The Gujarat High Court’s dismissal of the State’s appeal reaffirms that mere recovery of narcotics does not establish criminal liability under the NDPS Act. Conviction requires proof of conscious possession and an unbroken chain of custody - both of which must withstand scrutiny beyond reasonable doubt.
Background & Facts
The Dispute
The State of Gujarat appealed against the acquittal of Abdul Rahim alias Riju Abdul Rehman Sheikh, who was charged under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing 1 kg 650 grams of charas in the open dickey of his scooter. The prosecution claimed the recovery was made based on secret intelligence, with panch witnesses present during seizure.
Procedural History
- 03 March 2000: Accused intercepted near Ghodasar Railway Crossing; charas recovered from open dickey of scooter (GBN3436)
- 2000: Charge-sheet filed before Magistrate; case committed to Sessions Court as Prohibition Case No. 5041/2000
- 08 February 2001: Additional Sessions Judge acquitted accused, citing lack of proof of conscious possession and suspicious chain of custody
- 2001: State filed appeal under Section 378 CrPC
Relief Sought
The State sought reversal of the acquittal, arguing that the recovery of substantial quantity of charas, corroborated by seizure panchnama and FSL report, was sufficient to establish guilt.
The Legal Issue
The central question was whether conscious possession under Section 20(b)(ii) of the NDPS Act can be inferred solely from recovery of narcotics from a vehicle, or whether the prosecution must prove the accused’s knowledge, control, and intent beyond reasonable doubt.
Arguments Presented
For the Appellant
The State contended that the recovery of a large quantity of charas from the accused’s scooter, supported by seizure panchnama and FSL report, established a prima facie case. It argued that the accused’s denial was unsubstantiated and that the trial court erred in discounting the testimony of the investigating officer and panch witnesses. Reliance was placed on the principle that possession in proximity to contraband raises a presumption of knowledge.
For the Respondent
The accused, through his counsel, emphasized that the dickey was open, no ownership of the scooter was established, and no independent witnesses corroborated the recovery. He alleged false implication due to a prior dispute with local traders. The defense highlighted contradictions in the chain of custody of the muddamal, failure to examine impartial witnesses, and the suspicious nature of secret intelligence.
The Court's Analysis
The Court undertook a meticulous reappreciation of evidence, applying the double presumption in favour of the accused in appeals against acquittal, as laid down in Rajesh Prasad v. State of Bihar and H.D. Sundara & Ors. v. State of Karnataka. It held that while the quantity of charas was proven, the prosecution failed to establish conscious possession.
"It would be excessive conjecture to assume that the accused had himself placed the muddamal in that dickey. Had he done so, he would have kept the dickey closed. It is highly improbable that the accused would openly roam around with narcotic substance kept in an open dickey in this manner."
The Court noted that the absence of independent witnesses, the open nature of the dickey, and the lack of proof of scooter ownership rendered the recovery suspect. The contradictory testimonies regarding the dispatch of the muddamal to the FSL - particularly between Constable Chandubhai Nayak and PSI Parmar - undermined the integrity of the chain of custody. The Court emphasized that the burden of proving conscious possession lies squarely on the prosecution, and cannot be discharged by mere proximity or speculation.
The Court further held that the trial court’s conclusion was not merely possible but the only reasonable one, given the glaring infirmities. The appellate court cannot substitute its view merely because another interpretation exists; interference is warranted only if the acquittal is perverse or no other conclusion is possible.
The Verdict
The State’s appeal was dismissed. The Gujarat High Court confirmed the acquittal, holding that conscious possession and an unbroken chain of custody must be established beyond reasonable doubt under the NDPS Act. Mere recovery from a vehicle, without proof of control or knowledge, is insufficient for conviction.
What This Means For Similar Cases
Conscious Possession Cannot Be Presumed
- Practitioners must now demonstrate direct or circumstantial evidence of the accused’s knowledge and control over the contraband
- Recovery from an open compartment, without corroboration, will not suffice to infer possession
- Defence counsel should challenge the prosecution’s assumption of intent based on proximity alone
Chain of Custody Must Be Unbroken and Documented
- Every transfer of muddamal - from seizure to FSL - must be recorded with dates, signatures, and witness attestations
- Contradictions in custody logs will trigger reasonable doubt, even if the substance is proven to be narcotic
- Prosecution must call all custodians; failure to do so weakens the case materially
Independent Witnesses Are Non-Negotiable
- Recovery without impartial witnesses raises suspicion under Section 50 of the NDPS Act and Section 161 CrPC
- Police-only corroboration is insufficient; courts will not accept self-serving testimony without external validation
- Defence should move for summoning independent witnesses if none were examined
