1. The first accused in S.C. No.10/2012 on the files of the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”), Vatakara, is the appellant herein and he assails the judgment rendered in the said case dated 27.11.2015 in this appeal.

2. Heard the learned counsel for the appellant and the learned Senior Public Prosecutor. Perused the records of the Special Court and the verdict impugned.

3. On finding conscious possession of 10.120 grams of brown sugar at the hands of the 1st accused and 0.760 gram of brown sugar at the hands of the 2nd accused at 14.00 hours on 14.12.2011, PW8, the Sub Inspector of Police, Malappuram, arrested them along with the contraband. Thereafter, a crime was registered alleging commission of offences punishable under Sections 21(b) and 29 of the NDPS Act by accused Nos.1 and 2.

4. On receipt of the final report, the learned Special Judge framed charge and proceeded with the trial. PWs.1 to 8 were examined, Exts.P1 to P16, and Mos.1 to 3 were marked on the side of the prosecution. No defence evidence was adduced.

5. Thereafter, the learned Special Judge found, on analysis of the evidence, that the 1st accused had committed offence punishable under Section 21(b) of the NDPS Act and the 2nd accused had committed offence under Section 21(a) of the NDPS Act and, accordingly, they were convicted for the said offences and sentenced as under:

                  “1) A1 is sentenced to undergo rigorous imprisonment for 2 (two) years and also to pay a fine of ₹.50,000/-

                  (Rupees Fifty Thousand only) in default, R.I. for three months u/s. 21(b) of NDPS Act.

                  2) A2 is sentenced to undergo rigorous imprisonment for 3 months u/s. 21(a) of the NDPS Act.

                  3) Set off u/s 428 of Cr.P.C. is allowed.”

6. Though the appellant/1st accused has preferred the present appeal, no appeal preferred by the 2nd accused is pending before this Court at present.

7. The learned counsel for the appellant submitted that, though he had raised a contention as regards non-compliance of Sections 42 and 50 of the NDPS Act to unsettle the verdict impugned, the said contention could not be available to him, as the evidence would show compliance of those statutory requirements. However, the learned counsel argued that the evidence available is insufficient to find commission of offence punishable under Section 21(b) of the NDPS Act by the appellant/1st accused. He also submitted that, in the event of confirmation of the conviction, the sentence may be modified showing maximum leniency.

8. The learned Senior Public Prosecutor argued that, in this case, all the statutory mandates under the NDPS Act have been properly complied with and that the evidence relied on by the Special Court establishes the commission of offence under Section 21(b) of the NDPS Act by the appellant/1st accused, and therefore, the judgment of the Special Court needs no interference.

9. Adverting to the rival contentions, the points that arise for consideration are:

                  (i) Whether the Special Court is justified in finding that the appellant/1st accused committed the offence under Section 21(b) of the NDPS Act?

                  (ii) Whether the impugned verdict would require interference?

                  (iii) The order to be passed?

Point Nos. (i) to (iii)

10. PW8 examined in this case is the S.I. of Police, Malappuram, who got secret information regarding the possession of contraband by the accused persons. PW8 had given evidence supporting the prosecution case. According to him, while he was working as the Sub-Inspector of Police, Malappuram, he got an information, and pursuant to the information, he had proceeded to the place after making necessary entries in the G.D. and forwarding Section 42 report to his superior officer. He deposed that he had reached the place along with the police party and found the accused persons at the north-eastern corner of the bus stand. PW8 introduced himself and informed them that he came to the place on knowing that they had been possessing brown sugar and intimated to the accused regarding his intention to search their bodies and the right of the accused persons to be searched before a Gazetted Officer or a Magistrate. As they wished to avail themselves of the said right, he secured the presence of PW7, Excise Circle Inspector, Gazetted Officer, in whose presence and in the presence of independent witnesses, the accused persons were searched on their bodies. On search of A1, from his waist, a plastic cover was found and, when he opened and examined, he had found six small packets containing a total quantity of 10.120 grams of brown sugar, which were seized. On search of A2, from the pocket of his shirt that a plastic cover was found and, when it was opened, a packet was seen. When the said packet was unwrapped and examined, the same contained 0.760 gram of brown sugar. It was in the said context he had arrested both accused persons and it was through him Exts.P10 and P11 arrest memos were tendered in evidence. According to PW8, notices of arrest, viz., Exts.P12 and P13, were given to the brother of A1 and father of A2 respectively. He deposed about collection of samples in a tamper proof manner by affixing seals and necessary labels. In this connection, Ext.P1 seizure mahazar was prepared.

11. In the instant case, supporting the evidence given by PW8, PW1, the Senior Civil Police Officer who accompanied PW8, in fact gave categorical evidence in terms of the evidence spoken to by PW8. Thus, the evidence of PW1 and PW8 as to recovery of the contraband spoken to by them was not at all shaken during cross-examination.

12. Here, the prosecution case and the evidence given by PW1 and PW8 are to the effect that the body search of the accused persons was conducted in the presence of a Gazetted Officer, as requested by the accused persons, when their right to be searched in the presence of a Gazetted Officer was informed to them. PW7, the Gazetted Officer gave evidence in support of this case stating that he was present at the time of search and recovery of the contraband, namely, brown sugar, from the possession of accused Nos.1 and 2 by preparing Ext.P1 mahazar. He also deposed about the collection of samples therefrom for the purpose of obtaining chemical analysis report. Thus, as rightly conceded by the learned counsel for the appellant in this case, Section 50 of the NDPS Act was in fact complied with. The contraband and other articles marked as MOs.1 to 3 were recovered from them. As regards compliance with Sections 42 and 57, Ext.P4 and Ext.P15 were tendered in evidence through PW8 to show compliance of the said statutory mandates. Therefore, there is satisfactory compliance of the statutory requirements mandated under Sections 42, 50 and 57 of the NDPS Act in the instant case. As per Ext.P7 chemical analysis report, the contraband was found to be brown sugar, as alleged by the prosecution. Here, 10.120 grams of brown sugar was seized from the pocket of the 1st accused after complying with the mandate of Sections 42 and 50 of the NDPS Act, and the contraband was produced before the Court and thereafter forwarded to the FSL without scope for any tampering, to prove the ingredients to find commission of offence under Section 21(b) of the NDPS Act by the appellant. Section 21 of the NDPS Act provides as under:

                  “21. Punishment for contravention in relation to manufactured drugs and preparations.

                  Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,

                  (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;

                  (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

                  (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

                  PROVIDED that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

13. Thus, going by the statutory mandate under Section 21(b), any person who possesses any manufactured drug or any preparation containing any manufactured drug shall be punished when the possession is in contravention of any of the provisions of the NDPS Act or any rule or order made or condition of licence granted thereunder. Here, the appellant has no case that he had possessed the brown sugar (a manufactured drug) as permitted by licence or otherwise. Thus, offence punishable under Section 21 could be attracted from the evidence discussed hereinabove. As per Section 21(b), the punishment is 10 years and with fine which may extend to one lakh rupees, when the contraband is less than commercial quantity but greater than small quantity. Here, 10.120 grams of brown sugar is an intermediate quantity (less than commercial quantity but greater than small quantity) and, therefore, the punishment for possession of 10.120 grams of brown sugar is as provided under Section 21(b) of the NDPS Act.

14. In this connection, it is relevant to refer the special provisions in the form of Sections 35 and 54 incorporated in the NDPS Act under the caption “Presumption of culpable mental state” and “Presumption from possession of illicit articles”.

                  Section 35 of the NDPS Act reads as under ;

                  “35. Presumption of culpable mental state.

                  (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

                  Explanation : In this section “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

                  (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.”

15. Section 54 also deals with presumption from possession of illicit articles and it has been provided as under:

                  “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.”

16. Thus, as per Section 35 of the NDPS Act, culpable mental state is a matter of statutory presumption. Thus, once the prosecution establishes conscious possession of the contraband, the burden shifts to the accused to prove otherwise. Vide licet, when the prosecution discharges its burden, it is for the accused to prove that he had no such mental state with respect to the act charged as an offence in that prosecution. In Noor Aga v. State of Punjab [(2008) 16 SCC 417], the Apex Court considered the impact of the reverse burden cast upon the accused to prove absence of culpable mental state and, in the said decision, it was held by the Apex Court that the provision casting a reverse burden on the accused under the NDPS Act is constitutionally valid. Then also, the prosecution was first required to establish the fundamental facts of the case beyond reasonable doubt before invoking any statutory presumptions. It was also held by the Apex Court that when the NDPS Act imposes a reverse burden of proof under Sections 35 and 54 of the NDPS Act, the standard of is preponderance of probability and not beyond reasonable doubt.

17. Thus, in the instant case, the prosecution successfully established commission of offence punishable under Section 21(b) of the NDPS Act by the appellant, as found to be committed by the appellant by the learned Special Judge. In such a view of the matter, the conviction is liable to be confirmed.

18. Coming to the sentence, the sentence imposed by the learned Special Judge is only for two years and payment of fine of Rs.50,000/-. Having considered the fact that brown sugar was the contraband seized from the appellant, this Court is of the view that the sentence imposed is reasonable and the sentence also does not require any interference.

19. In view of the above, this criminal appeal fails and is dismissed.

20. The order suspending sentence and granting bail to the accused stands vacated, with direction to the appellant to appear before the special court forthwith to undergo the sentence, failing which the special court is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the special court for information and compliance.