J GOPI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The accused is the appellant. This appeal is preferred against the judgment and conviction made in Calendar Case No. 56 of 1995 of dated 8-1-1996.

(2.) The course of events which led to the prosecution of the appellant under the Narcotic Drugs and Psychotropic Substances Act (hereinafter called 'the Act') was that on 4-8-1994 at about 14.15 hours, when the complainant alongwith his constables was checking the vehicles plying in the bye-pass road at the point where it was proceeding to G.M. Nagar on the Shulter bridge around 14.20 hours the scooter bearing registration No. TDC 4206, which was proceeding in the said bye-pass road from west to east, was stopped, that in the pillion seat, a gunny bag was found tied with a yellow rope, that on enquiring from the rider of the scooter, it was ascertained that he was the appellant; that he also informed the complainant that having carrying Ganja in the said gunny bag, that thereafter, when the complainant asked the appellant as to whether he would like to get himself searched in the presence of a Gazetted Officer, he stated that he could be searched by the complainant himself on the spot, that thereafter, he was arrested at 14.30 hours and "searched in the presence of P.W. 1 Vanjee swaran and one other person Thiru C. Mani, that the gunny bag weighed 29 kgs., that when the gunny bag was searched, it contained Ganja plants covered in a polythene fertilizer bag, and that after carrying out the formalities, the prosecution was laid against the appellant. The Trial Court, on consideration of the materials placed before it, by judgment dt. 8-1-1996, convicted the appellant under Sec. 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act and imposed punishment of two years' rigorous imprisonment, apart from fine of Rs. 15,000/- and in default of payment of the fine, to undergo further rigorous imprisonment of six months.

(3.) The learned Counsel for the appellant contended that though as per the provisions of the Act in the case of detection of contraband stuff from the bag of the accused, it should be presumed that the accused was in possession of the said contraband stuff and therefore the burden was upon the accused to rebut the presumption, in view of certain vital discrepancies found in the evidence of the prosecution, the very presumption itself cannot be stated to be available to the prosecution. According to the learned Counsel, the evidence of P.W. 1, who is stated to be the independent witness to the occurrence cannot be relied upon. The learned Counsel states that admittedly P.W. 1 was a mechanic attending to the repairs of the vehicles belonging to the police officers, that he was also magazar witness in another Calendar Cases No.858 of 1994, that admittedly at the time of search he was standing about 10 to 15 feet away from the place of search and, therefore, his version cannot be believed. The learned Counsel submits that if once the evidence of P.W. 1 is eschewed from consideration, then there would be no acceptable material on record to show that the appellant was in possession of the contraband article, I am unable to accept the submission of the learned Counsel. In the first place, merely because the magazar witness was known to the police officers by virtue of his acquaintance earlier cannot by itself be a ground to outright reject the version of that witness. Merely going by the said fact alone. I am afraid that the evidence of P.W. 1 could be doubted. There was no other vitiating circumstances pointed out to show that P.W. 1 was under compulsion to act as a magazar witness, in respect of the occurrence relating to the accused. Similarly, for the very same reason, the other ground raised by the learned Counsel for the appellant namely that P.W. 1 acted as magazar witness in some other cases would vitiate or make the evidence of P.W. 1 unbelievable. A reading of the evidence of P.W. 1 disclosed that there was nothing to suggest any contradiction or an unreliable statement made thereunder. I am of the view that on the alleged ground that P.W. 1 was also a mechanic attending to the vehicles of the police officers and that he was also a magazar witness in some other cases would hardly be a ground to reject his evidence in toto. As far as the other contention namely that P.W. 1 was standing 10 to 15 feet away from the place where the search was made and, therefore, his version about the detection of Ganja from the gunny bag kept by the appellant cannot be believed, as already pointed out, admittedly the Ganja found in the gunny bag weighed about 29 Kgs. Therefore, it cannot be said that a person with normal vision could not have noticed the contents of that much quantity of Ganja found in a gunny bag from a distance of 10 to 15 feet. In such circumstances, the said ground stated by the learned Counsel for the appellant is also not acceptable. Therefore, taking into consideration the evidence of the independent witness, P.W.1, it could be safely concluded that the initial presumption contemplated under the provisions of the Act is duly complied with and, consequently, the burden has shifted upon the appellant to rebut the said presumption. On a perusal of the evidence available on record, nothing was pointed out to show that the said presumption was rebutted by the appellant.