JUDGMENT
Ghanshyam Prasad, J.
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1. This appeal has been preferred by the sole appellant against the judgment of conviction and sentence dated 30.9.2005 passed by Sri Ram Prabhu Pandey, 3rd Additional Sessions Judge, Muzaffarpur in Case No. 53 of 2003. The sole appellant has been convicted under Section 20(B) as well as under Section 23 of the N.D.P.S. Act and has been sentenced to undergo R.I. for ten years under each count to pay fine of Rs. 1 lac and in default to undergo R.I.R. for one year.
2. The prosecution case in brief is that on 14.8.2003, Custom Department, Muzaffarpur received a telephonic message with regard to illegal import of ganja from Nepal through Jeep No. WB-2A-7539 from the side of Dhaka, East Champaran. Under the leadership of Mr. M.P. Singh, Custom Inspector(P.W.6), a raiding team was organised. The team took position on N.H.28 near Motipur. At about 4.00 P.M., the aforesaid jeep was found coming from the side of Motihari. However, seeing the custom jeep, the driver of the jeep turned his jeep, the custom officials chased the jeep but the driver of the jeep after stopping the jeep fled away. This appellant in saffron colour dress was found sitting on the jeep. He did not attempt to flee away. On enquiry, he disclosed his name and also told that he was a Sadhu and was coming from Janakpur. He took lift in jeep at Mahesi Railway Station.
3. The custom officials checked the jeep and ultimately, recovered 86.35 kgms. of ganja from secret chamber of the jeep. The ganja was seized in presence of two independent seizure list witnesses and sample of ganja was sent to Gazipur for chemical examination.
4. The appellant was arrested and his voluntarily as well as interrogatory statements were recorded by different custom officials. Ultimately, complaint was lodged against the appellant before the court of Sessions Judge.
5. In course of the trial, 13 witnesses were examined by the prosecution including complainant Durga Choudhary as P.W.4 and seizure list witnesses Nagina Prasad (P.W.12) and Rakesh Kumar (P.W.13).
6. Defence of the appellant is false implication and. plea of innocence. He is Sadhu and has already renounced the world long ago while he was returning from Janakpur after having darshan of the deity, he took lift in the jeep for coming to Hajipur. He had no knowledge about the presence of ganja in false chamber of the jeep. Had he Page 2134 knowledge about the presence of illicit ganja he would have tried to flee away alongwith driver of the jeep. In support of his defence, he has examined two witnesses, as D.W.1 Abhinash Prasad Sah, D.W.2 Madhu Ram.
7. There is no dispute that ganja was recovered from false chamber of the jeep in question. Almost all witnesses have supported this fact. The chemical examination (Ext.5) also confirms that the recovered article from the jeep was ganja. The recovery was also made before two independent local witnesses as required under the Act. They are P.Ws.12 and 13. They have put their signature and L.T.I. upon the seizure list/memo (Ext.1). Seizure was conducted by P.W.4 Durga Choudhary. He in his evidence has fully supported about the recovery of ganja from false chamber of the jeep.
8. Section 20(E), of the N.D.P.S. Act provides punishment for possession of cannabis (ganja). Section 54 provides presumption of commission of offence under the Act from mere possession of illicit articles. Section 54 of N.D.P.S. Act runs as follows:
54. Presumption from possession of illicit articles.- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of-
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured,
for the possession of which he fails to account satisfactorily.
9. The word possession is used in various sections of Chapters III and IV of the N.D.P.S. Act. However, it is nowhere been defined under the Act. The apex court in a decision reported in 1973 Supreme Court 2309 (Inder Sain v. State of Punjab) has defined the real meaning of possession in a case of Opium Act. The language of Section 9 of the Opium Act is almost similar to that of Section 20(B) of the N.D.P.S. Act or Section 23 of the Act. In paragraphs 15 and 21 of the judgment, it has been held as follows:
15. We think that the only question for consideration here is whether the appellant was in possession of opium. It was held in a number of rulings of the various. High Courts that if possession of an article is made an offence, then there must be proof that the accused was knowingly in possession of the article. See the decisions in Emperor v. Santa Singh AIR 1944 Lah 339; Sahendra Singh v. Emperor AIR 1948 Pat 222, Abdul Ali v. The State AIR 1950 Assam 152, Pritam Singh v. The State 68 Pun LR 200 : AIR 1967 Punj 50 and Sub-Divisional Officer and Collector, Shivasagar v. Gopal Chandra Khaund .
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21. It does not follow from this that the word ‘possess’ in Section 9 does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word ‘possess’ connotes, in the context of Section 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge an offence. A conviction under Section 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession.
10. From above decision, it is quite clear that mere presence of ganja in jeep does not constitute possession. There must be knowledge about it on the part of the occupant.
11. The learned lower court has relied upon the voluntarily (Ext.3) and interrogatory (Ext.2) statements of the appellant. It is settled law that confession/statement of the accused recorded by the custom officials under Section 53 or Section 67 of the N.D.P.S. Act is not hit by Section 25 of the Evidence Act as they are not police officers (see 1962 Supreme Court 276 and 1970 Supreme Court 940). Therefore, it can be used against the accused for determining the question of possession. However, it must be voluntary in true sense and not obtained through threat of inducement of the accused. Prolong custody of the accused is one of the circumstances to show involuntary nature of the statement.
12. In present case, there is a pecularity in recording the voluntarily as well as interrogatory statements (Exts.2 and 3). The appellant was arrested on 14.8.2003 at 4.00 P.M. On the same day, both statements were recorded by the custom officials. In both the statements, he denied about having any knowledge of presence of ganja in false chamber of the jeep. He also stated that he is a Sadhu and while he was returning from Janakpur after having darshan he took lift in the jeep from driver. On the next day, i.e. 15.8.2000 again, his statements were recorded in continuity of the above statements. In that very statements, it is alleged that he made confession of the offence as also knowledge about possession of ganja in the jeep.
13. The question is whether the statements recorded on 15.8.2000 can be treated as voluntarily which is sine qua non for admissibility of the statement recorded by custom officials under Section 67 of the Act. The answer is in negative simply because it was recorded after prolong detention in custody. Earlier statement recorded on 14.8.2000 can be treated as voluntary statements. Both the statements being of diabolically contradictory cannot be relied upon for the conviction in such a grave nature of offence, It is important to mention here that none of the statements is in pen of the appellant.
14. Apart from so called voluntarily/interrogatory statements (Exts.2 and 3), there is no other material on the record to show that the jeep in question belonged to the appellant or he had any knowledge about the presence of ganja in false chamber of the jeep. The fact of confession in Exts.2 and 3 has also not been produced to the notice of the appellant in his statement recorded under Section 313 of Cr.P.C. The object of Section 313 Cr.P.C. is to provide an opportunity to the accused to explain the circumstances or incriminating material that appear against him in the evidence. This is not mere formality. It is valuable right of the accused. In this case, the appellant was denied an opportunity to explain so-called confessional statement Page 2136 recorded by the custom officials, upon which the conviction is based, by not putting specific question about the confession. On that place vague question has been put to the accused only with regard to interrogatory statement as to whether statement given in interrogatory statement is true or not. The answer is not only in negative but also that his signature was obtained by putting him under threat and fear. No question has been put with regard to the so-called voluntary statement. Therefore, no much reliance can be placed either on Ext.2 or on Ext.3.
15. Circumstances also do not justify that the appellant had any knowledge about ganja in false chamber of the jeep. On seeing the jeep of custom department, the driver of the jeep in question fled away but the appellant did not even make any attempt to flee away. On the other hand, he did not move from his seat even after seeing the officials approaching him. This clearly goes to show absence of knowledge on his part with regard to presence of ganja in the false chamber of the jeep. These facts show that the defence of the appellant has got truth. The defence is that the appellant is a Sadhu and he had merely taken lift from the driver to come to Hajipur.
16. Thus from the above discussions, this Court is of firm opinion that the prosecution has miserably failed to prove that the ganja was recovered from conscious possession of the appellant as required under the law. Therefore, no presumption can be drawn against him with regard to guilt of any offence under Chapter-Ill or IV of the N.D.P.S. Act. Apparently, the conviction of the appellant either under Section 20 or under Section 23 of the N.D.P.S. Act is bad and illegal.
17. In the result, this appeal is allowed. The judgment in question is hereby set aside. The appellant is directed to be released at once, if not wanted in any other case.