Heard Shri Daga, Advocate for the appellants and Shri Jichkar, Additional Public Prosecutor for the respondent - State.

2.This is an appeal filed by the appellants (hereinafter referred to as accused), seeking to quash and set aside the judgment and order dated 18-1-2002 passed by the Additional Sessions Judge, Gondia, in Special Criminal Case No. 6 of 2001, convicting them for committing an offence under Section 20(b)(i) of N.D.P.S. Act, 1985, and sentencing them to suffer R.I. for three years and to pay a fine of Rs. 5,000/- each, in default of fine, to suffer further R.I. for six months.

3.The brief facts of the prosecution are as under :

(a) On 7.4.2001, P.W.8 - lady P.S.I. Deoki was on duty at Police Station Gondia (City). On that date at about 1.15 P.M., Sub-Divisional Police Officer by name Shri Shende, who was her superior, directed her to effect raid on a person who was possessing Ganja in Village Nagra.

(b) On receipt of such directions, P.S.I. Deoki, entered the direction in the Police Station diary, Gondia (City) Police Station. She then issued a direction to one constable for calling a person with a weighing scale and also calling an Executive Magistrate and two panchas. She wrote a letter to the Tahsildar Gondia for deputing the Executive Magistrate to remain present at the time of initiating raid. After about half an hour, she went to the Police Station Gondia (Rural) with the police staff. At about 3.15 PM, the Executive Magistrate P.W.7 - Shri Wadibhasme, Panchas and a person with the weighing scale came to the Police Station, Gondia (Rural). P.W.8 - P.S.I. Deoki then requisitioned a private jeep, informed all the persons assembled, about the raid and the reason behind it. Regarding such information given, she made another entry in the Police Station diary of Gondia (Rural) Police Station. She then called a photographer and in two police jeeps, the entire party proceeded to an area Mohrantoli, near village Nagra. While leaving, she made another entry in the Police Station diary. The informer was with this police party and he pointed out the house where the narcotic substance was said to have been stored and which house was situated at Mohrantoli area.

(c) P.W.8 - P.S.I. Deoki, the Executive Magistrate - Shri Wadibhasme, Panchas and others then went to that house and called the persons who were inside to come out. Two accused came out of the house. They informed their names as Netlal Lilhare and Umabai Nitlal Lilhare. P.W.8 informed both of them that there was Ganja in their house and, therefore, their house was required to be searched. She introduced the members of her party to the accused and issued a written letter to them informing that they were at liberty to take the personal search of all the members of the raiding party. Both the accused refused to take a search. Thereafter, P.W.8 proceeded to search the house and in the house, she found a plastic bag containing about 30 to 40 small packets. When one bag was opened, green leaves with irritant smell was noticed. In that house, one tin containing such green leaves was also found. These green leaves were also of ganja. The Ganja which was in the tin and in the packets were taken out of the house and all these leaves were mixed together and weighed. The total weight of the ganja was found to be 3.5 kgs. out of this, two samples of ganja weighing 100 gms. each was collected. The samples packets of ganja were sealed and the label signed by P.S.I., Executive Magistrate and Panchas were pasted to the packets. For sealing the packets, the sealing wax was used and facsimile seal of Head Constable - Khobragade, Buckle No. 554 was used. The remaining ganja was filled in the tin and it was tied with the string and sealed by means of sealing wax. The signatures of Executive Magistrate, panchas, accused and the P.S.I. were taken on the paper seal and it was pasted to the tin. The entire procedure was recorded in the panchanama which was signed by the P.S.I., Executive Magistrate, panchas and the accused.

(d) After this, the entire police party and others came back to Gondia (Rural) Police Station with the accused and property. P.W.8 personally gave information to P.I. Police Station Gondia (Rural) about the raid. This information was given in writing and was signed by P.S.I. Along with this written information, P.S.I. also enclosed a copy of the Station diary entry under which she had recorded the receipt of information from S.D.P.O. P.W.8 registered the crime at Police Station Gondia (Rural). She handed over sealed bags and tin containing ganja to P.I. Gondia (Rural). The P.I. Gondia sealed the small bag and tin of ganja articles were kept at malkhana of the Police Station after making entry in the malkhana register.

(e) Subsequently, P.W.9 - Sakhare, who was a police constable, was entrusted with the job of carrying the seized articles to Chemical Analyser. They were received by the Chemical Analyser in a sealed state. Analysis of the Chemical Analyser indicated that the substances therein were ganja. The Chemical Analyser accordingly submitted his report which can be seen at Ex.44. Subsequently, the charge sheet came to be filed and the matter was committed to trial.

(f) At the trial, the prosecution examined nine witnesses. The case of the accused was of total denial. As can be seen from 313 statement, the accused clearly denied that they were present in the house because their case was that they were arrested elsewhere and brought to the house subsequently. It may be stated that two panch witnesses of the seizure panchanama did not support the factum of seizure. But the trial Court accepted the theory of the prosecution as the same was corroborated by the Executive Magistrate, P.W. 1 Bhagwandas, Photographer, who was part of the raiding party and P.W.6 Prakash who was another police constable, who was also a part of the raiding party. Upon appreciation of evidence and documents produced on record, the impugned judgment and order came to be passed.

4.The first point urged on behalf of the accused is that there was no compliance of Section 50. There is no substance in the contention of the accused because Section 50 is not attracted to the facts of the present case. It is not the prosecution case that the police party was about to search the accused at all. Infact, a written letter at Ex.40 was issued by P.W.8 Deoki to the accused clearly indicates that the search was to be made of the house alone and if this be the case, the question of compliance of Section 50 does not arise. The second submission made on behalf of the accused is that the prosecution had not proved the ownership of the house and the mere fact that the accused were found inside the house cannot be used to raise a presumption in law regarding the accused persons knowing about the presence of ganja or about being in possession of said ganja. The advocate for the appellant relied upon the judgment of the Apex Court in the case of Ismailkhan Ayubkhan Pathan vs. State of Gujarat, reported in 2000 SCC (Cri.) 1241.

5.I have perused the aforesaid judgment of the apex Court. The facts in the aforesaid case before the apex Court were entirely different. In that case, the room in which the accused were found, admittedly was in possession of a person "N". The person by name "N" was not an accused in that case. On the contrary, he was not examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbors supported the prosecution case that any one of the accused had any connection with the article in question. Thus the only modicum of evidence available against the accused was that they were present in the room which was in the possession of "N" and that the said room contained gunny bag with the narcotic substance i.e. Charas. In the background of such facts, the apex Court observed that it was not possible to sustain the conviction under Section 20(b) of the Act, read with Section 29 of the Act, against any of the appellants on the strength of the aforesaid evidence. It was held that such evidence was insufficient to bring home the guilt of the appellants. It was held that the High Court erred in placing the burden on the appellants to explain as to how they were present in the room. That there was no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. That presumption under law could not be drawn even under Section 114 of the Evidence Act, merely because these persons were present when the police party went there. It was observed that either those persons could have been casually present in the room or at least one of them would have been unaware of what was going on inside the room. In the light of these observations, the conviction was set aside.

6.In the present case, the facts are different. The house in question, according to the P.S.I. was not an allotted house. The witnesses are consistent that when the accused were called out of the house, they came out and given their name to the P.S.I. In their 313 statement, the accused have not contended that their presence was casual. It is not their contention that the house belonged to any other person. Their defence is infact of total denial. Their contention is that they were not in the house. Once their contention is disbelieved on the strength of prosecution witnesses then there does not remain any explanation by the accused to explain their presence in the house. In such a situation, it would be open for the Court to raise a presumption under Section 114 of the Evidence Act.

7.I find in this case that P.W.8 Deoki has conducted a thorough investigation. The prosecution case was properly and fully proved. I am in agreement with all the reasons given by the trial Court in this matter. I find that there is no substance in the appeal and hence this Criminal Appeal is dismissed.