http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

CASE NO.:

Appeal (crl.) 786 of 2002

PETITIONER:

Madan Lal and Anr.

RESPONDENT:

Vs.

State of Himachal Pradesh

DATE OF JUDGMENT: 19/08/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NOS. 788/2002 AND 905/2003

ARIJIT PASAYAT,J

Since these three appeals involve identical issues they are

disposed of by this common judgment.

The appellants and one other person faced trial for alleged

commission of offence punishable under Section 20 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (in short 'the Act').

All the five accused were found guilty of the alleged offence and

all of them were sentenced to undergo rigorous imprisonment for a term

of 10 years and to pay a fine of Rs.1 lakh with a default stipulation

of a further rigorous imprisonment of 3 months in case of default to

pay the fine.

By the impugned judgment the High Court of Himachal Pradesh at

Shimla dismissed the appeals filed by the accused appellants.

In appeal Nos. 786/2002 and 788/2002 at the Special Leave

Petition stage, there were four petitioners. The special leave petition

so far as petitioner Goyal Nath is concerned was dismissed by an order

dated 5.8.2002.

Accusations which led to the trial of the accused appellants in a

nutshell is as follows:

On 5.10.1999, a secret telephonic message was recorded by Sunder

Lal, A.S.P. (PW-11) that charas was being transported in a Maruti

Esteem blue car bearing No.CHO-IE-2764 which was coming towards

Oachghat. The information was reduced by him into writing. He gave

directions to the SHO, Police Station, Solan to send the information

to the Superintendent of Police and thereafter proceeded towards the

spot where the car was expected to come. On reaching the spot, he

formed a raiding party consisting of Jainarain (PW-1) and Ashwani Kumar

Gupta (PW-2) and the car was stopped by the raiding party. Accused,

Manjit Singh was driving the car and the remaining accused persons were

sitting therein. In the presence of witnesses, Jainarain (PW-1) gave an

option to the accused persons as to whether they wanted to be searched

by a Magistrate or by him. Accused appellants consented for the search

by Jainarain (PW-1). On personal search of the accused persons nothing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

incriminating was found on their person. When the car was searched, a

black coloured bag was found which contained a steel doloo kept in a

plastic bag. The said doloo contained 820 grams of charas. After

separating two samples of 25 grams each the remaining charas were

separately sealed and samples were sent to the Officer Incharge, Police

Station, Solan for registration of a case. On the basis of the

information FIR was recorded at the Police Station. The car along with

the documents and the key were also seized. The sealed parcels of the

case property were handed over to the SHO (PW-9) who re-sealed them.

The samples were analysed by the Chemical Examiner who filed a report

vide Ext.PW-10/A with the finding that the samples were that of charas.

On being satisfied about commission of offence under Section 20 of the

Act, a charge sheet was submitted. After framing of charge, the accused

persons faced trial.

To substantiate its accusation, prosecution examined 11

witnesses. The accused appellants pleaded innocence. On consideration

of the evidence on record, the accused persons were convicted and

sentenced as aforesaid. The appeals preferred by the accused

appellants were dismissed by the impugned judgment.

Mrs. Subhadra Chaturvedi, learned amicus curiae appearing for the

accused appellants submitted that the prosecution was totally without

basis and there were several

irretrievable infractions of statutory provisions which render the

trial vitiated and consequently the judgments are unsustainable.

Firstly, it was submitted that the mandatory requirements of

Sections 42 and 50 were not complied with. Further, the officials had

tampered with the samples as the weight of the sample was less than

what was indicated.

Elaborating the different pleas, it was submitted that there was

no material to show that the information which was required to be

transmitted to the superior authority was so done. Further, the finding

that there was no requirement to comply with the requirement of Section

50 when a vehicle has been searched is not correct. When accused Goyal

Nath whose SLP has been dismissed, admitted that the seized charas

belonged to him, other accused appellants should not have been

convicted. There was no material to prove that there was any conscious

possession of the contraband articles.

In case of accused-appellant Manjit Singh it was additionally

submitted that he was only the driver of the vehicle and was not

supposed to know what the other occupants were bringing.

In response, it was submitted by learned Additional Advocate

General appearing for the State of Himachal Pradesh that all the points

presently urged were considered by the Trial Court and the High Court,

and after detailed analysis of the legal and factual position have been

rightly rejected.

The first aspect which needs to be considered is whether there

was any non-compliance of Sections 42 and 50 of the Act as pleaded. So

far as these two provisions are concerned, they read as follows:

"Section 42: Power of entry, search, seizure and

arrest without warrant or authorization:

(1) Any such officer (being an officer superior in

rank to a peon, sepoy or constable) of the

departments of central excise, narcotics, customs,

revenue intelligence or any other department of the

Central Government including para-military forces or

armed forces as is empowered in this behalf by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

general or special order by the Central Government,

or any such officer (being an officer superior in

rank to a peon, sepoy or constable)of the revenue,

drugs control, excise, police or any other

department of a State Government as is empowered in

this behalf by general or special order of the State

Government, if he has reason to believe from persons

knowledge or information given by any person and

taken down in writing that any narcotic drug, or

psychotropic substance, or controlled substance in

respect of which an offence punishable under this

Act has been committed or any document or other

article which may furnish evidence of the commission

of such offence or any illegally acquired property

or any document or other article which may furnish

evidence of holding any illegally acquired property

which is liable for seizure or freezing or

forfeiture under Chapter VA of this Act is kept or

concealed in any building, conveyance or enclosed

place, may between sunrise and sunset,-

(a) enter into and search any such building,

conveyance or place;

(b) in case of resistance, break open any

door and remove any obstacle to such entry;

(c) seize such drug or substance and all

materials used in the manufacture thereof and any

other article and any animal or conveyance which he

has reason to believe to be liable to confiscation

under this Act and any document or other article

which he has reason to believe may furnish evidence

of the commission of any offence punishable under

this Act or furnish evidence of holding any

illegally acquired property which is liable for

seizure or freezing or forfeiture under Chapter VA

of this Act; and

(d) detain and search, and, if he thinks

proper, arrest any person whom he has reason to

believe to have committed any offence punishable

under this Act.

Provided that if such officer has reason to

believe that a search warrant or authorization

cannot be obtained without affording opportunity for

the concealment or evidence or facility for the

escape of an offender, he may enter and search such

building, conveyance or enclosed place at any time

between sunset and sunrise after recording the

grounds of his belief.

(2) Where an officer takes down any information in

writing under sub-section (1) or records grounds for

his belief under the proviso thereto, he shall

within seventy-two hours send a copy thereof to his

immediate official superior.

Section 50: Conditions under which search of persons

shall be conducted-

(1) When any officer duly authorized under Section

42 is about to search any person under the

provisions of Section 41, section 42 or section 43,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

he shall, if such person so requires, take such

person without unnecessary delay to the nearest

Gazetted Officer of any of the departments mentioned

in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may

detain the person until he can bring him before the

Gazetted Officer or the Magistrate referred to in

sub-section (1).

(3) The Gazetted Officer or the Magistrate before

whom any such person is brought shall, if he sees no

reasonable ground for search, forthwith discharge

the person but otherwise shall direct that search be

made.

(4) No female shall be searched by anyone

excepting a female.

(5) When an officer duly authorized under section

42 has reason to believe that it is not possible to

take the person to be searched to the nearest

Gazetted Officer or Magistrate without the

possibility of the person to be searched parting

with possession of any narcotic drug or psychotropic

substance, or controlled substance or article or

document, he may, instead of taking such person to

the nearest Gazetted Officer or Magistrate, proceed

to search the person as provided under section 100

of the Code of Criminal Procedure, 1973(2 of 1974).

(6) After a search is conducted under sub-section

(5), the officer shall record the reasons for such

belief which necessitated such search and within

seventy-two hours send a copy thereof to his

immediate official superior."

The evidence of the witnesses i.e. PWs. 5, 8 and 11 throw

considerable light on this controversy. In fact the original register

which recorded the transmission of the information to the

Superintendent of Police was perused by the High Court. On 27.12.2000

after perusing the register, the High Court noted that there was no

over-writing or cutting in respect of the relevant entries. Constable

(PW-8) has stated that he had taken a copy of the daily diary regarding

receipt of information about transportation of charas (Ext.PW-5/A) and

handed over to the reader of the Superintendent of Police at 10.40 a.m.

the relevant document. PW-5 has corroborated this statement of PW-8

about delivery of the copy of information and he has stated that the

same was placed before the concerned Superintendent of Police. In other

words, the materials clearly establish that the information was sent

without delay to the immediate superior officer of PW-11 i.e.

Superintendent of Police. That being the position, contention regarding

non-compliance of provisions of Section 42 is clearly without

substance.

Now comes the question whether there was non-compliance of

Section 50 of the Act.

A bare reading of Section 50 shows that it only applies in case

of personal search of a person. It does not extend to search of a

vehicle or a container or a bag, or premises.(See Kalema Tumba v. State

of Maharashtra and Anr. (JT 1999 (8) SC 293), The State of Punjab v.

Baldev Singh (JT 1999 (4) SC 595), Gurbax Singh v. State of Haryana

(2001(3) SCC 28). The language of Section 50 is implicitly clear that

the search has to be in relation to a person as contrasted to search of

premises, vehicles or articles. This position was settled beyond doubt

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

by the Constitution Bench in Baldev Singh's case (supra). Above being

the position, the contention regarding non-compliance of Section 50 of

the Act is also without any substance.

Coming to the plea that there was reduction in weight of the

samples sent for analysis and there was tampering, it has to be noted

that this aspect has also been considered by the Trial Court which has

recorded the reasons for rejecting the same. It has been noted that

the seals were intact and there was no tampering. The view has been

endorsed by the High Court. On considering the reasoning indicated

that there was very minimal and almost ignorable variation in weight,

we find no reason to interfere with the findings.

The other plea which was emphasized was the alleged statement of

accused Goyal Nath that he alone was in possession of the contraband

bags. The plea centers round a statement of search witness PW-1, who

stated that Goyal Nath told him that contraband articles belonged to

him. The statement was made totally out of context and no credence can

at all be attached to the statement. The accused Goyal Nath in his

examination under Section 313 of the Code of Criminal Procedure, 1973

(in short the 'Code') did not state that he was alone in possession of

the contraband articles. On the contrary, he stated that he did not

know anything about the alleged seizure.

Whether there was conscious possession has to be determined with

reference to the factual backdrop. The facts which can be culled out

from the evidence on record is that all the accused persons were

traveling in a vehicle and as noted by the Trial Court they were known

to each other and it has not been explained or shown as to how they

travelled together from the same destination in a vehicle which was not

a public vehicle.

Section 20(b) makes possession of contraband articles an

offence. Section 20 appears in chapter IV of the Act which relates to

offence for possession of such articles. It is submitted that in order

to make the possession illicit, there must be a conscious possession.

It is highlighted that unless the possession was coupled with

requisite mental element, i.e. conscious possession and not mere

custody without awareness of the nature of such possession, Section 20

is not attracted.

The expression 'possession' is a polymorphous term which assumes

different colours in different contexts. It may carry different

meanings in contextually different backgrounds. It is impossible, as

was observed in Superintendent & Remembrancer of Legal Affairs, West

Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a

completely logical and precise definition of "possession" uniformally

applicable to all situations in the context of all statutes.

The word 'conscious' means awareness about a particular fact. It

is a state of mind which is deliberate or intended.

As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756)

possession in a given case need not be physical possession but can be

constructive, having power and control over the article in case in

question, while the person whom physical possession is given holds it

subject to that power or control.

The word 'possession' means the legal right to possession (See

Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it

was observed that where a person keeps his fire arm in his mother's

flat which is safer than his own home, he must be considered to be in

possession of the same. (See Sullivan v. Earl of Caithness (1976 (1)

All ER 844 (QBD).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

Once possession is established the person who claims that it was

not a conscious possession has to establish it, because how he came to

be in possession is within his special knowledge. Section 35 of the Act

gives a statutory recognition of this position because of presumption

available in law. Similar is the position in terms of Section 54 where

also presumption is available to be drawn from possession of illicit

articles.

In the factual scenario of the present case not only possession

but conscious possession has been established. It has not been shown by

the accused-appellants that the possession was not conscious in the

logical background of Sections 35 and 54 of the Act.

In fact the evidence clearly establishes that they knew about

transportation of charas, and each had a role in the transportation and

possession with conscious knowledge of what they are doing. The

accused-appellant Manjit Singh does not stand on a different footing

merely because he was a driver of the vehicle. The logic applicable to

other accused-appellants also applies to Manjit Singh.

Therefore, the presumption available by application of logic

flowing from Sections 35 and 54 of the Act clearly applies to the facts

of the present case. The judgments of the Trial Court and the High

Court suffer from no infirmity to warrant interference. The appeals

deserve dismissal, which we direct.