IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 160 of 1997 Date of Decision : July 13, 2010 State of H.P. …Appellant. Versus: Thakur Dass & Ors. ..Respondents-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Vivek Thakur, Addl. A.G. For respondents 1,4 & 5 : Ms. Kanta Thakur, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 9.12.1996 delivered by the learned Additional Sessions Judge, Mandi, in Sessions Trial No. 11 of 1996, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act’). 2. The prosecution case in brief is that on 1.12.1995 PW-8 Amba Dutt, then posted as Addl. SHO, Police Station, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Sundernagar, along with ASI Roop Lal, H.C. Prem, LHC Ram Dass, Constable Zamal Din, Tarlok Chand and PW-1 ASI Baldev Singh had laid a Naka at Dhanotu Chowk. According to the police, this barrier had been erected since they had been informed that a theft had taken place in the Punjab National Bank, Pandoh and the culprits had run away. Therefore, the vehicles were stopped. PW-2 Gurdayal Singh runs a small tea stall near Dhanotu Chowk. He was providing tea to the police officials. Since it was late at night he was requested to keep the shop open and associated with the search of the vehicles. At about 3.15 a.m. on 2.12.1995 Taxi No. HP-02-2102 came from Mandi side. The same was stopped. The vehicle was being driven by accused Shashi Pal. The other four accused were sitting in the taxi. When the occupants of the taxi were asked as to where they were going at that late hour of the night they kept silent. This aroused suspicion in the mind of the police officials who then sought consent of the 5 accused to search them and the vehicle. When the dicky of the taxi was opened, a bedding was found in it. The accused were questioned as to who was the owner of the bedding. They kept silent. Thereafter, notices were given to all the accused informing them that the luggage was to be searched and seeking their option as to whether they want to be searched before a Gazetted Officer or Magistrate or before the Sub Inspector. In fact such notices were not necessary since Section 50 of the Act would not be attracted. When the 3 bedding was opened it was found that it contained 2 blankets, one bed sheet, one parna (towel) which had been tied-up to form a bag (Gathri), one bag, Theli and one plastic bag were also recovered. On opening of the Theli, bag and the Gathri, charas was found. In all, 13 polythene packets were recovered from the Gathri, bag and the Theli. A weighing scale was arranged by independent witness Gurdayal Singh and on weighment the charas was found to be 17 kgs. Two samples each were drawn from the charas recovered from the Theli, bag and the Gathri. Thereafter, the six samples along with the bulk charas were sealed in one big parcel and recovery memo was prepared. Other codal formalities were completed at the spot. The samples were sent to the C. T. L. Kandaghat, and vide report Ext.PEE the samples were found to be of charas. On this basis the accused were charged with having committed the aforesaid offence. Hence the present appeal. 3. The learned trial Court acquitted the accused mainly on the ground that the police has failed to prove as to from whose conscious and exclusive possession the charas in question was recovered. The learned trial Court has also come to the conclusion that the recovery itself has not been properly proved since the independent witness has not fully supported the recovery. 4. We are assuming for the sake of arguments that it is proved that the charas was found in the bedding recovered from 4 the dicky of the taxi. The matter cannot end here. The prosecution was further required to prove as to which one of the occupants of the taxi was connected with the contents of the bedding. This the prosecution has miserably failed to prove. All the accused remained silent when asked about the ownership of the bedding. There is no evidence worth the name to link any one of the accused with the bedding in question. The bedding could have belonged to the driver. It could have belonged to one of the four passengers. It could be that the four passengers who hired the taxi were jointly carrying the charas. It may be that the driver was also involved in the smuggling of charas but it is for the prosecution to traverse breach the bridge from “may be” to “must have”. In a criminal case the accused can only be convicted when the prosecution discharges the burden of proof which lies squarely upon it. 5. In a case arising out of the NDPS Act, it is for the prosecution to prove that the recovery of the contraband substance was made from the conscious and exclusive possession of a particular person or persons. Once this is proved then the prosecution unlike in other criminal cases is not required to show that the accused had the mens rea to commit the offence. The NDPS Act makes an exception from the normal rule of criminal law and once the prosecution proves that the contraband substance has been recovered from the conscious and exclusive possession of any person(s) then there is a 5 presumption of culpable mental state in terms of Section 35 of the Act, which reads as follows: “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.” 6. In view of the aforesaid provision of law, it is more important for the prosecution to discharge the initial onus cast upon it to prove that the offensive substance was recovered from the conscious and exclusive possession of the accused. The Act in question provides for stringent punishment. In such an eventuality, the prosecution must discharge the onus which rests on it. 7. We are here dealing with a case where a taxi was stopped in the wee hours of the morning. Accused Shashi Pal is admittedly the owner and driver of the taxi. The other four accused were passengers in the taxi. The three bags containing the charas were recovered from the bedding. The prosecution made no efforts whatsoever to link the various articles in the bedding i.e. blankets, bed sheet, gathri etc. with the accused. Investigation in such case especially when huge quantity of contraband was recovered should have been made on scientific basis. Assuming that in the year 1995 the police officials may not be aware about DNA analysis, then also some efforts could 6 have been made to find out as to where the blankets, bed sheet etc. had been manufactured and sold. This was one way of linking one or more of the accused with the contraband substance. This has not been done. Obviously, one or more of the occupants of the vehicle must have been involved in carrying the charas but we cannot hold all the five accused guilty because it could have been only one out of the five who may have been guilty. No doubt, at least one of the 5 accused was carrying the contraband. However, the police has failed to prove which one of the 5 accused was carrying the contraband. Without any evidence to show who was the owner of the contraband, we cannot be hold any of the accused guilty. We are aware that we are dealing with the case where the quantity of contraband involved is very large and a heinous offence has been committed but we cannot hold the accused guilty without conclusive evidence which points to the guilt of the accused. 8. When the science has advanced so much and DNA analysis can be done, it would not have been difficult for the police to have got sealed the blankets etc. and sent them for chemical analysis. Such blankets in all probabilities would carry some hair spread or skin tissue of the person using such blankets and if the DNA analysis of such hair, skin tissue etc. was done, the same could be used to the blankets with any one or more of the accused and then that would be a piece of evidence to be used against he accused. However, without 7 proving as to who is the owner of the bedding, none of the accused can be held guilty. 9. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. July 13, 2010. (rana)