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CASE NO.:

Appeal (crl.) 452 of 2003

PETITIONER:

Megh Singh

RESPONDENT:

State of Punjab

DATE OF JUDGMENT: 15/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

Appeal preferred by appellant-Megh Singh questioning his

conviction under Section 15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short the 'Act') was dismissed by learned

Single Judge of the Punjab and Haryana High Court by the impugned

judgment. He has questioned the legality thereof in the present appeal.

The compass of controversy as unfolded during trial by the

prosecution is as follows:

On 22.2.1993, police party headed by SI Chanan Singh, In-charge of

Police Station Dharamgarh (PW 1/B) was going on kacha road towards drain

from village Dharamgarh in connection with patrol duty and when they

reached near brick kiln, Santa Singh son of Bachan Singh met them and

joined in the police party. When the police party was little short of

the drain, they saw three persons sitting on gunny bags. Two of them

fled from the spot and the third one, accused-appellant Megh Singh was

apprehended. He disclosed the names of the persons who had run away to

be Baldev Singh and Pillu. Twenty-five bags containing poppy husk were

found at the spot. Two samples of 250 gms. were taken from each bag and

after taking the samples, weight of bags was found to be 36 kgs. 500

gms. each. All the fifty samples and 25 bags of poppy husk were sealed

with seal 'CS' which after use was handed over to HS Mithu Singh (PW-2).

The case property was taken into possession vide recovery memo Exhibit

PC attested by witnesses including Santa Singh. On the basis of ruqa

Exhibit PE. F.I.R. Exhibit PE/1 was registered. Baldev Singh who had run

away from the spot was arrested on 27.2.1993 and Pillu Singh was

arrested on 10.3.1993. Case property was produced before Baldev Singh,

SHO of Police Station, Sunam (PW-3) who verified the investigation and

sealed the same with seal 'BS'. On chemical examination, the samples

were found to be of poppy husk vide report Exhibit PK.

Trial Court after considering the evidence on record held that the

accusations against appellant-Megh Singh have been found established;

accordingly convicted him under Section 15 of the Act and sentenced him

to undergo RI for 10 years and to pay a fine of Rs.1 lakh with default

condition of further RI for 1 year. Appellant challenged the conviction

and sentence before the High Court. Primary stand was that accused had

been arrested on 19.2.1993 and telegram had been sent in that regard to

the police officials. It was contended that when benefit of doubt has

been given to the other co-accused persons, there was no basis for

convicting the accused-appellant. There was no material to show any

conscious possession which is sine qua non for conviction under Section

15 of the Act. In any event, requirements of Section 50 were not

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complied with. High Court discarded the plea regarding arrest of Megh

Singh on 19.2.1993 on the ground that the evidence on record establishes

that the application/telegram was received on 24.2.1993 and merely

because an earlier date was indicated, it cannot be said that the

accused was really arrested on 19.2.1993. Coming to the plea of

conscious possession it was held that the prosecution had produced ample

evidence that accused was in physical possession and in terms of Section

54 of the Act conscious possession was presumed unless proved to the

contrary. Accused has failed to do so. Therefore, conscious possession

was established. Accordingly the appeal filed by the accused was

dismissed. It was further held that Section 50 has no application

because there was no personal search of the applicant. Consequentially

conviction and sentence were upheld.

Learned counsel appearing for the accused-appellant submitted that

the facts of the case greatly resemblance with that of Avtar Singh and

Ors. v. State of Punjab (2002 (7) SCC 419). Since conscious possession

has not been proved, the conviction of the accused-appellant cannot be

stand on a different footing from those co-accused who have been

acquitted. Non-compliance with requirements of Section 50 of the Act

vitiates the conviction.

In response, learned counsel for the respondent-State submitted

that conscious possession has been established and by application of

logic of Section 54 of the Act when physical possession is established,

there is presumption of conscious possession. Merely because co-accused

persons have been acquitted that cannot be a factor to hold the accused-

appellant innocent. It is submitted that since there was no personal

search, Section 50 of the Act has no application.

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 the accused was sitting atop gunny

bags containing the contraband articles.

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

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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).

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. This position was highlighted in Madan Lal and Anr. v. State

of Himachal Pradesh (2003 (6) SCALE 483).

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-appellant that the possession was not conscious in the

logical background of Sections 35 and 54 of the Act.

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 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.

The decision in Avtar Singh and Ors. v. State of Punjab (2002 (7)

SCC 419) was rendered in a different factual background. In that case

the articles were being carried in a truck. There were several persons

in the truck. It had not been established by evidence that any one of

them had any conscious possession. That also was not the only factor

taken note of. While the accused was examined under Section 313 of the

Code of Criminal Procedure, 1973 (for short 'the Code'), the essence of

accusations was not brought to his notice, more particularly with

possession aspect. It was also noticed that the possibility of the

accused persons being labourers of the truck was not ruled by the

evidence. Since the decision was rendered on consideration of several

peculiar factual aspects specially noticed in that case, it is of no

assistance to the accused also.

Circumstantial flexibility, one additional or different fact may

make a world of difference between conclusions in two cases or between

two accused in the same case. Each case depends on its own facts and a

close similarity between one case and another is not enough because a

single significant detail may alter the entire aspect. It is more

pronounced in criminal cases where the backbone of adjudication is fact

based.

We find no substance in this appeal, which deserves dismissal, and

we so direct.