Criminal Appeal No.34 of 2004

6th July, 2005

Petitioner Counsel: Mr. J. P. D'SOUZA
Respondent Counsel: Mr. S. N. SARDESSAI

Cases Cited:
Mr. Milan Sarcanski Vs. State, 1997 ALL MR (Cri) 496=1996(2) Goa L.T. 80 [Para 5,12]
Mazzanti Esposto Gian Carlo Vs. State of Goa, 1996(3) Bom.C.R. 185 5 [Para 14]
Antony Sauri Pilley Vs. State of Maharashtra, 1993 Cri.L.J. 1502 [Para 5,14]
State of Punjab Vs. Balkar Singh, 2004 Drugs Cases (Narcotics) 147 [Para 5,13]
Pabitar Singh Vs. State of Bihar, A.I.R. 1972 S.C. 1899 [Para 5,15]
Ismailkhan Aiyubkhan Pathan Vs. State of Gujarat, 2002 Drugs Cases 56 [Para 5,14]
Jamuna Chaudhary Vs. State of Bihar, A.I.R. 1974 S.C. 1822 [Para 6,9]
Kammari Brahmaiah Vs. Public Prosecutor, High Court of A.P., 1999 ALL MR (Cri) 555 (S.C.)=1999 Cri.L.J. 1134 [Para 7,17]
State rep. by Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu Vs. V. Jayapaul, 2004 ALL MR (Cri) 1461 (S.C.)=A.I.R. 2004 S.C. 2684 [Para 7,17]
Madan Lal Vs. State of Himachal Pradesh, 2003 ALL MR (Cri) 2412 (S.C.)=2003 Cri.L.J. 3868 [Para 7,16,17]
Megh Singh Vs. State of Punjab, 2003 Cri.L.J. 4329 [Para 7,16]
Munna Vs. State, 2004 Drugs Cases (Narcotics) 41 [Para 14]

JUDGMENT

JUDGMENT : - The appellant is challenging the Judgment and Order passed by the Special Judge, in Special Criminal Case No.35/2001. By the said Judgment and Order dated 12th May, 2004, the Special Judge was pleased to convict the appellant/accused for an offence punishable under Section 20(b)(ii) of N.D.P.S. Act, 1985 read with Section 20(b)(ii)(C) of N.D.P.S. Act and was sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh and, in default, to suffer further simple imprisonment for a period of one year.

The brief facts are as under:-

2. It is the case of the prosecution that the Investigation Officer had reliable information that the person staying in Room No.F-7 of hotel Suhas, Mapusa, was in possession of consignment of charas and accordingly the said information was reduced in writing. The information was given to the superior officer and thereafter a raid was conducted after complying with the requisite provisions of Section 42 of N.D.P.S. Act. The accused was found to be in possession of 40 grams of charas which was recovered from his person and the room in which the accused was residing was also searched and it was found that there was charas weighing 1.8 kgs. in the bag which belonged to the accused. Accordingly, the said contraband was seized in the presence of the panchas and a panchanama was made. The charas was sent to the Chemical Analyser who, after proper analysis, gave a report that the said contraband which was seized was charas. Compliance was made of the provisions of Section 57 of N.D.P.S. Act. Charge-sheet was filed against the accused. The accused pleaded not guilty to the charge.

3. It was the case of the accused in his defence that the room in which he was staying was occupied by one Kadir Hussein and that the bag belonged to the said Kadir Hussein. It was contended by the accused that the said Kadir Hussein had left the room before the arrival of the police and that the said Kadir was arrested by the Anjuna Police. The police allowed him to go scot-free and did not make any investigation of the involvement of the said Kadir Hussein in respect of the contraband which was found in the room.

4. The prosecution examined nine witnesses. The trial Court convicted the accused on the basis of the evidence adduced by the prosecution. The appellant is challenging the said Judgment and Order in this appeal.

5. The learned counsel appearing on behalf of the appellant submitted that the prosecution had failed to prove that the accused was in conscious exclusive possession of the briefcase in which the contraband was found. He submitted that the presumption under Sections 54 and 35 of the N.D.P.S. Act could be raised against the accused only after the prosecution had established the conscious possession of the contraband by the accused. He submitted that the room was occupied by one other person namely Kadir Hussein and that the police had not investigated or questioned the said Kadir Hussein. He further submitted that the register of the hotel which had been brought on record also clearly indicated that the room was occupied by two persons. He therefore submitted that there was every possibility that the briefcase belonged to the other occupant and not to the accused. In support of the said submission, he has relied on a number of decisions of this Court and the other High Courts as also the judgment of the Supreme Court. He has relied on a judgment of this Court in the case of Mr. Milan Sarcanski Vs. The State reported in 1996(2) Goa L.T. 80 : [1997 ALL MR (Cri) 496]. He further relied on the judgment of this Court in the case of Mazzanti Esposto Gian Carlo Vs. State of Goa reported in 1996(3) Bom.C.R. 185. He further relied on the judgment of this Court in the case of Antony Sauri Pilley Vs. State of Maharashtra reported in 1993 Cri.L.J. 1502. He also relied on the judgment of the Supreme Court in the case of State of Punjab Vs. Balkar Singh and another reported in 2004 Drugs Cases (Narcotics) 147. He also relied on a judgment of the Supreme Court in the case of Pabitar Singh Vs. The State of Bihar reported in A.I.R. 1972 S.C. 1899. Thereafter he relied on a judgment of the Supreme Court in the case of Ismailkhan Aiyubkhan Pathan Vs. State of Gujarat reported in 2002 Drugs Cases 56.

6. The learned counsel appearing on behalf of the appellant further submitted that the prosecution had not investigated the case properly and that it was the duty of the prosecution to have explored the possibility of the involvement of the other accused namely Shri. Kadir Hussein and in the absence of proper investigation regarding the possibility of the bag being owned by the other occupant in the room, serious prejudice had been caused to the accused and this had resulted in the failure on the part of the prosecution in proving exclusive possession of the contraband by the accused. The learned counsel appearing on behalf of the appellant submitted that it was the duty of the prosecution and the investigating officer not merely to strengthen its case with such evidence so as to enable the Court to record a conviction against the accused, but it was the bounden duty of the investigating officer to go to the root of the matter by making proper investigation and to rule out any other possibility or involvement of any other accused in the crime. He submitted that in the present case the Investigating Officer had deliberately avoided investigating the other accused and occupant of the room. He submitted that this has resulted in failure of justice at the hands of the Investigating Officer. He submitted that on this count the entire prosecution of the accused had been vitiated and the accused was liable to be acquitted at least to the extent of possession of charas to the tune of 1.8 kgs. which was found in the bag which was lying in the room. In support of the said submission he relied on the judgment of the Supreme Court in the case of Jamuna Chaudhary and others Vs. State of Bihar reported in A.I.R. 1974 S.C. 1822.

7. Shri. Sardessai, learned P.P. appearing on behalf of the State vehemently opposed the submissions made by the learned counsel appearing on behalf of the appellant. The learned P.P. initially invited my attention to the seizure report. He submitted that this seizure report had not been disputed by the accused and it was duly signed by him. He further submitted that from the search and seizure panchanama it could be seen that the raid was conducted between 14.30 to 17.30 hrs. and at no point of time the accused had raised any hue and cry regarding seizure of his bag nor had he stated that the said bag did not belong to him. He further submitted that from the said bag a prescription signed by a doctor in favour of the accused was found which clearly established that the bag belonged to the accused and not to any other person. The learned P.P. invited my attention to Exh.21 the hotel register and also to the extract of the register. He further submitted that after information was received by the Investigating Officer which was immediately reduced to writing and a copy of the said information was immediately sent to the superior officer and therefore there was due compliance of Section 42 of N.D.P.S. Act. He submitted that panchanama of the seizure of the contraband was conducted in the presence of the accused and that it was properly sealed and thereafter it was kept in safe custody in the police station and the entry was made in the muddemal register. He also invited my attention to the fact that from the panchanama which was made in the search, the contraband charas which were found in the pocket of the accused and the contraband which was found in the bag was identical as in both cases it was a black cylindrical shaped tablet. He submitted that this sample which was taken in the presence of the panchas and which was properly sealed was sent to the Chemical Analyser who had performed adequate tests before coming to the conclusion that the said contraband was charas. He submitted that therefore any false implication of the accused or the tampering of the drug was completely ruled out. He further invited my attention to the statement which was recorded under S.313 of the Code of Criminal Procedure and submitted that the accused had given evasive replies and had not bothered to answer any question which was asked by the Special Judge and no explanation was offered by him when he had an opportunity to do so. The learned P.P. submitted that as an afterthought written statement was filed by the accused subsequently. He submitted that conscious possession had been duly proved by the prosecution. He further submitted that there was no irregularity in conducting the investigation and no prejudice was caused to the accused. In support of the said submissions he relied on the judgment in the case of Kammari Brahmaiah and others Vs. Public Prosecutor, High Court of A. P. reported in 1999 Cri.L.J. 1134 : [1999 ALL MR (Cri) 555 (S.C.)] and in the case of State rep. by Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu Vs. V. Jayapaul reported in A.I.R. 2004 S.C. 2684 : [2004 ALL MR (Cri) 1461 (S.C.)]. He further relied on the judgment in the case of Madan Lal and another Vs. State of Himachal Pradesh reported in 2003 Cri.L.J. 3868 : [2003 ALL MR (Cri) 2412 (S.C.)] and in the case of Megh Singh Vs. State of Punjab reported in 2003 Cri.L.J. 4329.

I have heard learned counsel appearing on behalf of the appellant and the learned P.P. at length. The learned counsel for the appellant has taken me through the Judgment and Order passed by the trial Court as also the oral and documentary evidence on record.

8. In the present case the prosecution has examined in all nine witnesses in support of its case. P.W.1 Mahesh Kaissare is the Chemical Analyser who has given his opinion on the drugs which were seized by the Police. P.W.1 has stated in his evidence that he was working as a Junior Scientific Officer in the Directorate of Food & Drugs Administration of Panaji since 1994 and before that he was working as a Chemist in 1983 in the same office and he has carried out more than 500 tests on various types of narcotics drugs. He stated that he received two envelopes on 28-08-2001 and that the seals which were fixed on both the envelopes were intact and that they were covered with cellotapes and tallied with the specimen seal impression sent separately by letter dated 27-08-2001. He produced the said letter and seals used. He thereafter has stated that he opened the said envelopes and found that one envelope contained a dark brown colour substance in cyndrical sticks individually wrapped in a colourless transparent polythene bag and the other envelope contained a similar substance weighing 40.73 gms. P.W.1 has given the details of the examination conducted by him and the various tests for identification of the substance and after having given the details of the said tests, he has given his conclusion that the substance which was analysed was charas. He also tendered a report which was submitted by him. It was duly executed. The defence did not challenge this evidence of the Chemical Analyser. Thus the prosecution clearly proved that the said substance which was seized from the accused and from the bag which was found in the room was charas which is a substance prohibited under the N.D.P.S. Act. The prosecution has thereafter examined Shri. Krishna Shetgaokar as P.W.2. He has stated that he was working as a Police Sub-Inspector and was working as a Scientific Assistant since October, 2000. He has given the details regarding the manner in which the sealed envelopes were received by the Office of the Director of Food & Drugs Admn. Panaji and the manner in which these envelopes were kept in the cupboard. The evidence of this witness has also not been challenged by the accused. The prosecution has thereafter examined Shekhar Naik P.W.3 who has been examined as a panch in respect of the search panchanama which was conducted in the room where the contraband was seized. P.W.3 has stated that he is running a Bar & Restaurant in Mapusa and that he was asked by the Police to accompany them and that they had received information that a person residing in hotel Suhas was having a consignment of charas. P.S.I. Narvekar has reduced the information to writing and a copy thereof had been sent to Dy.S.P. Gawas and asked his willingness to act as panch witness. P.W.3 has given the details regarding the manner in which the search was conducted in room No.F-7 of hotel Suhas. He has stated that after the Police knocked the door of the room, the person inside the room opened the latch from inside and opened the door. P.W.3 has given the description of the person and of the clothes he was wearing and the manner in which the search was conducted. He has further given the details regarding the manner in which the drugs were found on the person of the accused and in his bag. He stated that the bag from which the charas was found also contained a prescription in the name of the accused. He has further stated the manner in which the contraband was put in an envelope and sealed in their presence. He has further given the details of the room from which the said contraband was seized. He has further stated that he acted as a panch in the attachment panchanama of the hotel register after the panchanama of search was concluded. He has stated that the name of the accused was shown at serial no.7017 of the Hotel register. Though this witness has been cross-examined at length, his testimony has not been shaken in the cross-examination. The evidence of the seizure of the contraband charas from the person of the accused and also from the bag as that of the accused has been established. Further it has been established that the bag from which charas was found also contained a prescription in the name of the accused which was addressed in favour of the accused establishing that the bag also belonged to the accused. Prosecution has thereafter examined P.W.4 Suhas Naik who is the owner of the hotel. P.W.4 has stated that one Rajesh Thakur was on reception duty on 27-08-2001 and that he has made the entires in the reception register on 27-08-2001. It was further corroborated that on 28-08-2001 the police officers had raided room No.F-7 and that the accused was apprehended and panchanama was made in the presence of the panchas. That the hotel register was seized and put in an envelope and sealed and signed by the panchas and the Police Sub-Inspector Narvekar. This witness also has not been seriously cross-examined by the prosecution. Only question put in cross-examination was whether the register indicated that two persons were residing in room No.F-7. The prosecution has thereafter examined P.W.5 Sudesh Narvekar who has given the chronology of the events as they occurred from 27-08-2001. He has stated the manner in which information was received and further steps taken by him which culminated in the arrest of the accused and seizure of the contraband in the room No.F-7 in hotel Suhas. He has stated various steps taken by him in the investigation of the entire case. This witness has been examined at length and a suggestion was put to him that though there are two persons staying in the said room, it is evident from the reception register no steps have been taken in the investigation in respect of the other occupant of the room. In cross-examination P.W.5 has admitted that the accused had informed him that he had come along with one person by name Kadir Hussein. P.W.5 in cross-examination has stated that he interrogated both the owner and the receptionist to find out about the second person in the room and that he had also interrogated Rajesh Thakur who had made the entry of two persons in the register. He further stated that he had recorded the name of Rajesh Thakur and he was to be examined as a witness in the case. However, the said Rajesh Thakur could not be examined as his whereabouts were not known as he had left Goa and returned to his native place at Delhi. P.W.5 has further admitted that the said Kadir was arrested in a drug case and he had not made enquiries to find out the details regarding the arrest of Kadir. He further admitted that the said Kadir was arrested by the Anjuna Police Station, but was kept in Mapusa P.S. Lock-up. P.W.5 however has not admitted in cross-examination that the said Kadir was occupant of the room along with the accused. This witness was again re-examined by the prosecution and in re-examination he has stated that he was not in a position to secure the presence of Rajesh Thakur. He has stated what efforts were taken by him to trace this witness and that inspite of best efforts the said Rajesh Thakur could not be traced.

9. From the evidence of P.W.5, it can be seen that he has corroborated the statements made by the panch witness regarding the seizure of the contraband and the fact of seizure of the drugs from the person of the accused and the rexin bag which was found in the room. From the evidence of P.W.5 it can be seen that the various provisions of the N.D.P.S. Act have been complied to the hilt by the Investigating Officer and there has been no lacuna in the compliance of procedure and provisions of Sections 42 and 57 of N.D.P.S. Act in respect of the sealing and entrustment and safe custody of the samples before they were sent to the Chemical Analyser. It is no doubt true that the defence had tried to establish that proper steps have not been taken by the Investigating Officer to locate the second person who was in the room. It has also been suggested that a second person in the room was Kadir Hussein and that though the Investigating Officer knew that he was arrested by the Anjuna Police Station, no efforts were made to interrogate this witness so as to find out whether he also was party to the said offence committed by the accused. P.W.5 has admitted in his evidence that the accused had informed him that the other occupant of the room was Kadir Hussein. It is no doubt true that it was the duty of the Investigating Officer after having known that there was one other occupant in the hotel room to make a thorough investigation to find out about the involvement of the other person and the extent of his involvement in the said offence. It is well settled principle in criminal law that the duty of the Investigating Officer is not merely to collect evidence for the purpose of obtaining a conviction against the person who is set up as an accused, but is primarily the responsibility of the Investigating Officer to get to the bottom of the crime which has been committed and to book the person who is the author of the crime and for that purpose to make utmost effort to find out the truth in the matter. From the cross-examination of this witness though he has stated he had information which was given by the accused that Kadir Hussein was said to be the second occupant in the room. P.W.5 has given explanation that he had not carried out investigation in respect of the other occupant. However, it can be seen that he had not interrogated Kadir Hussein though he was arrested by the Anjuna Police Station and was kept in the lock-up at Mapusa. Yet in my view, there may have been some lapse on the part of the Investigating Officer in investigating and finding out the involvement of Kadir Hussein in the commission of the said offence, yet that by itself would not absolve the complicity of the accused from the seizure of the charas from his person and from the bag which was found in the room particularly when the prescription which was addressed in his name by the Doctor, was found in the said rexin bag. In my view the submission therefore made by the learned counsel on behalf of the accused that due to faulty investigation there was a failure on the part of the prosecution of proving exclusive possession cannot be accepted. Reliance has been placed by the learned counsel on behalf of the appellant in support of the said submission in the case of Jamuna Chaudhary (supra). In this case 31 accused persons were sent up for trial before the Additional Sessions Judge of Chapra on charges under Sections 147, 148, 323, 325, 326, 302/34, 302/149, Indian Penal Code. In the context of this case, the Supreme Court has observed in para 11 as follows:-

"11. The duty of the Investigating Officer is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth."

10. The Supreme Court in the said case had observed that the trial Court had failed to examine the manner in which the dispute had originated and the occurrence developed in various stages which had finally resulted in injuries being caused to number of persons. In my view the facts and circumstances of the case before the Supreme Court and the present case were entirely different, yet the principle laid down by the Supreme Court and observations made in para 11 obviously has to be taken into consideration by the Investigating Officer while investigating the said offence. In this case, as observed earlier, except for the slight lapse on the part of the Investigating Officer in not examining Kadir Hussein though he knew that he was in police lock-up in Mapusa in respect of an offence under N.D.P.S. Act, the rest of the investigation has been carried out properly and there is no other lacuna in the investigation. Therefore the submission of prejudice being caused to the accused as a result of faulty investigation cannot be accepted.

11. Prosecution thereafter has examined P.W.6 Arvind Gawas who had given intimation to the Investigating Officer regarding information received. This evidence has also not been challenged. P.W.7 is A.S.I. Mayekar with whom the muddemal was kept in safe custody. This evidence also has not been challenged by the defence. P.W.8 is the Police Inspector Tavares who was in charge of the Police Station. His evidence also has not been seriously challenged by the defence. P.W.9 is Police Constable Khorate. He has been examined for the purpose of stating the steps which the Investigating Officer had taken in trying to locate Rajesh Thakur in Delhi. From all this evidence, which has been brought by the prosecution, prosecution has proved beyond reasonable doubt that the contraband of charas was found to be on the person of the accused/appellant herein to the extent of 40 gms. And the remaining quantity was found in the rexin bag which was found in the room which was occupied by the accused. The medical certificate which was in the name of the accused clearly establishes that the said bag belonged to the accused. Therefore conscious possession of charas by the accused is proved beyond reasonable doubt by the prosecution and this presumption of conscious possession having been proved, the further presumption which is raised under S.54 and 34 of N.D.P.S. Act therefore in my view has not been rebutted by the accused.

12. The learned counsel appearing on behalf of the appellant has relied on a number of judgments of this Court and other High Courts and the Supreme Court of India on this point. The learned counsel has relied on the judgment of this Court in Mr. Milan Sacanski [1997 ALL MR (Cri) 496] (supra). In this case the raiding party of the Anti-Narcotic Cell had made a random check in Calangute area on 05-01-1995 and information was received that the accused was carrying narcotic drugs and staying in a room. The raiding party therefore went to the place where the accused was staying, entering the room and took search of the accused and the house of the appellant in the said case and the raiding party found two bundles, one containing 365 gms. And the other containing 640 gms. of charas. It was contended by the defence in the said case that the house in which the contraband was found was a public place let out to tourists and the appellant in the said case was also a tourist and though the recovery of the contraband was made in the room, did not prove his exclusive possession. This Court came to the conclusion that the prosecution had not proved that the adjoining room in which the contraband was found was in the exclusive possession of the appellant and therefore held that exclusive possession was not proved by the prosecution in respect of the charas which was found in the adjoining room. In my view, the ratio in the said case would not be applicable to the facts of the present case. In the present case, the recovery was made in the room which was let out to the accused. The reception register which was duly proved by the prosecution indicated that the entry was made by the accused in the register in his own handwriting and the accused was found alone in the room when the raiding party went there and there was no other room adjoining the said room. The ratio of the said judgment therefore in my view is not applicable to the facts of the present case.

13. Learned counsel appearing on behalf of the appellant further relied on the Judgment of the Supreme Court in the case of State of Punjab Vs. Balkar Singh (supra). In this case the patrol party was patrolling near village Lohgarh and they noticed that the custody of the bags were kept in the field and the respondents were sitting on them. The Investigation Officer suspected that the bags must be containing poppy husk and therefore he conducted search of the said bags and found that they were containing poppy husk. The Supreme Court in the said case observed that the accused were sitting on the said bags and the presence of the respondents at the place from where the bags of poppy husk were recovered was taken as possession of the contraband by the police. The Supreme Court held that the police should have conducted further investigation that the accused were in possession of those bags. The ratio of the said Judgment also will not be applicable to the facts of the present case as the rexin bag and the contents therein clearly indicated that it belonged to the accused and in exclusive possession in the room where no one was present at the time he was apprehended.

14. The learned counsel thereafter relied on the judgment of the Bombay High Court in the case of Antony Sauri Pilley Vs. State of Maharashtra (1993 Cri.L.J. 1502). In this case the raiding party went to the hut of the accused which was in a slum area opposite the S.T. Stand at Vithalwadi. The raiding party searched the hut and found a gunny bag under a cot. In this case it was held by this Court that the mere presence of the accused in the premises was not good enough as there were other occupants whose statements were recorded though they were not examined and if these two persons had been examined, it would have been established that the accused in the said case was the only resident of the hut and that in absence of this evidence, it could not be said that the accused was the only resident of this hut. The ratio of this case also will not be attracted to the facts of the present case. The learned counsel for the appellant relied upon the case of Mazzanti Esposto Gian Carlo (supra). In this case also charas was recovered from a room which was occupied by more than one person. In the said case apart from non-compliance of Sections 41 and 50 of the said Act, the Court came to the conclusion that the prosecution had failed to establish the exclusive possession of the appellant in the said case with regard to the search premises where he was purportedly residing and where admittedly the room was occupied by other inmates and were living along with them. The ratio of this case also will not be applicable to the facts of the present case. Learned Counsel thereafter relied on a judgment of the Allahabad High Court in the case of Munna Vs. The State and another reported in 2004 Drugs Cases (Narcotics) 41. In this case the contraband was recovered from a jeep about which the accused had no knowledge and therefore it was held that the conscious possession was not proved. The ratio of this case will not be applicable to the facts of the present case. The learned counsel appearing for the appellant relied on the case of Ismailkhan Aiyubkhan Pathan Vs. State of Gujarat reported in 2002 Drugs Cases 56. In this case the appellant received information that illicit trafficking of drugs was carried out from the first floor of a building which was in possession of one Nasir. After the place was raided they found that there was a gunny bag kept in the corner of the room and all the six accused were present in the said room. A test was conducted on the spot and substance was found to be charas. The Supreme Court observed that merely because a person was present in the room in which the drug was found, it could not be presumed to be in possession of that person. The Supreme Court observed that out of six persons who were found in the room some of them may have been casually present in the room or at least one of them would have been unaware of what was going on inside the room and under the circumstances held that conscious possession had not been proved. The facts in the present case are in my view entirely different.

15. The learned counsel on behalf of the appellant further relied on the judgment of the Supreme Court in the case of Pabitar Singh Vs. The State of Bihar reported in A.I.R. 1972 S.C. 1899. In this case a gun was recovered from a room of a quarter which was in joint possession of two persons and one of them was not present at the time of raid. It was held that mere presence of the other in that room was not sufficient to make him guilty of the offence unless the Court could come to the conclusion that there was reason to believe that he was aware of the existence of the gun in that room. In my view the ratio of the said judgment also does not apply to the facts of the present case. Though the reception register showed that there were two occupants in the said room but at the time when the raid was conducted, the appellant was present in the room, contraband was found in his person. Similar contraband was found in the rexin bag. The rexin bag contained other articles which belonged to the accused. Thus the conscious possession in my view has been proved in the facts of the present case. Therefore the ratio of the said judgment will not be applicable to the present case.

16. The learned P.P. has relied on the judgment in the case of Madan Lal and another Vs. State of Himachal Pradesh reported in 2003 Cri.L.J. 3868 : [2003 ALL MR (Cri) 2412 (S.C.)] and in the case of Megh Singh Vs. State of Punjab reported in 2003 Cri.L.J. 4329, where it has considered the meaning of the expression 'possession' and the word 'conscious' and has observed that once possession has been established the person who claims that it was not a conscious possession has to establish it. The Supreme Court in para 13 has observed as under :-

"Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of S.54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and Anr. Vs. State of Himachal Pradesh."

17. Similarly the Supreme Court in the case of Madan Lal Vs. State of Himachal Pradesh [2003 ALL MR (Cri) 2412 (S.C.)] (supra) has held that once the possession is established the person who claims it is not conscious possession has to establish it, because how he came to be in possession is within his special knowledge. The Supreme Court further observed that Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. In my view the ratio of these two judgments are clearly applicable to the facts of the present case. The learned Public Prosecutor further relied on two other judgments in support of the submission that no prejudice has been caused to the accused. He relied on the case of Kammari Brahmaiah and others Vs. Public Prosecutor, High Court of A. P. reported in 1999 Cri.L.J. 1134 : [1999 ALL MR (Cri) 555 (S.C.)] and on the case of State rep. by Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu Vs. V. Jayapaul reported in A.I.R. 2004 S.C. 2684 : [2004 ALL MR (Cri) 1461 (S.C.)]. In my view the ratio of these judgments will not apply to the facts of the present case.

18. In view of the above discussion, the submissions made by the learned counsel on behalf of the appellant cannot be accepted. The finding recorded by the trial Court therefore will have to be confirmed.

19. The appeal filed by the appellant is dismissed.

Appeal dismissed.