Another; and AIR 2000 Supreme Court 821 in the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat; and CDJ 2019 MHC 1446 in the case of Intelligence Officer Vs.

B.Balatheepan.

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The Accused need not discharge the burden by entering the witness box, it is sufficient that if they are able to establish their defence by preponderance of probabilities from the materials available through prosecution witnesses. Here the prosecution witnesses in their crossexamination and admitted in their cross-examination that they have not conducted investigation regarding the complaint of Accused-2/Ram Chander Pandit given to the Delhi Police regarding the person who was confined by him on suspicion of having sent a consignment through Railway Freight Service which was received by his brother/Accused-1 who was detained by the Department of Revenue Intelligence suspecting the substances is Narcotic substances. Therefore, on receipt of such information, he had detained the person who came to him for booking the consignment and took details from him and at that time few persons attacked him in his office and forcibly taken away the person detained him. Therefore, he was forced to give Complaint to the nearby Police Station. They did not enquire. Therefore, he went to the office of Commissioner of Police with the same complaint, there too, they did not enquire. Therefore, this was pointed out to the prosecution witnesses/P.W1 admitted that he did not enquire, investigate regarding the conspiracy angle whereby Accused-1 to Accused-4 was claimed by the Prosecution to have conspired to carry the Narcotic from Delhi to Chennai through Railway

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Freight Service and to export it to other countries through Chennai. He had fairly considered that he had not placed any materials regarding such conspiracy. Therefore, there are no sufficient materials to implicate the Accused/Accused-1, Accused-2, Accused-4 regarding conscious possession. Further, Accused-1 had cooperated with the entire process of search and seizure, till his remand, that was also admitted in the cross-examination by the Prosecution witnesses. From the normal human conduct, it can be observed that the person who runs a parcel service is not aware what is in the parcel received daily in his office and also the person is not aware of what are all parcels sent through him. Here, it is a common knowledge that the facts are to be appreciated from the point of an ordinary prudent man. Bhimlal Pandit is the owner of M/s.Kamadenu Express Cargo Movers Limited at Chennai. His brother Ram Chander Pandit is running the same service in Delhi. The consignment was booked with Ram Chander Pandit at Delhi to be carried through Railway Freight Services. The person in Chennai/his own brother/Bhimlal Pandit received the Cargo through Railway Freight Service. The address of the persons in Chennai is given as M/s.Balaji Enterprises Limited. It is a covered carton box which is covered with a non-transparent plastic polythene cover containing the consignee address and consignor address with number and dispatch number of consignee as booked with Delhi

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Office. Based on the receipt furnished by the person by name Shafi who made enquiries regarding consignment. Bhimlal Pandit had contacted him that he had received the consignment. There cannot be suspicion regarding their involvement in carrying Narcotics. Apart from that, when parcels are booked, parcel service people, issued instructions in their receipts regarding laws of land regarding carrying of packaged items that prohibited item shall not be taken as parcel. Valuable item shall not be taken as parcel. Valuable document shall not be taken as parcels. They take up the responsibilities of handing over the parcel and taking over of the parcel has booked by the persons concerned and to reach the destination within specified time and they are not liable the delay caused by the natural calamities, it is like flood and other untoward incident when the Railway service affected. Apart from this, they do not take any risk. It is a common knowledge. While so, the DRI Officials arrived them as Accused as though they entered into a conspiracy witht the absconding Accused and the person who had booked the parcel from Delhi/Somnath Pal. Merely on suspicion, Revenue Intelligence Officer had arrayed as Accused-1 and Accused-2 as though they conspired with Accused-3 and Accused-4.

As rightly pointed out the learned Judge, Special Court under NDPS Act cases, based on the statement given by Accused-2 during duress in the Jail. Accused-4 was identified only in Jail. Till Accused-4 was secured, the

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prosecution had not investigated before securing Accused-4. The role of Accused-4 and Accused-3 independently. Merely based on the statement from Accused-2, Accused-4 was secured and no statement was obtained under Section 67 of NDPS Act from Accused-4 by the DRI Officials. When he was arrested at Delhi and produced before the Court at Delhi. He was brought to Chennai. He was remanded by the learned Special Judge, NDPS Court-II, Chennai. They had not secured any custodial interrogation of Accused-4 and no statement was recorded. As per the evidence of P.W-1, he went to Central Prison, Puzhal and in the presence of Jailer, obtained the statement of brothers Accused-1 and Accused-2, Accused-4 refused to give statement and it was recorded in the presence of Jailer. Therefore, the observation of the learned Special Judge that merely based on the confession statement of Accused-2, when he was under duress in the person, Accused-4 cannot be convicted based on such confession statement is found acceptable as per law. It is not a perverse finding, it is a well-reasoned Judgment. The facts of the reported ruling CDJ 2019 MHC 1446 in the case of AIR 2000 Supreme Court 821 in the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat; and CDJ 2019 MHC 1446 in the case of Intelligence Officer Vs. B.Balatheepan is similar to the facts of the present case. Therefore, the submission of the learned Counsel for the Respondents is found acceptable in the facts and

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circumstances of this case as available from the records. The Judgment of the learned special Judge, NDPS Court-II, Chennai is found well-reasoned Judgment.

Apart from that, the Accused is presumed innocent as per the law of this country, the presumption is drawn when the trial Court after analysis and assessment of evidence, acquit the Accused. Therefore, in cases of Appeal against acquittal, the Appellate Court will be slow in reversing the judgment of acquittal even though on assessment of evidence independently by the Appellate Court as observed by the learned Judge of this Court in CDJ 2019 MHC 1446 in the case of Intelligence Officer Vs. B.Balatheepan; and 2016 (12) SCC 150 in the case of V.Sejappa Vs. State. Therefore, when there are two views possible, the view favourable to the Accused deserves acceptance.

In the light of the above discussion, the point for consideration is answered in favour of the Respondents and against the Appellant/DRI, Chennai Zone. The Judgment passed by the learned Additional Special Judge, Special Court-II under NDPS Act, Chennai in C.C.No.41 of 2013, dated 25.11.2016 is well reasoned judgment. It does not warrant any interference by this Court.

In the result, this Criminal Appeal is dismissed. The Judgment passed

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by the learned Additional Special Judge, Special Court-II under NDPS Act, Chennai in C.C.No.41 of 2013, dated 25.11.2016 is confirmed. The bail bond executed by the Accused-1, Accused-2 and Accused-4 before the learned Special Judge, NDPS Court–II, Chennai shall be cancelled if they are not wanted in any other cases. The fine amount paid, if any, shall be refunded to Accused-1, Accused-2 and Accused-4.

03.03.2025

dh

Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order

To

The Additional Special Judge - II, Special Court under NDPS Act, Chennai.

The Senior Intelligence Officer, DRI, Chennai, No.27, G.N.Chetty Road, T.Nagar, Chennai – 600 017.

The Public Prosecutor, High Court, Madras.

The Section Officer, Criminal Section, High Court Madras.

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SATHI KUMAR SUKUMARA KURUP, J

dh

Judgment made in Criminal Appeal No.505 of 2017

03.03.2025

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