- The appellant had been sentenced to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh by the Civil and Session Court under Section 20(1)(b) and Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
- The appellant and accused no. 2, Yoram Kadesh, had gone to the Sahara Airport of Bombay with their luggage and tickets for Bombay-Amsterdam-Berlin sector.
- The two bags of Yoram Kodesh were not searched. When the bags of appellants were checked under the X-ray scanner, it was not cleared and was handed over to the Customs unit.
- The bag had a false bottom and about 10 kg of Hashish was discovered in the back.
- Subsequently, the bags of accused no. 2 were also checked but no contraband articles were discovered in the same.
- The appellant stated that she knew the Kodesh since 1999. She had bought a ticket to Australia and had given it to Yoram to get it revalidated as the ticket was due to lapse in 2 days.
- The appellant further stated that Yoram ahd asked her to accompany him as he had excessive luggage and had offered that she could stay in Berlin at his expense.
- He had also made arrangements for her trip from Berlin to Australia.
- The appellant's bag had been torn during the journey and hence her belongings were kept in Yoram's bag.
- The appellant had also questions accused no. 2 if there was anything objectionable in the bag but the he had assured her that there was nothing objectionable in the bag
- Thus, the appellant asserted that she was unaware of the presence of Hashish in the bag.
- Accused no. 2 also denied being aware of the contents of the bag and asserted that he was not the owner of the bag.
- Mr. Jethmalani, the counsel for the appellant did not challenge the recovery, seizure and expert report adduced by the prosecution.
- He contended that the appellant was a 22 year or young girl who provided health services to people. She helped the people in backward areas such as Africa.
- She was naive and inexperienced as compared to 35 years old accused no. 2 who had been suspected of being involved in narcotic trafficking by the customs department.
- The counsel stated that the investigation agencies had failed to recover the torn bag that the appellant stated to have been at the hotel room in which they stayed.
- He relied on the cases of Abdul Rashid Ibrahim v. State of Gujarat.
- The prosecution contended that the burden of proof was on the applicant as she had checked in with the bag as her own.
- The appellant had not brought anything in record to rebut the presumptions against her.
- Section 35: Presumption of culpable mental state
- Section 54: Presumption from possession of illicit articles
- The Court held that as per Section 35, it had to make a presumption of culpable mental state on the part of the accused. However, such presumptive was rebuttable.
- Furthermore, under Section 54, the Court had to presume that the offense was committed by the accused unless the contrary is proved.
- As per the Supreme Court judgment in the case of Abdul Rashid Ibrahim v. State of Gujarat, if there is a strong doubt as to whether the appellant was aware of the substances of the bag, benefit of doubt could be given to her.
- The Court noted that the baggage claim tags were attached to the tickets of accused no. 2. This indicated that the accused no. 2 was in control of the bags.
- The Court observed that as per the Customs department investigation, the accused no. 2 and his brother were habitual drug traffickers.
- The Court noted that even the prosecution side had mentioned in the complaint that the concerned bag was given to the appellant by accused no. 2.
- Furthermore, when the concerned bag had been checked through the X-ray machine and the appellant and the accused no. 2 were asked as to whom did the bag belong, they had stated that it belonged to the appellant after discussing for about 30 seconds.
- Had the appellant known that there was Hashish in the bag, she would have never admitted that the bag belonged to her.
- Lastly, the Court noted that when she had checked into the hotel Causeway, where the accused no. 2 had allegedly given her the concerned bag, no one had seen her carrying the bag.
- With regards to the statement signed by the appellant before the custom authorities that it was her first offense, the Court held that when read in whole, the statement could not be said to be an inculpatory statement.
The Court thus allowed the appeal and set aside the judgment of the subordinate Court. The appellant was directed to provide her permanent address.