Bangalore District Court
I.O/Ncb/Bzu/Blr vs Mohammed Naeem on 4 July, 2025
THE COURT OF THE XXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
: P R E S E N T:
SMT.LATHA,
XXXIII ACC & SJ & SPL. JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 4th DAY OF JULY 2025
SPL.C.C. NO.500/2021
COMPLAINANT : IO., NCB., BZU,
Bangalore.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Sri. Mohammad Naeem,
S/o.Abdul Nizar,
R/at.No.6-T-24/7, Zahir Mension,
6th Block, Krishnapura,
Surathkal, Mangaluru,
Karnataka-575104
(Rep. by Sri DRS/MR., Adv.)
1. Date of Commission of offence: 8.7.2020
2. Date of report of offence: 8.7.2020
3. Arrest of the accused : Produced through Body
warrant on 9.9.2020
through VC
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4. Date of release of accused on In judicial custody
bail:
5. Period undergone in custody: In judicial custody
6. Date of commencing of 20.12.2022
recording Evidence :
7. Date of closing of Evidence : 23.02.2024
8. Name of the complainant: Sri Pradeep Kumar,
Inspector of SSB
9. Offence complained of : U/s.22(C) , 23(C) & 27
of NDPS Act
10. Opinion of the Judge :
Charges not proved
11. Order of sentence : Acquitted
::JUDGMENT:
:
The Intelligence Officer, NCB., Bengaluru filed
complaint filed complaint against the accused in
NCB.F.No.48/1/7/2020/BZU for the offences punishable
2. The case of the prosecution in nutshell is as under:-
The Intelligence Officer., NCB., Bengaluru is the
complainant here. On 8.7.2020 the complainant received
information that a parcel received at Chamarajpet Post
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office contain narcotic drugs. They went to the said post
office and seized 90 grams of Amphetamine booked by one
Mariya Gracia Nicotra to the person by name Mohammed
Nayeem, Zaheer Mansion, VI block, Krishnapura, Suratkal,
Mangaluru, Dakshina Kannada district and drawn
mahazar. They traced the address on the parcel on
10.7.2020 and served summons on the accused. But he did
not appear. Again summons was issued on 20.7.2020 to
appear for the investigation on 24.7.2020. He did not
appear. Subsequently, he was produced through video
conferencing from Mangalore prison on 9.9.2020 under
body warrant. The complainant IO., has sought NCB
custody of the accused for 5 days. After apprehending the
accused, his statement came to be recorded. On the basis
of his statement incriminating substances were seized. He
was produced before the court and was remanded to judicial
custody. The sample which was sent to Central Revenues
Control Laboratory, New Delhi gave positive result for
MDMA (Methylenedioxymethamphetamine Hydrochloride).
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The IO., NCB., filed a complaint before this court in NCB
No.48/1/07/2020/BZU alleging commission of offences
punishable U/Sec.8(c) R/w. Sec.22(c), 23(c) & 27 of N.D.P.S.
Act.
3. On presentation of complaint, accused was secured
from judicial custody. Copies of prosecution papers were
furnished to him. The learned Predecessor-in-office on
perusing the contents of the complaint and the annexed
documents, took cognizance of the offences punishable
under sections 22(c), 23(c) & 27 of NDPS Act, 1985. The
copy of the complaint and annexed documents were
furnished to the learned counsel appearing for the accused
as provided under Sec. 207 of the Criminal Procedure Code,
1973. Since the offences levelled against the accused are
cognizable in nature, this Court’s predecessor-in-office
heard the learned counsel for the accused and Special
Prosecutor on the question of Charges. She found that, the
materials placed on record by the prosecution make out a
case for trial against the accused. Thereafter, the Learned
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Predecessor-in-office framed Charges against the accused
for the offences punishable under sections 22(c), 23(c) & 27
of the NDPS Act, 1985 on 8.12.2021. Then the Charges
read-over, and explained to the accused in the language
known to him. He, after understood the contents of the
Charges, pleaded not guilty and claimed to be tried. The
learned predecessor in office recorded the plea and then
posted the case for recording the evidence for the
prosecution.
4. The prosecution to prove the Charges levelled
against the accused six witnesses examined as P.W.1 to
P.W.6 and got marked 20 documents as Exs.P1 to P.20 and
the material objects were marked as M.Os.1 to 5. After
closure of prosecution evidence, accused was examined
U/Sec.313 of Cr.P.C., by putting the incriminating
circumstances available against him. However, he denied
the incriminating statements made against him and did not
offer defence evidence.
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5. Heard the arguments of Spl.P.P., and learned
counsel for the accused. Perused the Written arguments
submitted by the learned counsel for accused and the
Citations referred to by both the parties.
6. Having heard the learned Special Public
Prosecutor, the learned Senior Counsel for the accused and
also the learned counsel for the accused No.1 and on
perusal of the above rulings, the following points that arise
for consideration is as follows :-
Point No. 1 : Whether the prosecution has
proved beyond all reasonable
doubt that on 8.7.2020 at about
4.00 p.m., accused illegally
procured Narcotic Drugs and
Psychotropic substance from a
foreign Nation Italia via Indian
Post parcel bearing
No.RC101152589IT in the name
of the accused, thus violated the
provision of Sec. 8(c) and
committed the offences
punishable under Secs.22(c),
23(c) & 27 of NDPS Act ?
Point No.2: What Order ?
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7 Spl.C.C.500/2021
7. My findings on the above points are as under:
Point No.1: In the Negative
Point No.2: As per the final order for the
following:
::REASONS::
8. POINT No.1 :- The prosecution in order to
substantiate his case got the CW.1/complainant examined
as PW.1. PW.1 Pradeep Kumar was the then Intelligence
Officer, NCB., Bengaluru Zonal Unit. According to him on
8.7.2020 at around 4.00 p.m., he had received an
information that, a parcel bearing No. RC101152589IT is
received at Foreign Post Office, Bengaluru suspected to
contain Amphetamine psychotropic substance. The parcel is
addressed to Mohammed Nayeem resident of 6T, 24/7,
Jaheer Mansion, 6th Block, Krishnapura, Suratkal,
Mangaluru. He had noted the said information in NCB
Form-1 and submitted before Superintendent of NCB. The
information report is marked as Ex.P.1 and signature as
Ex.P.1(a). He had submitted information to CW.2 at 4.20
8pm., on the same day. The copy of the information was also
given to CW.2. He had made a shara on Ex.P.1 directing
him to constitute a team and to take necessary action.
Immediately, he had collected all the seizing materials like
DD kit, portable printer, Laptop, he had collected NCB Seal
No.3 at 4.37 p.m., he had left the office at 4.40 p.m., along
with his staff to the Foreign Post Office and reached there at
5.30 p.m., in his office vehicle. After reaching the Foreign
Post Office, he introduced himself to Post Master of Foreign
Post Office and shared the information with him about
suspected parcel No.RC101152589IT. He had requested the
Post Office staffs i.e., CW.6 and 7 to be independent
witnesses during the search and seizure proceedings. He
had shared the information with them and gave written
notice to them. The said Notices are marked as Ex.P.2 &
P3. He requested the Post Master to produce the parcel
bearing No. RC101152589IT, he has produced the same
before him. On enquiry, it was found that, the said parcel
was booked in the name of Mohammed Nayeem resident of
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9 Spl.C.C.500/2021
6T, 24/7, Jaheer Mansion, 6th Block, Krishnapura,
Suratkal, Mangaluru. It was sent by one Mariagrazia Nicotra
via Immacolta 35, 95123 Catania Ct, Italia. After that, he
had opened the parcel and found two number of plastic CD
covers, on opening the said CD plastic cover one by one,
found silver coloured sealed polythene pouches were found,
when the said silver pouches were cut opened, off-white
coloured crystal powder in both the pouches. He had tested
the said powder by taking small pinches from both the
covers separately through DD kit, which gave positive
answer for Amphetamine. Both the powders were looking
similar, he had homogeneously mixed and put into a single
transparent polythene cover and weighed it, the weight
came around 90 grams. He had taken 5 grams of two
samples from the bulk, he had put it into a separate
polythene pouch, heat sealed it and put into brown coloured
envelope and it was marked as S1 and S2 and sealed with
NCB seal No.3. The remaining 80 grams of contraband was
put it into a separate polythene pouch, heat sealed it and
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put into brown coloured envelope and it was marked as P1
and sealed with NCB seal No.3. The packing material,
postal cover are packed & sealed and numbered as P2. Test
memo prepared in triplicate on the spot and he along with
independent witnesses affixed signatures on the test memo.
A detail panchanama drawn in the spot as per Ex.P.4.
9. This witness has also been subjected for cross
examination by learned counsel for the accused. During the
course of cross examination the learned counsel elicited
from him that he know the meaning of control delivery
under NDPS Act and the present case is not a case of
control delivery and also the learned counsel questioned the
PW.1 regarding the procedure followed by him while
following the procedure of seizure of the questioned article.
10. CW.2 Sumit Arya, the then Superintendent, NCB.,
BZU., has been examined as PW.2. According to this
witness on 8.7.2020 CW.1 Pradeep Kumar had given
information regarding the receipt of parcel containing
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concealed Amphetamine which is addressed to a person by
name Mohammed Nayeem (accused) who is the resident of
Mangalore, that in view of the information report received by
him he discussed the said information with the Zonal
Director, Bangalore and directed CW.1 to proceed with the
matter by constituting a team. Further he also deposed that
on 9.7.2000 he issued search authorization to CW.3 to
conduct the search of the house of accused in Mangalore,
that the said search authorization has been marked as
Ex.P11, that after conducting search of the house of the
accused at Mangalore, CW.1 had submitted seizure report
before him and the said seizure report is at Ex.P8, that on
14.9.2020 arrest report was submitted by PW.3 and the said
report is at Ex.P12, that the seized article had been
forwarded to CRCL., New Delhi for chemical analysis, the
forwarding letter is marked as Ex.P13.
During the course of cross examination this witness
very strangely deposed that the parcel in question is booked
by a foreigner and the learned counsel for accused cross
12
examined him in length about the procedure followed by
him.
11. CW.3 Mustkim Ahamed the then Intelligence
Officer, NCB., Bangalore has been examined as PW.3.
According to this witness he had obtained search
authorization from Cw.2 for searching the house of the
accused and on 10.7.2020 he went to Mangalore and
searched the house of accused, that at the time of search in
the house of accused he was not there and the PW.3 could
not get any incriminating articles in his house. He has also
deposed that at that time the accused was in judicial
custody in a case registered against him under the
provisions of POCSO Act.
Further, he deposed that on 13.9.2020 he had written
letter to the Post Office, Surathkal to ascertain the details of
the parcel received by the accused if any, that on
27.11.2020 he received reply from the Sr. Superintendent of
Post Office, Mangalore that the accused had received a
parcel bearing No.RC0949817861T on 17.4.2020 and
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according to the information gathered from the
Superintendent of Post Office the said parcel had also been
received from Italy. That he has also collected documents
relating to Cr.No.203/2016, in Cr.No.119/2019 of Surathkal
police station and in Cr.No.16/2020 of Dakshina Kannada
Women police station.
This witness has also been cross examined by learned
counsel for accused in length. It has been elicited from him
that though Sr. Superintendent of Post Office, Mangalore
had replied to his letter on 27.11.2020 he had not provided
any document relating to the information given by the Sr.
Superintendent of Post Office. It has also been elicited that
in the year 2020 in the month of June and July there was
lock down, that in spite of lock down he had visited the
house of the accused.
12. The prosecution has also examined CW.4
Kamelesh Kumar as PW.4. Kamelesh Kumar is also an
intelligence officer he is working in NCB., Bangalore. But
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this witness has not investigated the matter as he got
transferred he handed over the investigation to CW.3.
13. CW.5 Dr.Poornima Mishra has been as PW.5. this
witness is the chemical examiner working in Mumbai and
she deposed about the analysis of MDMA and also about the
filing of report Ex.P9. According to her report the
questioned article had contained Methylenedioxymeth-
amphetamine.
14. CW.7 K.A.Pehelomina Saled who is the post
master of Bellundur post Office has been examined as PW.6.
This witness deposed about the parcel received in their post
office and seizure of the parcel as it contained suspected
article. She has also identified Mos.1 to 4 which were said
to be seized by the Intelligence officer. This witness has also
been cross examined by learned counsel for accused.
15. The learned Special Public Prosecutor has relied
on a number of decisions reported in :-
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15 Spl.C.C.500/2021
1. (2015) 6 SCC 222 in the case of Mohan Lal
Vs., State of Rajasthan
2. (2015) 6 SCC 674 in the case of Kulwinder
Singh and anr., Vs., State of Punjab
16. The learned counsel for the accused has relied on
a number of decisions:-
1. 2014 SCC online ALL 16096 Sabha
Shankar @ Lalta Prasad Dubey Vs., The
State of UP
2. 1973 SCC online SC 286 Kali Ram Vs.,
The State of HP
3. Crl.Petition No.6497/2024 dated
12.7.2024 in the case of Mohammed
Nayeem and Anr., Vs., State of Karnataka
4. Crl. Petition No.5906/2024 dated
5.7.2024 in the case of Nahim Vs., State of
Karnataka
5. 1992 Crl.L.J.3206 in the case of Soorajmal
Vs., The State of Madhya Pradesh
6. Crl.Appeal No.1973/2014 dated 16.1.2025
in the case of Rakesh Kumar Raghuvanshi
Vs., State of MP
7. (2002) 7 SCC 419 in the case of Avtar
Singh and others Vs., State of Punjab
8. Crl.Petition No.6863/2023 of Hon’ble
High Court of Karnataka in the case of
Junaid Hussain Haveri Vs., Union of India
9. (2021) 4 SCC 1 in the case of Tofan Singh
Vs., State of Tamil Nadu
16
17. Before touching the merits of the case, this Court
shall verify whether the prosecution complied the statutory
provisions as mandated under the NDPS Act which are to be
followed during the course of investigation. The PW.1 in his
examination in chief specifically deposed as on 8.7.2020 at
around 4.00 pm., he had received the information and as
soon as he received the information he noted the
information in NCB Form No.1 and submitted before the
Superintendent of NCB. The said report also got marked as
Ex.P1. Therefore, it is the considered opinion of this Court
that the IO., has complied the provisions of Sec.42 of NDPS
Act.
18. In so far as compliance of mandatory provision of
Sec.50 of NDPS Act is concerned, the legal position has been
laid down by the Hon’ble Supreme Court in the decision
reported in 1999 AIR (SC) 2378 in the case of State Vs.,
Baldev Singh that the compliance of the provisions of Sec.50
of NDPS Act is mandatory and it is also held in the said
decision that compliance of the said provision is not
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17 Spl.C.C.500/2021
necessary where recovery was effected without prior
information and where it was the case of a chance recovery.
In Para-11 of the said decision it is held as under:-
11. On its plain reading, Section 50 would come
into play only in the case of a search of a person as
distinguished from search of any premises etc.
However, if the empowered officer, without any prior
information as contemplated by Section 42 of the
Act makes a search or causes arrest of person
during the normal course of investigation into an
offence or suspected offence and on completion of
that search, a contraband under the Narcotic Drugs
And Psychotropic Substances Act is also recovered,
the requirements of Section 50 of the Act are not
attracted.
In so far as this matter is concerned, there was no need to
the empowered officer to conduct personal search of the
accused.
19. According to the evidence of PW.1 he had received
information of receipt of parcel contained suspected
18
contraband at Foreign Post office, Bangalore and after
seizure of the said parcel in continuation of the
investigation, PW.3 intelligence officer, NCB., Bangalore
after obtaining authorisation for search from Cw.2 had
conducted search of the house of the accused at
Krishnapura, Surathkal, Mangalore and PW.3 had also
deposed in his examination in chief that he came to know
that the accused was in judicial custody relating to a
POCSO case and he obtained PC custody from the Court
and after obtaining him under body warrant from the
concerned Court he interrogated the accused and recorded
the voluntary statement of the accused, that in the
voluntary statement the accused had stated that he did not
booked the parcel. Accordingly, in this matter there was no
need for personal search of the accused.
20. However, as could be seen from the evidence of
prosecution witnesses especially the evidence of PW.1, the
PW.1 has followed the procedure that has to be adopted at
the time of search and recovery of the contraband. Though
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19 Spl.C.C.500/2021
the learned counsel for accused cross examined PW.1
nothing has been elicited to show that PW.1 has failed to
comply the provision of law required to be followed.
21. The PW.1 followed the required procedure at the
time of seizure of the contraband from the post office PW.1
in paragraphs 2 to 5 deposed as under :-
2. On 8.7.2020 at around 4.00 p.m., I have received an
information that, a parcel bearing No. RC101152589IT is
received at Foreign Post Office, Bengaluru suspected to
contain Amphetamine psychotropic substance. The parcel
is addressed to Mohammed Nayeem resident of 6T, 24/7,
Jaheer Mansion, 6th Block, Krishnapura, Suratkal,
Mangaluru. I have noted the said information in NCB
Form-1 and submitted before Superintendent of NCB. The
information report is marked as Ex.P.1 and signature as
Ex.P.1(a). I have submitted information to CW.2 at 4.20
p.m. on the same day. The copy of the information was
also given to CW.2. He has made a shara on Ex.P.1
directing me to constitute a team and to take necessary
action.
3. Immediately, I have collected all the seizing materials
like DD kit, portable printer, Laptop, I have collected NCB
Seal No.3 at 4.37 p.m., I have left the office at 4.40 p.m.,
along with my staff to the Foreign Post Office and reached
there 5.30 p.m., in my office vehicle. After reaching the
Foreign Post Office, I introduced myself to Post Master of
Foreign Post Office and shared the information with him
about suspected parcel No. RC101152589IT. I have
requested to Post Office staffs ie., CW.6 and 7 to be a
independent witnesses during the search and seizure
proceedings. I have shared the information with them. I
20have given written notice to them. Notices are marked as
Ex.P.2 & P3. I have told the Post Master to produce the
parcel bearing No. referred above before me, he has
produced the same before me.
4. On enquiry, it was found that, the said parcel was
booked in the name of Mohammed Nayeem resident of 6T,
24/7, Jaheer Mansion, 6th Block, Krishnapura, Suratkal,
Mangaluru. It was sent by one Mariagrazia Nicotra via
Immacolta 35, 95123 Catania Ct, Italia. After that, I have
opened the parcel and found two number of plastic CD
covers, on opening the said CD plastic cover one by one,
found silver coloured sealed polythene pouches were
found, when the said silver pouches were cut opened, off-
white coloured crystal powder in both the pouches. I have
tested the said powder by taking small pinches from both
the covers separately through DD kit, which gave positive
answer for Amphetamine. Both the powders are looking
similar, I have homogeneously mixed and put into a single
transparent polythene cover and weighed it, the weight
came around 90 grams. I have taken 5 grams of two
samples from the bulk, I have put it into a separate
polythene pouch, heat sealed it and put into brown
coloured envelope and it was marked as S1 and S2 and
sealed with NCB seal No.3. The remaining 80 grams of
contraband was put it into a separate polythene pouch,
heat sealed it and put into brown coloured envelope and it
was marked as P1 and sealed with NCB seal No.3. The
packing material, postal cover are packed & sealed and
numbered as P2.
5. Test memo prepared in triplicate on the spot and I along
independent witnesses affixed signatures on the test
memo. A detail panchanama drawn in the spot.
Panchanama is marked as Ex.P.4.
22. On the other hand, the learned counsel for the
accused elicited from PW.1 that he had not issued notice
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21 Spl.C.C.500/2021
U/s.67 of NDPS Act to mahazar witnesses and Post Master
and also recorded the statement of CW.6 & Cw.7, that there
was lock down due to Covid 19 and there was partial
movement of public.
23. This Court has gone through Ex.P2 and P3 they
are the notices issued to the witnesses Cws.6 and 7. Prior to
seizing the suspected parcel in view of that the IO., followed
per-seizure and post seizure procedures as contemplated
under law.
24. Further, on merits of the case, the learned Spl.
P.P., voluntarily argued that the parcel is addressed to the
address of the accused, that though he was not in physical
possession as it was addressed in his name, he alone
ordered the said contraband with the knowledge that he is
ordering for contraband and he is liable for the prosecution
and he has committed the offence under the Act.
25. The learned Spl.P.P., while arguing on conscious
possession relied on the decision reported in (2015) SCC
22
222 in the case of Mohan Lal Vs., State of Rajasthan
wherein it is observed as under:-
A. Narcotic Drugs and Psychotropic Substances Act, 1985—
Ss.13 to 22, 25 and 35– Possession of contraband–
Contraband hidden away in secret place by accused–
Absence of physical control over the contraband, but
accused exercising requisite control over contraband to give
rise to culpable mental state–“Possession, held, is a flexible
concept, and its meaning depends upon the contextual
purpose and objective of statute concerned and an
appropriate meaning has to be assigned to the word to
effectuate the statutory object–Ordinarily, elements of
possession are physical control and animus to control the
thing concerned/contraband–However, even in absence of
physical control of the contraband, culpable mental state of
accused can arise if the accused still has the requisite
degree of control over the contraband–Accused’s conscious
possession, in view of his special knowledge of location or
site of contraband article, with animus and intention to
retain exclusive control or dominion over it, would constitute
offence punishable under S.18--Fact that accused after
stealing opium form Magistrate Court’s malkhana concealed
it in a secret place and later led police party to discover the
same, shows his conscious possession–Words and Phrases
— “Possession”,” conscious possession”–“Possession” when
possible without actual physical control.
The concept of possession is basically connected to “actus of
physical control and custody”. Attributing this meaning in
the strict sense would be understanding the factum of
possession in a narrow sense. With the passage of time
there has been a gradual widening of the concept and the
quintessential meaning of the word “Possession”. There is a
degree of flexibility in the use of the said term and that is
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23 Spl.C.C.500/2021why the word “Possession” can be usefully defined and
understood with reference to the contextual purpose for the
said expression. Over the years, courts have refrained form
adopting a doctrinaire approach towards defining
Possession. A functional and flexible approach in defining
and understanding the possession as a concept is
acceptable and thereby emphasis has been laid on different
possessory rights according to the commands and justice of
the social policy. Thus, the word “possession” in the context
of any enactment would depend upon the object and
purpose of the enactment and an appropriate meaning has
to be assigned to the word to effectuate the said object.
The term “possession” ordinarily consists of two elements.
First, it refers to the corpus or the physical control and the
second, it refers to the animus or intent which has reference
to exercise of the said control. Coming to the context of
section 18 of the NDPS Act, it would have a reference to the
concept of conscious possession. The legislature while
enacting the said law was absolutely aware of the said
element. The word “possession” refers to a mental state as
is noticeable from the language employed in Section 35 of
the NDPS Act. It includes knowledge of a fact. That apart,
Section 35 raises a presumption as to knowledge and
culpable mental state from the possession of illicit articles.
The expression “possess or possessed” is often used in
connection with statutory offences of being in possession of
prohibited drugs and contraband substances. Conscious or
mental state of possession is necessary and that is the
reason for enacting Section 35 of the NDPS Act, 1985.
26. The learned Spl.P.P., has also relied on the
decision reported in (2015) 6 SCC 674 in the case of
24
Kulwinder Singh and another Vs., State of Punjab
wherein it is observed as here under:-
A. Narcotic Drugs and psychotropic Substances Act,
1985–Ss. 35 and 15–Recovery of contraband from
truck–factum of conscious possession–Invocation of
presumption of culpable mental state–Expressions
‘conscious’ and ‘possession’–Meaning of, restated–
Conviction confirmed–Held, once possession of
contraband is established, accused is presumed to be in
conscious possession–Further, if accused takes a stand
that he was not in conscious possession, he has to
establish the same–Herein, defence plea that both
appellant-accused were only traveling in truck and had
no knowledge of what the bags contained, rejected.
D. Narcotic Drugs and psychotropic Substances Act, 1985
—S. 15--Recovery of contraband from truck–No
independent witness examined to substantiate allegation
of prosecution as they had been allegedly won over by
accused–But, evidence of official witnesses, trustworthy
and credible–Prosecution case, trustworthy–Held, no
reason not to rest conviction on basis of such evidence of
official witnesses–Conviction confirmed.
This Court has gone through both the decisions carefully, as
held in the case of Mohan Lal –
The concept of possession is basically connected to
“actus of physical control and custody”. Attributing this
meaning in the strict sense would be understanding the
factum of possession in a narrow sense. With the passage
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25 Spl.C.C.500/2021of time there has been a gradual widening of the concept
and the quintessential meaning of the word “Possession”.
There is a degree of flexibility in the use of the said term
and that is why the word “Possession” can be usefully
defined and understood with reference to the contextual
purpose for the said expression.
When the possession also refers mental state as noticeable
from the language employed in Sec.35 of NDPS Act, the
initial burden of establishing that the contraband ordered
by the accused and he continuously ordered for it, is on the
prosecution. No doubt the parcel seized was in the name
and address of the accused. However, he specifically denied
the fact that he himself ordered for it. When he said to be
given voluntary statement that he does not know about the
said parcel, it was the duty of the investigating agency to
investigate further to ascertain whether the accused himself
ordered it or not. As seen from the evidence of PW.1 it was
sent by Mariagrazia Nicotra Via Immacolta 35, 95123
Catania CT, Italia. However, the investigating agency did
not make enquiry with the said addressor, the PW.1 or PW.3
during the course of investigation did not collect material to
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show that the accused himself ordered for the said parcel.
When the investigating agency apprehend a person with the
allegation of serious offence, it has to ascertain at least who
had made payment for the said order, whether payment was
made or not? If payment was made who had made payment
and what is the mode of payment? Is there any document
to that effect? All these aspects had to be verified by the
investigating agency. The learned counsel for the accused
also pointed out these aspects during the course of
arguments. The learned counsel apart from oral arguments
has also filed written arguments and relied on the decisions
in support of his arguments. There are as under:-
7. The trial Court vide its order dated 29-6-91 has framed a
charge against Surajmal only on the ground that the
contraband opium was found in possession of Surajmal as
the field belonged to him. The trial Court has solely relied
on Section 54 of the N.D.P.S. Act. It has failed to notice that
possession for the purpose of Section 54 of the N.D.P.S. Act
has to be a conscious possession and not a constructive
possession alone. It is true that it is not necessary that the
contraband must be found on the person of an accused
person or in his house alone. A person could be held
responsible for something which was found on the
premises, which are in his control but in such a case there
should be something in the circumstances that it was not
likely that the accused-person had no knowledge of the
CCH-33
27 Spl.C.C.500/2021
existence of the contraband on the premises. In the present
case, there is absolutely no evidence collected by the police,
which could show that Surajmal had any knowledge of the
contraband being concealed in his field. The circumstances
do not indicate that the contraband could not have been
kept on the field of Surajmal without his having knowledge
of it. It is after all; an open field, to which anyone could
have had an access in the absence of the owner and
especially when the owner had engaged a servant for
looking after the field, the possibility of a servant engaging
himself in illegal activities without the knowledge of his
master cannot be ruled out. As no evidence to connect the
master with the contraband has been collected, it appears
that the police have implicated Surajmal solely because he
is the owner of the field from which contraband opium was
recovered.
Therefore, as held in the said decision the ‘possession’ is not
a legal concept but also a matter of fact i.e., as a
relationship between a person and a thing. The test for
determining whether a person is in possession of any thing
is whether he is in general control of it.
27. If the principles laid down in the aforesaid
decision is taken into consideration, as already noted herein
above the investigating agency did not ascertain whether
actually the accused himself ordered for the parcel. No iota
of evidence to come to the conclusion that the accused with
28
an intention to get contraband, ordered for it by paying
money. Further, as per the evidence of PW.3 when he
conducted search in the house of accused he could not find
any incriminatory material in his house and not collected
any material from the Superintended of Post Office,
Mangalore to show the accused had ordered for contraband
even earlier to this case. When such being the case where is
the material to connect the accused with the said parcel.
Except the fact that the said parcel contains the address of
the accused nothing more on record to connect him with the
said parcel. The investigating agency had to work out more
in this regard and had to collect relevant documents to
show that the accused ordered for it. When there is no
material to show that he himself with conscious ordered for
it, it cannot be concluded that he himself ordered for it and
he is the conscious possessor of the said article. On the
same point of law the learned counsel has also relied on the
decision rendered in Crl.Appeal No.1953/2014 in the case
CCH-33
29 Spl.C.C.500/2021
of Rakesh Kumar Raghuvanshi Vs., State of MP wherein it is
observed as under :-
Thus, before the Court holds the accused guilty of the
offence under the NDPS Act, possession is something that
the prosecution needs to establish with cogent evidence. If
the accused is found to be in possession of any contraband
which is a narcotic drug, it is for the accused to account for
such possession satisfactorily, if not, the presumption
under Section 54 comes into place.
Therefore, as envisaged by the provision itself, unless and
until the contrary is proved in trials of cases involving
offences coming within the purview of the NDPS Act, it may
be presumed that the accused has committed an offence
under the Act in respect of any articles prohibited to be
possessed by him and for the possession of which, he
failed to account satisfactorily. Therefore, it is the burden of
the prosecution to establish that the contraband was seized
from the conscious possession of the accused. Only when
that aspect has been successfully proved by the
prosecution, the onus will shift to the accused to account for
the possession legally and satisfactorily. Conscious
possession refers to a scenario where an individual not
only physically possesses a narcotic drug or psychotropic
substance but is also aware of its presence and nature. In
other words, it requires both physical control and mental
awareness. This concept has evolved primarily through
judicial interpretation since the term “conscious possession”
is not explicitly defined in the NDPS Act. This Court through
various of its decisions has repeatedly underscored that
possession under the NDPS Act should not only be physical
but also conscious. Conscious possession implies that the
person knew that he had the illicit drug or psychotropic
30substance in his control and had the intent or knowledge of
its illegal nature.
Similarly, the learned counsel has also relied on the
decision reported in (2002) 7 SCC 419 in the case of
From the observations made in the aforesaid decisions it is
clear that the possession of contraband shall be conscious
possession. When once the prosecution initially establishes
the ingredients of the offences alleged against the accused
the burden shift on the accused to give explanation about
his possession of the article. However, in the present
matter, as already noted herein above the prosecution failed
to establish the conscious possession of the alleged
contraband with the accused. Hence, the reverse burden
did not shift on the accused.
28. The learned counsel for accused has also
highlighted the procedure that has to be followed U/s.50A of
the NDPS Act. During the course of cross examination of
CCH-33
31 Spl.C.C.500/2021PW.1 and PW.2 the learned counsel had posed certain
questions about controlled delivery. However, in the present
matter admittedly, the investigating agency has not followed
the procedure U/s.50A of NDPS Act. If at all they had
followed the procedure of controlled delivery definitely the
said line of investigation would have thrown light to arrive at
proper conclusion in the matter. However, as already noted
herein above the investigating agency has not even verified
who is the sender of the suspected parcel. The said aspect
is definitely fatal to the case of the prosecution.
29. Yet another aspect is that the accused is in the
habit of consuming narcotics. Though PW.3 in his
examination in chief has stated that while recording the
voluntary statement of accused, he has stated that he has
consumed MDMA, but in this regard no medical report is
collected. In the absence of medical report about
consumption of narcotics by accused, the allegation against
him does not stands proved.
32
30. The learned counsel for accused has relied on the
decision of Tofan Singh Vs., State of Tamil Nadu reported in
(2021) SCC 1 especially to consider the value of the
confession statement said to be given by the accused before
the investigating agency. Ex.P14 is the so call confessional
statement of the accused. The statement was recorded on
11.9.2020 but the accused signed the statement on
13.9.2020. When such being the case, it is the duty of the
investigating officer to explain why the signature of accused
has not been taken immediately after recording the so called
confession statement. The learned counsel for accused has
also submitted that under law the confession statement
must be recorded at once or if taken over multiple sessions,
it must be signed separately on each day. However, in the
present case as submitted by learned counsel for accused
after 2 days from the date of recording so called confession
statement the signature of accused was obtained and it
gives room to suspect the alleged confession statement.
…. …. ….
CCH-33
33 Spl.C.C.500/2021
158. We answer the reference by stating:
158.1. That the officers who are invested with powers
under Section 53 of the NDPS Act are “police officers”
within the meaning of Section 25 of the Evidence Act, as
a result of which any confessional statement made to
them would be barred under the provisions of Section
25 of the Evidence Act, and cannot be taken into
account in order to convict an accused under the NDPS
Act.
158.2. That a statement recorded under Section 67 of
the NDPS Act cannot be used as a confessional
statement in the trial of an offence under the NDPS Act.”
31. In view of the observation in the above said
decisions no much credence can be given to the voluntary
statement of the accused in the absence of recovery of
material object from him on the basis of his voluntary
statement. In view of the decisions in the foregoing
paragraphs, it is the considered view of this Court that
though the parcel was addressed in the name of accused
there is no iota of evidence to come to the conclusion that
he himself had ordered for the said parcel, that the
34
investigating agency miserably failed to establish that the
suspected article found in the conscious possession of the
accused. Absolutely there are no material to connect the
said article with the accused. The pendency of other
criminal cases against the accused does not come to the
rescue of investigating agency to minimize their task of
investigation and it does not help the Court to arrive at the
conclusion that the accused has committed the alleged
offences punishable U/s. 22(c), 23(c) & 27 NDPS Act
without legal acceptable evidence in the present case. In
view of that the accused is entitled to be acquitted for the
offences punishable U/s. 22(c), 23(c) & 27 of NDPS Act.
Accordingly, the Point for consideration is answered in the
Negative.
32. Point No.3: In the result, following:
ORDER
Acting under Section 235(1) of Cr.P.C. accused
Mohammed Nayeem is acquitted for the offences
CCH-33
35 Spl.C.C.500/2021punishable under Sections 22(c), 23(c) & 27 of NDPS
Act.
Accused is set at liberty if he is not required in
any other case subject to compliance of Sec.437A of
Cr.P.C.
M.O.1 & 2 contraband is ordered to be
returned to complainant for producing before the
Drug Disposal committee for disposal. M.Os.3 to 5 is
ordered to be destroyed as worthless.
[Dictated to the Stenographer, directly on the computer, typed by her,
corrected, signed and then pronounced by me in Open Court on this the 4th
day of July 2025)
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Pradeep Kumar
P.W.2 : Sri Sumit Arya
P.W.3 : Sri Mustkin Ahamad
P.W.4 : Sri Kamlesh Kumar
36
P.W.5 : Dr.Poornima Mishra
P.W.6 : Smt. K A Philomena Shalit
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Information (a) Sig., of PW.1 Ex.P.2 : Notice to panch witness Ex.P.3 : Notice to panch witness Ex.P.4 : Panchanama (a) Sig., of PW.1 Ex.P.5 : Forwarding Memo Ex.P.6 : Godown receipt Ex.P.7 : Seal register extract Ex.P.8 : Success Report U/s.57(A) (a) Sig. Of PW.1 Ex.P.9 : Test Memo (a) Sig., of PW.1 Ex.P.10 : Malkhana Register Ex.P.11 : Search authorisation Ex.P.12 : Arrest Report (a) sig., of PW.2 Ex.P.13 : Forwarding sample seal to CRCL Ex.P.14 : Voluntary statement Ex.P.15 : Arrest Memo (a) sig., of witness Ex.P.16 : Complaint Ex.P.17 : Letter sent to Surathkal Post Office Ex.P.18 : Letter sent to Surathkal Post Office Ex.P.19 : Notice U/s.67 of NDPS Act Ex.P.20 Statement of PW.6 (b) Defence: - NIL - CCH-33 37 Spl.C.C.500/2021
3.List of Material Objects admitted in evidence:
M.O.1 : Sample contraband
M.O.2 : Sample contraband
M.O.3 : Packing cover
M.O.4 : Postal cover
M.O.5 : Cover
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*
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