1 Cri.Appeal No.501/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.501 OF 2010 Shri Laxman Rajanna Bhusarak, Age 45 years, Occ. R/o Yendapalli, Tq. Sultanabad, District Karimnagar (A.P.) ... APPELLANT VERSUS The State of Maharashtra ... RESPONDENT ..... Shri G.R. Vaidya, Advocate for the appellant (appointed) Shri B.J. Sonawane, A.P.P. for the respondent ..... CORAM : U.D. SALVI, J. DATED : 6th & 8th September, 2011. ORAL JUDGMENT : 1. This is an appeal against the judgment and order of conviction under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, passed by the learned Special Judge, at Latur in Special Case No.1/2005 on 25.4.2006. Sentence of 10 years R.I. and a fine of Rs.1,00,000/- each and in default to undergo further R.I. for a period of one year was imposed on each of the accused following the said conviction. 2 Cri.Appeal No.501/2010 2. Four accused including the present appellant were found travelling in a Ambassador Car bearing Registration No.AP-15/G-2244 on Latur Barshi Road in front of Hotel Krishna at Murud, District Latur at about 11.00 Hrs. on 1.12.2004. It is the prosecution case that, 90 Kgs. of Ganja stuffed in the cushion seats of the car as well as the bonnet of the said car was recovered in the search of the vehicle taken in the presence of the panchas by the police. Interception of this vehicle, according to the prosecution, was following a specific information which was reduced into writing and communicated to the superiors by A.S.I. Sudhakar Jagtap, the complainant in the present case. Analysis of the samples taken from the contraband seized confirmed the seizure of Ganja from the said vehicle. 3. The co-accused Tirupati Narsayya Bhusarak, Tirupati Rajmalu Walal and Shiru Kunjo Bar were passengers travelling in the said vehicle whereas the appellant/ accused Laxman Rajanna Bhusarak, according to the prosecution, was at the wheel driving the said vehicle at the material time. The co-accused approached this Court with Criminal Appeal Nos.494/2006, 77/2007 and 78/2007 respectively and the said appeals were disposed of by this Court after hearing the parties on 7th and 8th February 2008. It appears that, the appellant preferred the present appeal belatedly 3 Cri.Appeal No.501/2010 and his appeal, thus came up for hearing after disposal of the appeals by the co-accused. 4. The prosecution examined P.W.1 Vikas Kale, panch; P.W.2 Arun Patil, co-panch; P.W.3 Sudhakar Jagtap, A.P.I.; P.W.4 Narayan Dappadwad, Carrier of the samples; P.W.5 Shaikh Husain Jafar Shaikh, investigating officer and further adduced in evidence the seized articles, seizure panchanama (Exh. 34), extract of station diary (Exh. 37), notice in writing to the accused (Exh. 38), letter dated 1.12.2004 for getting weights from the local shop (Exh. 39), complaint (Exh. 40), letter to the Duty Officer, Murud Police Station for handing over the seized muddemal (Exh. 41), Wireless message (Exh. 42), seizure report (Exh. 50) and arrest panchanama/ surrender reports (Exh.51) to (Exh. 54), C.A. report (Exh. 56), registration particulars of the vehicle bearing registration No.AP -15/G-2244 (Exh. 58). 5. Evidence of P.W.3 Sudhakar Jagtap reveals that, he had received a specific information that Laxman Rajanna Bhusarak (the appellant/accused) engaged in business of Ganja, was to carry some Ganja in White Ambassador Car bearing registration No.AP -15/G-2244 from Hyderabad to Mumbai and was likely to reach Murud about 12.00 noon and this secret information was reduced 4 Cri.Appeal No.501/2010 into writing by making an entry in the station diary as per Station Diary Extract (Exh. 37) and had dispatched a copy of the said information to his superior, Superintendent of Police, Latur by a wireless message (Exh. 42). Mr. G.R. Vaidya, learned Advocate for the appellant/ accused concedes to the submission made on behalf of the prosecution that there has been due compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 as disclosed in the evidence of P.W.3 Sudhakar Jagtap. 6. According to P.W.3 Sudhakar Jagtap, he called for the services of panchas from local school – Janta Vidyalaya, Murud and had explained the information received by him to the panch P.W.2 Arun Patil and co-panch Prabhakar Patil, who came to the police station in response to the requisition for them made to the local school. He further deposed that Dr. Malbhage, the medical officer also joined him for the purpose of the raid in response to the requisition made by him vide letter (Exh. 37). All of them proceeded to Latur Barshi Road, after making entry in the station diary, and according to P.W.3 Jagtap, White Ambassador Car bearing registration No.AP-15/G-2244, driven by the appellant/accused was intercepted on Latur Barshi Road in presence of the panchas. 5 Cri.Appeal No.501/2010 7. P.W.3 Sudhakar Jagtap further deposed that the driver of the said car gave his name as Laxman Rajanna Bhusarak, the accused before the Court. His evidence further discloses the facts about detection of 90 Kgs. of Ganja from the cushions of the seat and the bonnet. According to him, the material for sampling was taken from every packet recovered from the cushions and the bonnet which contained the contraband, and the material was divided into two parts and sealed in the two separate packets as two samples in the presence of the panchas. 8. P.W.2 Arun Patil, a teacher from Janata Vidyalaya, Murud deposed that, he acted as a panch and had witnessed the search and seizure of 90 Kgs. of Ganja from the seat cushion and bonnet of the Ambassador Car bearing Registration No.AP-15/G-2244 intercepted by the team of policemen headed by P.W.3 Sudhakar Jagtap on Latur Barshi Road in the morning of 1.12.2004. He identified the accused persons before the Court including the present appellant/ accused as the persons who were in the vehicle at the material time. He also identified the muddemal property, the Ganja (Article 4) as well as the sample packets bearing his signatures and that of the co-panch. Generally, he corroborated P.W.3 Sudhakar Jagtap as regards the outcome of 6 Cri.Appeal No.501/2010 the search and seizure leading to the recovery of the contraband from the said vehicle. 9. Examination-in-chief of P.W.2 Arun Patil discloses that he and the police went to the spot by police jeep. This averment, learned Advocate for the appellant argued, is in conflict with the avemrents of P.W.3 Sudhakar Jagtap in his cross-examination inasmuch as P.W.3 Sudhakar Jagtap deposed that all of them went to the spot walking. However, search and seizure panchanama Exh. 34 drawn by P.W.3 Sudhakar Jagtap corroborates the panch witness P.W.2 Arun Patil on this aspect. P.W.3 Sudhakar Jagtap deposed that after the search and seizure operations, he had prepared a detailed panchanama Exh. 34 and obtained the signatures of the panchas, Dr. Malbhage and the accused persons at the spot. He had testified that the contents of the panchanama Exh. 34 were true and correct. Yet, there is no further cross- examination of P.W.3 Sudhakar Jagtap in relation to the said conflicting averment. Fact remains that, search and seizure operations were carried out at the spot near Krishna Hotel in the presence of the panchas and, therefore, no weight can be attached to the abenation which crept in the cross-examination of P.W.3 Jagtap. 7 Cri.Appeal No.501/2010 10. There is no specific defence of the accused except that the car was found abandoned and he had been roped in the present case. Evidence further discloses that the sample was sent to Forensic Science Laboratory and the results of analysis led to the detection of Ganja vide C.A. report Exh. 56. 11. Mr. G.R. Vaidya, learned Advocate for the appellant/ accused, relying on the judgment of the Allahabad High Court in the case of Munhna Vs. The State & Anr. (2002 Cri.L.J. 4274), submitted that, in absence of any investigation regarding the owner of the said vehicle and from the fact that the packets from which the Ganja was removed did not smell, the appellant/ accused cannot be said to be in conscious possession of the contraband. Countering these submissions, learned A.P.P. submitted that, Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 raised the presumption of culpable mental state of the appellant/ accused and it was for the appellant/ accused to have rebutted such presumption by adequate proof that he had no such mental state and such proof must be of the standard to make the Court believe the non-existence of such state on the part of the appellant/ accused beyond reasonable doubt. He further pointed out from the Munna’s case (supra) that the facts therein differ from the instant case inasmuch as the Charas – contraband in the 8 Cri.Appeal No.501/2010 Munna’s case was found in the special cavity in the vehicle driven by Munna and the contraband in the present case was found in the bonnet of the vehicle driven by the appellant/ accused, which certainly the accused as a driver of the vehicle, was expected to notice and consequently know about the concealment of the article in the bonnet. 12. Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under : “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 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 intention, motive, knowledge of a fact that 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.” It raises a presumption regarding culpable mental state of the accused the rebuttal of which can be achieved by proving the fact that he had no such mental state. Sub-section (2) of Section 9 Cri.Appeal No.501/2010 35 of the said Act further explains that 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 preponderance of probability. This puts on the shoulders of the appellant/ accused a heavier burden, which can be equated with the burden cast on the prosecution, for rebuttal of the presumption regarding existence of the culpable mental state of the accused. 13. In the instant case, the contraband was not only found concealed in the cushions of the seat inside the said vehicle but it was also found concealed in the bonnet. In common course of natural events, regard being had to the human conduct, a driver of the vehicle is expected to have a look into the bonnet for checking the engine before he takes on outstation journey. The vehicle in question was registered at Yendapalli, District Karimnagar (Andhra Pradesh) vide particulars of registration at Exh. 58, and was intercepted on Latur Barshi Road in village Murud, Taluka and District Latur. The appellant/ accused being the driver, was in custody and control of the said vehicle at the material time. Fact of concealment of a packet in the bonnet can be said to be to the knowledge of the appellant/ accused. Normally, anybody would have questioned the keeping of the articles in the bonnet when dickey was the proper place for keeping the luggage. On the other 10 Cri.Appeal No.501/2010 hand, the accused did not examine himself or anyone else in his defence to vouch for the ignorance of the fact of concealment of the contraband in the bonnet. There is nothing in the evidence of the prosecution to suggest that he could not have had known the fact of concealment of the packet in the bonnet. This would only mean that the appellant/accused failed to rebut the presumption that would arise in favour of the prosecution under Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused, therefore, can be said to be in conscious possession of the contraband at the material time. Sadly, it appears, there has been no in-depth investigation regarding involvement of the owner of the said vehicle in the crime. But it cannot wash away the culpability of the appellant/ accused who was in control of the said vehicle at the material time. The appeal must, therefore, fail. 14. Mr. Vaidya, learned Advocate for the appellant, at the end of the judgment, made submissions that the sentence in default of payment of fine is too harsh particularly considering the fact that the accused was merely a driver of the vehicle and is not in a position to pay the fine. Learned A.P.P. submitted that the minimum punishment is not less than 10 years R.I. with minimum fine of Rs.1,00,000/- and there is no transgression of law in inflicting in default punishment for the additional period of one year. 11 Cri.Appeal No.501/2010 It is true that the commercial quantity of Ganja was seized, and minimum substantive sentence prescribed by law is 10 years R.I. and fine of Rs.1,00,000/-. However, no minimum sentence for in default of payment of fine has been prescribed by law. Evidence discloses that the owner of vehicle was somebody else and the appellant/ accused was merely a driver. Sadly the police have not made investigation to rope in the owner. The role played by the appellant/ accused is only of a carrier. Reduction in default sentence is, therefore, justified. The appellant/accused is, therefore, sentenced to suffer 10 years R.I. and to pay fine of Rs. 1,00,000/- and in default of payment of fine, to undergo sentence of one months R.I. 15. Mr. G.R. Vaidya, learned Advocate made sincere efforts to espouse the cause of appellant/ accused as amicus curiae. He be paid an amount of Rs.5000/- (Rupees five thousand) as fees. ( U.D. SALVI, J. ) fmp/cri501.10