Madras High Court: In an appeal filed under Section 374(2) of Code of Criminal Procedure, 1973 (CrPC) r/w Section 36-B of Narcotic Drugs and Psychotropic Substances, Act, 1985 (‘NDPS Act’) to set aside the conviction and sentence rendered by the Trial Court, G. Jayachandran, J. has set aside the conviction of the appellant/accused, and has observed that by preponderance of probability, he has established the absence of knowledge, further the evidence relied by the complainant does not prove that the appellant was conscious of the presence of heroin in the parcel given to him by another accused.
In this case, the appellant was alleged to be found possessing 1½ kg of Heroin with intention to transport it illegally to Kuwait, thereby committed offences under Sections 8(c) r/w 21(c), 22(b), 23(c) and 29 of NDPS Act. The issue in this case was, whether the Trial Court was correct in holding the accused guilty of possession of heroin relying upon Sections 35 and 54 of the NDPS Act, which provides for presumption of culpable mental state and the animus to possess.
The Court observed that the Trial Court, for reasons not properly explained, had failed to follow the dictum laid down in Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 and in Noor Aga v. State of Punjab (2008) 6 SCC 417 and has wrongly applied the dictum laid in Madan Lal v. State of Himachal Pradesh 2003 (7) SCC 465 and Megh Singh v. State of Punjab (2004) SCC (Cri) 58 which are factually different from the case in hand.
The Court noted that the appellant claimed that he was not aware of the contents of the parcel given by the absconding accused, as he came and gave the parcel to the appellant saying it contained tamarind and wheat flour. Further, the appellant without any hesitation identified his bag and allowed the officials to examine his bag, as he was not aware of the character of the powder he was carrying, till the officials disclosed to him that it was heroin. Thus, the appellant was not conscious that he was in possession of heroin. Moreover, by preponderance of probability, the appellant has rebutted the presumption of culpable mental state. Further, to establish that the possession was conscious, the prosecution relied on the Call Details Records, however, no proof was produced by the complainant that cell number belongs to the appellant.
The Court also viewed that the previous statement recorded by Police Constable under Section 161(3) of CrPC has to be treated on a par with the statement recorded under Section 67 of the NDPS Act by the Officer of Narcotics Control Bureau (NCB) and the Trial Court erred in referring this inadmissible document to presume culpable mental state of the appellant. It further viewed that the complainant has failed to probe the case properly and there has been a perfunctory investigation at all stages.
The Court observed that “though not in all cases, the carrier can plead absence of culpability, in the peculiar circumstances and facts of this case, the knowledge of contraband in the airbag cannot be attributed to the appellant”. Thus, the appellant is set at liberty in this case.
[Anandam Gundluru v. Inspector of Police, 2022 SCC OnLine Mad 4486, decided on 01.09.2022]
Advocates who appeared in this case :
T.S.Sasikumar, Advocate, for the Appellant;
Special Public Prosecutor N.P.Kumar, Advocate, for the Respondent.