SUPREME COURT OF INDIA

Before:- K.T. Thomas and A.P. Mishra, JJ.

Criminal Appeal Nos. 1704 of 1996 with Nos. 808 of 1997 and 945 of 1999. D/d. 14.9.1999.

Ismailkhan Aiyubkhan Pathan - Appellant

Versus

State of Gujarat - Respondent

Narcotic Drugs and Pschotropic Substances Act, 1985, Sections 20(b) and 29 Evidence Act, 1872, Sections 114 and 103 - Conviction of accused under 1985 Act - Gunny bag containing narcotic substance "charas" found in a room where accused was present - No evidence that anybody had seen that anyone of the accused was dealing with narcotic drugs - No evidence that accused persons who were found sitting in the room, had possession of the room - No statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of narcotic substance - Conviction, therefore, held not sustainable.

[Paras 4 to 10]

ORDER

K.T. Thomas, J. - There were 6 accused before the Additional Sessions Court at Ahmedabad to face the trial for the offence under Section 20(b) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). The Sessions Judge convicted 5 out of them and acquitted the 6th man ? Indrajitsing Shivpalsing. The remaining 5 were convicted under the aforesaid sections and each of them was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000. All the convicted persons preferred an appeal before the High Court of Gujarat. A Division Bench of the High Court confirmed the conviction and sentence and dismissed their appeal. It appears that 2nd accused Saeed Suleman Shah has accepted the verdict of the High Court and he did not bother to come to this Court but the remaining convicted persons filed these appeals by special leave, as per separate special leave petitions.

2. The summary of the prosecution case is the following:

PW 7 Inspector of Police of Crime Branch in the Vigilance Squad got some sleuth information on 6-5-1991 that illicit trafficking was going on in the room on the 1st floor of a building which was in the possession of one Nasir. He also got information that the said Nasir had kept a stock of "charas" and was dealing with the same through his servants. On the strength of the aforesaid information PW 7 along with other police personnel reached the said building for the purpose of catching the culprits. He called out the name of Nasir but none came out holding that name. However, when he entered the room he found all the 6 accused persons therein. He found a gunny bag being kept in the corner of the room. It was opened and the substance therein was tested with the help of Shri B.N. Dave, who came by that way (that person is said to be an expert attached to the Forensic Science Laboratory). Mr Dave conducted an "on-the-spot scientific test" and proclaimed that the substance was "charas".

3. It is unnecessary for us to go into the other evidence because we will assume that whatever PW 7 has said is correct and the rest of the evidence for the prosecution had only supported the version of PW 7. But the question is how the appellants can be fastened with the liability for possession of the contraband article wrapped in the gunny bag which was kept in the room.

4. There is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is also no evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession of Nasir. But that Nasir is not an accused in this case. He was not examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in question.

5. Thus, we are left with only a modicum of evidence as against the accused, which only shows that they were present in the room which was in the possession of one Nasir and that the said room contained a gunny bag with the narcotic substance "charas".

6. We are unable to sustain the conviction of the offence under Section 20(b) read with Section 29 of the Act as for any one of the appellants on the strength of the aforesaid evidence. It is too insufficient to bring home the guilt of the appellants.

7. It appears that the High Court put the burden on the appellants to explain as to how they were present in the room. This is what the High Court has observed:

"In the present case, at odd hours of the night when the premises was raided, all the accused were present and have not explained as to how and why and since when they were present in the premises. Therefore, in our opinion, only inference can be drawn from their unexplained presence in the premises, they being not tenants of the premises is that they were in possession of the premises at the relevant time and the substance found from that premises is possessed by them."

8. There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under Section 114 of the Evidence Act merely because these persons were present when PW 7 went there.

9. Either those persons would 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. We are not told who among the many accused that one possible innocent person could have been.

10. In the light of the aforesaid imponderables it is difficult to sustain the conviction as against any one of the appellants. We, therefore, allow these appeals and set aside the conviction and sentence passed on these appellants. We acquit them and direct them to be set free unless they are required in any other case.

Appeal allowed.