CRIMINAL APPEAL (S.J.) No.762 OF 2009 With CRIMINAL APPEAL (S.J.) No.830 OF 2009 **** Against the order of conviction, dated 05.09.2009, and order of sentence, dated 14.09.2009, passed in G.R. Case No. 29 of 2009 arising out of Kishanganj Rail P.S. Case No. 8 of 2006 by Sri Ramesh Kumar Rateria, Session's Judge, Katihar **** Ramesh Chandra Thakur (Mandal), s/o late Pallu Prasad Thakur, resident of N.G.P. Ward No. 34, P.S. Bhaktinagar, district Jalpaiguri (W.B.) .. Appellant (in Cr.Appeal (SJ) No.762/2009) Ram Prasad Khandwal @ Khandewal, s/o late Baudree Prasad Khandelwal, resident of Mohalla Bhagat Singh Nagar, P.s. Jalpaiguri, district Jalpaiguri (W.B.) .. Appellant (in Cr.Appeal (SJ) No.830/2009) Versus The State of Bihar .. Respondent (in both the Appeals) **** For the appellant .. M/S Pankaj Kumar Singh and (in Cr.Appeal (SJ) No.762/09) Sanjeev Kumar Singh, Advs. For the appellant .. M/S Sachidanand Chaudhary (in Cr.Appeal (SJ) No.830/09) Lovekush Kumar, Advs. For the State .. Mr. Satya Narayan Prasad, A.P.P. (in both the Appeals) **** 2 P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. These two criminal appeals (Cr. Appeal (S.J.) No.762 of 2009 and Cr. Appeal (S.J.) No.830 of 2009) have heard together and disposed off by the common judgment in view of the fact that both the criminal appeals arise out of common judgment and order, dated 05th September, 2009, passed by Mr. Ramesh Kumar Rateria, Session’s Judge, Katihar, in G.R. Case No. 29 of 2006 (arising out of Kishanganj) Rail P.S. Case No. 8 of 2006. 2. Ram Chandra Thakur is appellant in Cr. Appeal (S.J.) No. 762 of 2009 and Ram Prasad Khandwal @ Khandewal is appellant in Cr. Appeal (S.J.) No. 830 of 2009. Both the appellants have been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and have been sentenced to undergo rigorous imprisonment for ten years each and fine of rupees one lac each and in default of payment of fine further sentenced to undergo rigorous imprisonment for one year each. 3. Prosecution case, as per the written report of the informant, Havildar, Jabbar Khan, is that he along with companions, namely, Nayak Subedar Sainath, A.K. Parjapati, N. Shajik and N.K. Kaladharan, was checking a train, North East, in military bogie, in pursuance of authority no. Head Quarter 33 Corps by letter no. 172506/A1 by which he was deputed for checking the illegally trafficking of drugs in 3 the train. About 07.30 in the evening while the checking was going on the train reached Kishanganj Railway Station then in a military compartment two persons sitting on a black iron box got up from the box and tried to walk away, the informant and his party apprehended both of them and asked about the ownership of the box and what is inside the box. Both the persons at first instance denied the ownership of the box and the same time a V.I.P. attaché case also found beside the said box out of which the smell of ganja was coming out and when the enquiry was made with regard to the V.I.P. attaché case both of them did not give any answer and, on enquiry, disclosed their name as R.P. Khandewal, an ex-military man, and as Ram Chandra Thakur, son of late Pallu Prasad Thakur, resident of N.G.P. Ward No. 34, P.S. Bhaktinagar, district Jalpaiguri, West Bengal. On asking to open the box, first, both of them denied, but, subsequently on enquiry Ram Chandra Thakur opened the box by the key and then it was found that the box was filled with ganja and he also opened the V.I.P. attaché case and that was also filled with ganja. The informant, therefore, immediately informed the senior officer, Colonel A. Basahav and a direction was received to produce both the persons along with the ganja to the G.R.P. Police Station and the accused persons, along with ganja, iron box and V.I.P. attaché case, were produced before Katihar Rail Police Station. The said ganja was weighed which was about 37 Kg. On the basis of written report by the informant the first information report was drawn by the Rail Police, Kishanganj, as the fardbeyan was forwarded to Officer-in-Charge, G.R.P. Kishanganj, and after the institution of the first information report 4 the investigation proceeded and after investigation the charge sheet was submitted against both the accused persons, Ram Chandra Thakur and Ram Prasad Khandewal for alleged possession of sixteen packets of ganja, in all, 37 Kg. After submission of the charge sheet offence was taken by order, dated 08.05.2006, and consequently the charge was framed under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for alleged recovery and possession of 33 Kg of ganja from the iron box (trunk) and 4 Kg of ganja in a V.I.P. attaché case. The charges were read over and explained to the accused persons in Hindi to which they pleaded themselves not guilty and claimed to be tried. 4. However, during trial, seven witnesses were examined on behalf of the prosecution. P.W. 1 is Nayak Subedar Sainath, P.W. 2 is Rajendra Prasad Das, P.W. 3 is Arvind Kumar, P.W. 4 is Havildar Jabbar Khan, the informant himself, P.W. 5 is A.K. Parjapati, P.W. 6 is Nayak Saji and P.W. 7 is Ram Kumar Singh. The documentary evidences, adduced by the prosecution, are Exhibit 1, confessional statement of the co-accused, Ram Prasad Khandewal, recorded by the I.O., Exhibit 1/1 is the confessional statement of accused Ram Chandra Thakur, recorded by the I.O., Exhibit 2 is the production-cum-seizure list, dated 21.02.2006, Exhibit 3 is the production-cum-seizure list, dated 24.02.2006, Exhibit 4 is the statement of informant, Jabbar Khan, and Exhibit 5 is the report of Forensic Science Laboratory, Muzaffarpur, dated 28.09.2003. No evidence has been adduced by the defence. The statement of the accused persons recorded under Section 313 of the Criminal Procedure Code. The 5 learned lower Court after considering the oral and documentary evidence and after hearing the learned counsel for the appellants and the State recorded the order of conviction, as stated above. 5. Hence, two appeals have been preferred by two appellants separately as both have been convicted and sentenced by the common judgment. 6. The learned counsel for the appellants has challenged the judgment and the order of conviction recorded by the learned lower Court on the ground that the possession of the appellants has not been proved as possession must be exclusive and also must have been shown in conscious possession. It has further been contended that the material contraband, which is alleged to have been seized has not been produced before the Court and, hence, the prosecution has failed to prove it’s case. It has further been contended that no independent witness has been examined to support the case and show the accused persons can not be convicted by uncorroborated testimony of the police witnesses. It has further been contended that the so called confessional statement of the co- accused is not reliable and is not to be relied for the reason that in statement under section 313 of the Criminal Procedure Code no question has been put regarding the confessional statement of the co-accused and, hence, the opportunity has not been given to the accused to explain the alleged confessional statement. It has further been contended that the witnesses are at variance and evidence of witnesses is contrary to one- 6 another regarding the material particulars and further the confession recorded by the police officer is not admissible in evidence. 7. The learned counsel for the State, however, contended that the possession of the appellants with narcotics by cogent and reliable evidence is proved and merely because the seized article has not been produced before the Court is not a ground to disbelieve the prosecution story and the statement recorded by the investigating officer is relevant and admissible under Sections 66 and 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and prosecution has been able to prove the charges beyond all reasonable doubts. 8. Hence, on rival contention of the parties the question for consideration whether the prosecution has been able to prove the charges against the accused persons beyond all charges lacking the accused persons were in possession of the ganja. 9. Now I proceed to consider the submission in the light of the submissions made by the prosecution case in the statement of the informant that in pursuance of order in authority no. Head Quarter 33 Corps, letter no. 172506/A1 he was checking the illegal trafficking of drugs in North East train in military compartment, saw two persons sitting on the iron box and while the prosecution party started checking then these two persons sitting on the said box got up and started illegally walking down the box and when they were apprehended and enquired about the box and articles in the box they first they denied that the box and V.I.P. attaché case belong to them. From the V.I.P. attaché case smell of ganja was coming 7 out and both, after being apprehended, disclosed their named as Ram Chandra Thakur and R.P. Khandewal and also disclosed their addressed and when they were enquired seriously then Ram Chandra Thakur opened the iron box (trunk) with the key in his possession and then from the iron box and V.I.P. attaché case 37 Kg of ganja was recovered. P.W. 1, Nayak Subedar Sainath, who was member of the raiding party, supported the prosecution case about the checking by them in the North East train and recovery of sixteen packets of ganja from iron box and four packets from V.I.P. attaché case and was weighed at G.R.P. Police Station Katihar which was reported to 37 Kg and has stated about the preparation of the seizure list and in cross examination stated that the key was got from Ram Chandra Thakur which was handed over to the G.R.P. Police, Katihar. P.W. 3, Arvind Kumar, has stated in his evidence that the statement of Jabbar Khan was recorded by the Officer-in-Charge, Katihar Rail Police Station, on the basis of which Kishanganj Rail P.S. Case No. 8 of 2006 lodged and during investigation he recorded the confessional statement of both the co-accused on which the accused persons signed and gave their thumb impression. He has proved the confessional statement of R.P. Khandewal, which has been marked as Exhibit 1 and also proved the statement of Ram Chandra Thakur recorded by him in his pen and signature, which has been marked as Exhibit 1/1. He stated that he also prepared the production-cum-seizure list. He has also proved the production-cum-seizure list which has been marked as Exhibit 2 and has also proved the seizure list in his pen and signature which has been marked as Exhibit 3. Further, he gave the 8 investigation of the case to S.I., R.K. Singh, in view of the training course of A.T.S. and after training he assumed the charge of this case and with the order of the Court concerned he sent the seized article for examination by the Forensic Science Laboratory and the report of the Forensic Science Laboratory was received. He also identified the report in the Court. He stated that the seized contraband is not before him. However, he stated that he assumed the charge of investigation s the Officer-in-Charge was on leave. He has further stated that at the time of the seizure of such contraband he was not in the bogie where the accused persons were apprehended. P.W. 4, Havildar Jabbar Khan, supported the prosecution cased about the recovery of the ganja, who kept key from which the box was opened. He has also stated that on seeing the prosecution party making the checking in the bogie the two persons started going away from the box on which they were sitting and the, in enquiry, they disclosed the box belonged to him. P.W. 5, A.K. Parjapati, also supported the prosecution case that both accused persons were sitting on the box. Further, this witness stated that he could not remember that which of the accused gave key though supported the seizure list having been prepared before him. P.W. 6, Nayak Saji, has also supported the prosecution case regarding the black box and V.I.P. attaché case found in the train and about the two unknown persons roaming there and from the keys which was in their possession the box was opened from which the ganja was recovered. This witness has also identified the accused persons as they were the persons from whose possession the ganja was recovered and disclosed their 9 names as R.P. Khandewal and Ram Chandra Thakur. In his cross examination he has also stated that the said key of the box was recovered from the pocket of accused Ram Chandra Thakur and has stated that this witness has identified this accused, Ram Chandra Thakur, in Court. P.W. 7, Ram Pukar Singh, also supported the prosecution case and has stated that on 21.02.2006 he was posted as Assistant Sub Inspector of Police, Rail Police Station, Katihar, and on that day, Havildar, Jabbar Khan, along with other associates came to the Police Station, along with the force of the military and officers and brought with him black box and V.I.P. attaché case and the two accused persons and produced the article before him in the Police Station and Arvind Kumar prepared the seizure list and from the box and suit case sixteen packets weighing about 37 Kg of ganja was seized. He has further stated that the accused persons who had been caught at the place of occurrence were sent to Kishanganj and after them the articles were also sent. He also identified the accused persons in the Court. 10. Though P.Ws. 1, 4, 5 and 6 supported the prosecution case regarding the recovery of ganja from the possession of the appellants, learned counsel for the appellants submits that the possession of ganja has not been proved. It has further been contended that merely because accused persons sitting on the box with all difference can not be inferred that the appellants were in possession of ganja. It has further been contended that the said recovery of ganja from the box was itself recovered from the train and merely because the accused persons were sitting on the box it can not be said that they were in possession. It has further been 10 contended that not only possession, but, the prosecution must have to establish that the possession was exclusive and the appellants were in conscious possession of ganja and, hence, contends that merely because they were sitting on the box it can not be inferred that the accused persons were in exclusive and conscious possession was denied and has relied upon decisions reported in (2004) S.C.C. (Cr.), 838 (State of Punjab Vrs. Balkar Singh & Anr.) as well as (2009) 3 S.C.C. (Cr.) 1311 (State of Punjab Vrs. Gurnam Kumer & Ors.),and A.I.R. 1996 S.C. 3033 (Mohd. Ahmad Khan Vrs. Narcotic Control Bureau & Anr.) and, hence, contends the prosecution has not been able to prove by the reason cogent and reliable evidence to prove the conscious possession of the appellants. 11. However, in case reported in (2004) S.C.C. (Cr.) 838 (State of Punjab Vrs. Balkar Singh & Anr.) accused was alleged to have been found present at a place where 100 packets of poppy were recovered while sitting on a bag and failed to prove satisfactory explanation and held that the appellant can not be held in conscious possession and merely because they did not give satisfactory explanation that may not be a ground. However, in a decision reported in (2010) 1 S.C.C., 369 (Om Prakash @ Baba Vrs. State of Bihar) one of the witnesses, P.W. 3, in his evidence stated that house from where recovery had been made belong to another person and not to the appellant and this witness has not been declared hostile by the prosecution itself despite the statement which completely against the prosecution story in the facts and 11 circumstances of the case and further no evidence on record to show the appellant’s exclusive ownership and possession of the house. A decision reported in (2009) 3 S.C.C. 1311 (State of Punjab Vrs. Gurnam Kumer & Ors.) the police apprehended a maruti car and heroin recovered and the accused persons from the said car started fleeing away and one driver apprehended and the said driver disclosed that when the house of one Heera singh and Fargab would be raided then huge quantity of contraband was recovered and, thereafter, raid was made in the village and from the house of two packets of heroin were recovered in which three female members were residing in the house, one old lady and two other were her daughters-in-law and it was held that it does not establish that all of them were in conscious possession of narcotics. In decision reported in A.I.R. 1996 S.C., 3033 while the accused were being interrogated it was learnt that in another flat about 50-60 thousand of mandrax tablets were there and then the police raided the flat, broke open the lock for conducting the search and in the facts and circumstances held that except the information received there is no other acceptable evidence to prove ownership and possession of the belonging and further the reliance by the prosecution on statement of the accused under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, will not be available as the appellant has retracted the confession. 12. However, the decision relied upon by the learned counsel for the appellants is not applicable to the facts and circumstances of the present case as in all those cases relied by the learned counsel for the 12 appellants the question of ownership of the house was concerned and the fact also are quite different in which it was held in those cases that ownership of the contraband or house have not been established. However, in the present facts and circumstances, the fact that while the informant was checking the contrabands in the train and on seeing the prosecution party was checking the contrabands in the train the accused persons got up from the box on which they were sitting and were likely to be walked down from box when they were apprehended and enquired by the checking party the accused persons first denied and shows their inability about the ownership of the box or about the material in the box, but, when a further enquiry was made and their names and addresses were enquired from the informant one of the accused produced the key by which the box was opened and the ganja was recovered from the box as well as from the V.I.P. attaché case and, hence, under the facts and circumstances the conduct of the police was relevant for consideration of this fact. When the prosecution party was conducting the checking if the accused persons had no knowledge of ganja they may not have got up from the box and may not have tried to walked down this conduct suggests their knowledge and guilty mind and further the fact that they first denied about the knowledge, but, subsequently they produced the key by which the box was opened and the ganja was recovered and so they were apprehended and produced before the Police Station at Katihar. They made confessional statement which has been marked as Exhibits 1 and 1/1. However, it has been contended that as a confession made before the police is no confession in the eye of law. 13 However, Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides that this Act is in paramateria with Section 108 of the Customs Act and, hence, the statement made by the accused may be a relevant consideration for concluding whether the accused is involved in such crime or not. However, the learned counsel for the appellants has further contended that in statement recorded under Section 313 of the Criminal Procedure Code no question has been put to the accused persons about confessional statement. It is true that no question has been put by the learned Court below in statement under Section 313 of the Criminal Procedure Code regarding the evidence about the confessional statement of the accused persons and no opportunity has been given to the accused to give an explanation regarding the confessional statement, hence, this fact of evidence and circumstance is discarded from taking consideration. However, the evidence that the accused persons were sitting on the box and on seeing prosecution party making the checking tried to got up and walked down and when apprehended they stated that the box does not belong to him and on further enquiry accused, Ram Chandra Thakur, produced the key by which the box was opened and the seizure of key mentioned in seizure list, hence, article recovered suggests that the prosecution has been able to establish that the box belonged to the appellants and the appellants had knowledge of ganja in box and were in conscious possession of ganja in the box and V.I.P. attaché case. 13. The learned counsel for the appellants has further contended that the seized contraband has not been produced in Court and 14 for which reliance has been placed on a decision reported in (2004) S.C. (Cr.), 2028 (Jitendra & Anr. Vrs. State of M.P.). The learned counsel for the appellants further contended that no independent witness has been examined and so the accused persons has not been convicted by uncorroborated testimony of the police witness. However, in the facts and circumstances of the case, the informant was checking the contraband in the North East train in a military bogie. The train was in a running state and, hence, in such a circumstance there is no possibility of a raid being conducted or availability of independent witness at the time of raid. However, merely because the witnesses are police witness or members of the raiding party whose evidence can not be rejected outright. However, what is required to go into the evidence of witnesses and if any infirmity is found then their evidence may be liable to be rejected. Had in such circumstance the only safe guard is to strictly scrutinize the evidence adduced by the witnesses as there was no possibility of independent witness in military compartment. 14. The learned counsel for the appellants further contended that the witnesses are at variance in the deposition. However, the variance of the witnesses as pointed out by the learned counsel for the appellants that as P.W. 1 has stated that when they made checking of the military bogie in a running North East train then from the iron box and suit case which belong to Ram Chandra Thakur and R.P. Khandewal sixteen packets of ganja was recovered after opening the box by the key of Ram Chandra Thakur whereas P.W. 4 has stated that two persons were sitting on 15 a black box who started walking away on seeing they and when they enquired then both stated that the box does not belong to them and P.W. 5 has stated that it was learnt that owner of both the articles was R.P. Kahndewal and Ram Chandra Thakur. However, it is stated that the statements of both the witnesses are different and so it can not be believed. However, question is whether the evidence of witnesses are contradictory, however, witnesses may have the different ability to express then taking into consideration the three evidences it can not be said that whatever stated in the three statements can not co-exist together and if three statement considered it can not be said to be contradictory. Different persons may express differently merely because all the three persons have not stated the fact in same and similar word on this ground their evidence can not be rejected. It is prudent to mention that if the three persons