: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY SIDE JURISDICTION SIDE JURISDICTION SIDE JURISDICTION CRIMINAL APPEAL NO.822 OF 2006 CRIMINAL APPEAL NO.822 OF 2006 CRIMINAL APPEAL NO.822 OF 2006 Ms. Daisy Angus a British National, aged 25 years, presently undergoing sentence at Yervada Central Prison, Yervada, Pune ...Appellant. V/s. 1. Union of India At the instance of the The Superintendent of Customs, Air Intelligence Unit, Sahar Airport, Mumbai 2. State of Maharashtra ...Respondents. Mr.Mahesh Jethmalani a/w Shri Ayaz Khan & Nilofar Saiyed i/b M/s. Lalla & Lalla for the Appellant. Mr.H.V.Mehta, advocate for the Respondent No.1. Mrs.V.R.Bhosale, APP for the Respondent/State. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE : 5th April, 2007. DATE : 5th April, 2007. DATE : 5th April, 2007. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant, who is accused no.1 in N.D.P.S.Special Case No.30 of 2003, was convicted by the Special Judge City Civil & Sessions Court, Greater Bombay for the offences punishable under Section 20 (1)(b) read with Section 8(c) of the N.D.P.S.Act and under Sections 28 read with 23 and 8(c) of the N.D.P.S.Act. She was sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1 lakh and in default to undergo further R.I. for one year on each count. By : 2 : this appeal, she has challenged the conviction and sentence. 2. Prosecution case in brief, is that the complainant M.Jaykumar Superintendent of Customs Department, was attached to Air Intelligence Unit of Customs at Sahar Airport, Bombay. On 21-11-2002 at about 9.45 p.m., the accused no.1, who is appellant and accused no.2 Yoram Kadesh, who was acquitted by the trial Court, had come with their baggage to the airport with the tickets for Bombay-Amsterdam-Berlin sector issued by North West airlines. The accused no.2 Yoram Kadesh had two bags but they were not checked in. However, the accused no.1 had in all 2 bags, which were submitted for being checked in. North West airlines was maintaining its own X-ray machines for screening the baggage, which were checked in by the passengers. When the baggage of accused no.1 was being checked under the X-Ray machine, one Blue Coloured Delsey zipper suitcase was not cleared. Therefore, the said suitcase was opened and the articles therein were removed but still the bag was unusually heavy. In view of this, staff members of North West airlines immediately gave massage to the officers of Air Intelligence Unit of Customs at the Sahar Airport. Officers of Air Intelligence Unit immediately rushed to the spot. It was found that the : 3 : said Delsey zipper suitcase was having false bottom with some concealment. It was also noticed that the accused no.1 was accompanied by the accused no.2 Yoram Kadesh, who was an Israeli national and both were travelling together to Berlin. The accused-appellant was having British and French passports. Two panch witnesses were called and they were informed that during the screening and physical check, the security staff had noticed some concealment in the false bottom of blue coloured Delsey zipper suitcase of the appellant. Appellant had identified the said suitcase, besides one more Polo trolley bag and one paper carry bag as belonging to her. On being questioned the appellant denied that she had concealed any narcotic drug in the said bag and she denied any knowledge if the said bag contained any narcotic drug. Thereafter, the appellant alongwith the baggage and the panchas were escorted to the office of A.I.U. for further investigation. As the accused no.2 Yoram Kadesh was earlier seen in conversation with the appellant, he was also intercepted. He was having one black coloured polo trolley bag and one blue coloured zipper handbag. Both these bags were not checked in and on checking no contraband articles were found in those two bags. False bottom of the Delsey zipper suitcase of the present appellant was ripped open and it was found that false bottom consisted of 3 large and 4 small : 4 : packets containing brown coloured substance concealed in the specially made cavity in the false bottom. Contents of these packets were tested on the lonscan machine and test was positive for the presence of Hashish. Collective weight of the contents was found to be 10 kg. From each packet 3 samples of 5 gm. each were taken and the same were kept in small polythene bag, which was kept in the envelope and then duly sealed. 3. During the course of investigation statements of the present appellant came to be recorded. According to her she was acquainted with the accused no.2 Yoram Kadesh since 1999 and she had come to India on a short visit in the month of November, 2002. She had paid visit to her parents who were staying in Himachal Pradesh. She had planned to visit Australia for which she had taken ticket but that ticket was to lapse within two days. Therefore, she had given her ticket as well as passport to the accused no.2 for re-validating her ticket. According to her, the accused no.2 asked her whether she would join him upto Berlin as he had excess luggage to be carried to Berlin and he had also offered that she could enjoy holidays at his expense in Germany. Not only this he would make arrangement for his journey from Berlin to Australia at his cost. She accepted his proposal as she also wanted to meet some of her : 5 : girlfriends in Germany. This decision was taken when both the accused were in Delhi. According to her she was to join the accused no.2 in Bombay. However, she missed her train on 19-11-2002 and she came late to Bombay. The accused no.2 was staying in hotel Causeway. After getting address from him, she also went to the same hotel and stayed in the same room alongwith the accused no.2. According to her, her bag was torn in the journey, therefore, the accused no.2 offered to put her belongings in his Delsey zipper suitcase as they were to travel together. She agreed. However, she found that inner zipper of the bag was jammed up and, therefore, she packed some of her belongings into the bag. She questioned accused no.2 Yoram Kadesh if there was anything objectionable in the said bag. However, he assured her that she should not worry since it consisted only gifts of incense sticks and he would himself carry bag alongwith him. Thus, though she admitted that she had checked in that bag, she denied that she had any knowledge about the Hashish or any contraband drugs in the same. Thus, she denied conscious possession of the Hashish, which was found concealed in the false bottom of the said Delsey zipper suitcase. Thereafter statement of the accused no.2 was also recorded. He also showed ignorance about the contents of the bag and he denied that he had owned that bag though he admitted : 6 : that he had seen the bag in the room of the hotel, after he had come back at about 4.00 p.m. after confirmation of the tickets. Statement of the present appellant was recorded again. She also made written statement before the Special Judge and she took consistent stand that the said Delsey zipper suitcase was given to her by the accused no.2 and she was not aware that it contained any contraband drug. The samples were referred to Chemical Analyser and it was confirmed that they were Hashish. After investigation, the complaint was filed by Jaykumar the Customs Superintendent. 4. Vide Exhibit 2 charge was framed against both the accused. On behalf of the prosecution in all 24 witnesses were examined. Several documents and the statements of the accused persons, recorded under Section 108 of the Customs Act, were placed on record. After hearing the learned Trial Court acquitted accused no.2 Yoram Kadesh but held the present appellant guilty on the charge of being found in possession of narcotic drug and making an attempt to export the same from India and sentenced her as stated above. 5. In the appeal memo several grounds were taken to assail the prosecution story that the present appellant was found in possession of any narcotic drug : 7 : and particularly, the Hashish. However, Mr.Jethmalani the learned counsel for the appellant, fairly made a statement at the outset that he would not challenge the prosecution case about recovery, seizure, taking of samples, reference of the same to the experts and the report of the Chemical Analyser. He conceded that in view of the evidence on record, it must be held that in the false bottom of Delsey zipper suitcase about 10 kgs. of Hashish was found concealed and it was in 7 packets as alleged by the prosecution. His main attack against the prosecution is about the conscious possession of the present appellant. He vehemently contended that the present appellant was a young girl aged about 22 years and she was involved in providing health services to the poor people in the different parts of the world and particularly in the backward countries in Africa. She was naive and inexperienced in comparison to the accused no.2 Yoram Kadesh, who was aged about 35 years and who was suspected to be dealing in narcotic drugs even by the customs department and for this purpose the customs department had also tried to make some investigation and collected evidence from Manali in Himachal Pradesh and Goa where brother of Yoram Kadesh was running shops. Even according to the prosecution, the accused no.2 had some dealings about narcotic drugs with some person in Goa and for that purpose the customs authorities had : 8 : instructed their local officers to make investigation in this line. However, as per the record of customs department itself due to the delay in receiving the message by the officers in Goa, no material or information could be collected against the accused no.2 and his accomplices in Goa. He contended that if the whole matter is viewed from this angle, it would appear that the accused no.2 must have concealed Hashish in the said Delsey zipper suitcase and therefore, he had offered her free journey and stay to Germany at his cost to the present appellant. According to him he had told her that his baggage was excessive therefore, he wanted company of the present appellant and very intelligently he handed over the Delsey zipper suitcase to the appellant after concealing Hashish in the same and made her to check in the said bag as her own and she did not deny the same till then. However, she consistently denied knowledge about the contents of the same. He further contended that because her bag was torn, she accepted the proposal of the accused no.2 to put her belongings in the Delsey zipper suitcase provided by him and then she also checked in the said bag as per own because her belongings were in that bag. According to him, investigating officers did not make appropriate investigation to find out the torn bag, which was left in the hotel room particularly when the managers of the : 9 : hotel informed that the rooms are cleaned within 2-3 minutes after the guests checked out from the room and as it was torn bag, it was not to be preserved or retained by the management. According to him the bag must have been thrown away by some sweeper but no attempt was made to record statement of any sweeper who had cleaned the room. 6. Mr.Mehta the learned counsel for the Customs, however, supported the conviction and sentence on the ground that the appellant herself had checked in the said Delsey zipper suitcase as her own bag and, therefore, she was not in a position to deny her possession. She admitted possession of the bag and once in the said bag narcotic drug or Hashish was found, the presumption is against her and burden lies on her to rebut that presumption. According to Mr.Mehta, the appellant did not produce any evidence and she could not rebut the presumption against her and therefore, the learned trial Court was justified in holding that she was in possession of Hashish and was trying to export the same. 7. In view of the stand taken by the learned : 10 : counsel for the appellant, controversy in the present appeal is limited only to the conscious possession of the appellant. Before dealing with the evidence of the present case, it will be appropriate to set out legal position in this respect. Section 35 and Section 54 of N.D.P.S.Act read as follows: 35. Presumption of culpable mental state 35. Presumption of culpable mental state 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. (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. 54. Presumption from possession of illicit 54. Presumption from possession of illicit 54. Presumption from possession of illicit articles.- articles.- articles.- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of - (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or : 11 : (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.] From the language of Section 35, it is clear that in any prosecution for an offence under the N.D.P.S.Act which requires culpable mental state of the accused, the Court shall presume existence of such mental state. However, the presumption is rebuttable. It is for the accused to prove that he had no such mental state with respect to the act charged as an offence in that prosecution. In view of this section "culpable mental state" includes knowledge of a fact and belief in, or reasons to believe, a fact. Standard of proof for rebuttal of this presumption is stated in subsection 2 of Section 35. For this purpose, fact is stated to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by the preponderance of probability. In view of Section 54, unless and until the contrary is proved, it may be presumed that the accused had committed an offence under this Act in respect of narcotic drug for the possession of which he fails to account satisfactorily. From this it is clear that burden is on the accused to account for : 12 : possession satisfactorily to rebut this presumption also. 8. About the standard of proof for rebuttal of the presumption under Section 35, Mr.Jethmalani placed reliance on Abdul Rashid Ibrahim Mansuri v. State of Abdul Rashid Ibrahim Mansuri v. State of Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000(1) SC 471 Gujarat 2000(1) SC 471 Gujarat 2000(1) SC 471 wherein gunny bags containing charas were stacked in the auto-rickshaw. Two other persons were arrayed but not arrested in the matter. Rickshaw driver was put to the trial. According to him the gunny bags were stacked in the auto-rickshaw by the passengers and he had no knowledge about the contents of the same. Thus, even though the bags containing charas were found in the rickshaw in his possession still he was not in conscious possession of the contraband charas. After dealing with the facts of the case, Their Lordships of the Supreme Court observed as follows: "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 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 degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the court entertain strong doubt regarding the accused’s awareness about the : 13 : nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt 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 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." In view of this if the Court entertained strong doubt regarding the accused’s awareness about nature of the substance in the bags, benefit of doubt has to be given to the accused. 9. Division bench of this Court had an opportunity to analyse what the possession means in Rubyana alias Rubyana alias Rubyana alias Smita Sanjib Bali v. State of Maharashtra 1996 CRI.L.J. Smita Sanjib Bali v. State of Maharashtra 1996 CRI.L.J. Smita Sanjib Bali v. State of Maharashtra 1996 CRI.L.J. 148. 148. 148. In paragraph 6 of the said judgment, Division Bench referred to several Supreme Court authorities. It will be useful to quote complete paragraph 6 which reads as follows: : 14 : "6. The sine qua non for attracting the penal provisions, viz. Section 20 and 21 of the N.D.P.S.Act, and Section 25 read with Section 7 of the Arms Act is that the appellant must be found in possession of the contrabands and the fire arms. The term "possession" is not defined in the N.D.P.S.Act. The term "possession" has been judicially construed to mean, in various decisions, as under:- ’Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object. (See in this connection Dula Singh v. Emperor, AIR 1928 Lahore 272 : (1928 (29) Cri. L.J. 481), Kuldip Chand v. Emperor, AIR 1934 Lahore 718 : (1935 (36) Cri. L.J. 300), Sunder Singh v. Emperor, AIR 1936 Lahore 738: (1936 (37) Cri. L.J. 939), and Ram Charan v. Emperor, AIR 1933 All 437 : (1933 (34) Cri. L.J. 930)). The Apex Court in Supdt. and L.R. v.Anil Kumar Bhunja, (1979) 4 SCC 274 : (1979 Cri. L.J. 1390), observed that the test for determining "whether a person is in possession of anything is whether he is in general control of it. "The Apex Court, after examining Salmond’s jurisprudence and other earlier decisions rendered by the Court, observed thus (at pp 1392-93 of Cri.L.J.):- "13. ‘Possession’ is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of ‘possession’ uniformaly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of ‘possession’. Much of this difficulty and confusion is (as pointed out in Salmond’s Jurisprudence, 12th Ed.1966) caused by the fact that possession is not : 15 : purely a legal concept. ‘Possession’, implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, 11th Ed.) 14. According to Pollock and Wright, when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing. 15. While recognising that ‘possession’ is not a purely legal concept but also a matter of fact, Salmond (12th Ed. page 552) describes ‘possession’, in fact", as a relationship between a person and a thing. According to the learned author the test for determining ‘whether a person is in possession of anything is whether he is in general control of it." 16. In Gunwantilal v. State of M.P.(1973) I SCR 508: (1972 Cri.L.J. 1187), this Court while noting that the concept of possession is not easy to comprehend, held that, in the context of Section 25(a) of the Arms Act, 1959, the possession of a firearm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual physical possession of the firearm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognised that whether or not the accused had such control or dominion to constitute his possession of the firearm, is a question of fact depending on the facts of each case. In that connection, it was observed (at p 1189 of Cri.L.J.): In any case disputed question of possession, specific facts submitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the : 16 : thing in question." 10. In view of this it is clear that the possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object. A person, who may not have physical possession, may still have power of control over that substance and if it is so, he may be said to be in possession of that article. As Division Bench observed, in any disputed question of possession, the specific facts submitted or proved will alone establish existence of the