Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1393 OF 2010

Mohan Lal ... Appellant

Versus

State of Rajasthan ...Respondent

J U D G M E N T

Dipak Misra, J.

Calling in question the legal pregnability of the

judgment and order dated 16.7.09 passed by the learned

Single Judge of the High Court of Judicature of Rajasthan at

Jodhpur whereby the learned Single Judge has affirmed the

conviction and sentence recorded by the learned Additional

Sessions Judge, Jodhpur in Sessions Case No. 9 of 1986

convicting the appellant under Section 18 of the Narcotic

Drugs and Psychotropic Substances Act 1985 (for short, ‘the

NDPS Act’) and sentencing him to suffer rigorous

Page 2 2

imprisonment for 10 years and pay a fine of Rs. 1 lakh, in

default, to suffer one year simple imprisonment and also for

offence punishable under Sections 457 and 380 of the Indian

Penal Code (IPC) and imposing separate sentences for the

said offences with a stipulation that all the sentences would

run concurrently.

2.The relevant facts giving rise to the prosecution are

that on 13.11.1985, at 9.30 a.m., Bhanwarlal, PW-8, posted

in the Court of the Magistrate, Osian, lodged an FIR, exhibit

P-3, at Police Station, Osian informing that when he went to

the Court to meet the night chowkidar, he was absent and it

was found by him that locks of the main gate of the

malkhana were broken and the goods were scattered. An

information was given at the concerned police station, but

as the details of the stolen articles could only be provided by

the Criminal Clerk after he came from the Diwali holidays, an

FIR was lodged for an offence under Section 457 IPC. After

the courts reopened, the Presiding Officer, Ummed Singh,

PW-6, on being informed, visited the premises, got malkhana

articles verified and got an inventory prepared by Narain

Singh, Criminal Clerk, in-charge of Malkhana, PW-4, on

Page 3 3

16.11.1985, and it was found that 10 kgs. 420 gms opium

and some other articles were stolen from several packets. In

course of investigation, the accused Mohan Lal was arrested

for the offence punishable under Sections 457 and 380 IPC.

While in custody, it was informed by him that he had broke

open the lock of the malkhana of the Court and stolen the

opium and kept it in a white bag and concealed it in a pit

dug by him underneath a small bridge situate between

Gupal Sariya and Madiyai. His disclosure statement has

been brought on record as Exhibit P-14A. The accused-

appellant led to discovery in presence of independent

witnesses. The bag and cloth were taken out by the accused

digging the pit and the bag contained 10 kgs and 200 gms

of opium as is reflected from seizure memo, Exhibit P-6. 200

gms of opium was packed separately, sealed and sent for

FSL examination. The remaining substance and other items

were separately sealed. After receiving the FSL report and

completing the investigation, chargesheet under Section 18

of the NDPS act and Sections 457 and 380 of the IPC was

filed before the appropriate Court and eventually the matter

travelled to the Court of Session. The accused pleaded not

Page 4 4

guilty and claimed to be tried.

3.The prosecution, in order to substantiate the charges,

examined 14 witnesses. The main witnesses are Ummed

Singh, PW-6, the concerned, Magistrate, Narain Singh, PW-4,

the Criminal Clerk, in-charge of Malkhana, ASI, Achlu Ram,

PW-13, ASI Hanuman Singh, PW-3, Koja Ram, PW-10, Gulab

Singh, PW-14, and Su-Inspector-cum-SHO, Bheem Singh, PW-

12 are witnesses to the recovery. The FSL report was

exhibited as Exhibit P-14. The defence chose not to

examine any witness.

4.The learned trial Judge, on the basis of the evidence

brought on record, found the accused guilty of the charges

and accordingly convicted him, as has been stated

hereinbefore. In appeal, it was contended that incident, as

per the prosecution, had occurred between 12

th

/13

th

November, 1985 on which date the NDPS Act was not in

force, for it came into force only on 14.11.1985 and hence,

the offence was punishable under the Opium Act, 1878, (for

short ‘the Opium Act’); that the alleged recovery was on

16.1.1985 while the appellant was in custody in connection

with FIR No. 95 of 1986 and not in custody in connection

Page 5 5

with this case i.e. FIR No. 96 of 1985; that recovery of

disclosure at the instance of the accused-appellant had not

been proven and that he was never in possession of the said

articles, and that there has been total non-compliance of

Section 42 and 57 of the NDPS Act and, therefore, the

conviction was vitiated in law. The High Court repelled all

the submissions and affirmed the conviction and sentence

as recorded by the learned trial Judge.

5.We have heard Ms. Aishwarya Bhati, learned counsel

for the appellant and Mr. Shiv Mangal Sharma, learned

Additional Advocate General for the State of Rajasthan.

6.First, we shall deal with the issue of possession. The

principal submission of Ms. Bhati, learned counsel for the

appellant is that the appellant cannot be convicted and

punished under the NDPS Act when admittedly the theft of

contraband substance was prior to coming into force of the

NDPS Act, for the FIR was lodged prior to coming into force

of the NDPS Act. Learned counsel would submit that offence

of possession of contraband substance also commenced

prior to coming into force of NDPS Act as the FIR would

clearly reveal that the theft was committed on the

Page 6 6

intervening night of 12

th

/13

th

November, 1985, whereas the

NDPS Act came into force on 14.11.1985. Learned counsel

would submit that the recovery of opium was done on

16.1.1986 pursuant to the disclosure statement made by the

accused-appellant who was already under arrest in a

different matter and under such circumstances, the

appellant could not have been convicted under Section 18 of

the NDPS Act, but should have been convicted under Section

9 of the Opium Act. Elaborating the said submission, the

learned counsel has contended that the offence of

possession of contraband substance was punishable under

both the laws but there is a huge difference in the sentence

prescribed. Under Section 9 of the Opium Act, the sentence

was extendable to one year whereas under Section 18 of the

NDPS Act, the prescribed punishment is minimum 10 years

apart from imposition of huge fine. Learned counsel would

submit that it is the settled principle of criminal

jurisprudence that the accused cannot be subject to an

offence under a new Act which was not in force on the date

of theft and the possession of contraband articles, as a

matter of fact, had taken place prior to coming into force of

Page 7 7

the NDPS Act. She has commended us to the decision in

Harjit Singh v. State of Punjab

1

. Learned counsel would

also contend that there can be rationalization of structure of

punishment, which is an ameliorative provision, for it

reduces the punishment and the same can be made

applicable to category of accused persons. In that regard,

she has drawn inspiration from Rattan Lal v. State of

Punjab

2

, T. Barai v. Henry Ah Hoe

3

, Basheer v. State of

Kerala

4

and Pratap Singh v. State of Jharkhand

5

.

Pyramiding the said facet, it is urged by Ms. Bhati that in the

instant case, the sentence being higher for the offence of

possession under the NDPS Act, such a provision cannot be

made retrospectively applicable to him. To appreciate the

said submission, it is appropriate to refer to Section 9 of the

Opium Act. It reads as follows:-

“9. Penalty for illegal cultivation poppy, etc.

Any person who, in contravention of this Act, or of

rules made and notified under section 5 or Section

8,-

(a) possesses opium, or

1

(2011) 4 SCC 441

2

AIR 1965 SC 444

3

(1983) 1 SCC 177

4

(2004) 3 SCC 609

5

(2005) 3 SCC 551

Page 8 8

(b) transports opium, or

(c) imports or exports opium, or

(d) sells opium, or

(e) omits to warehouse opium, or removes or

does any act in respect of warehoused opium,

And any person who otherwise contravenes any

such rule, shall, on conviction before a Magistrate,

be punished for each such offence with

imprisonment for a term which may extend to one

year, or with fine which may extend to one

thousand rupees, or with both;

And, where a fine is imposed, the convicting

Magistrate shall direct the offender to be

imprisoned in default of payment of the fine for a

term which may extend to six months, and such

imprisonment shall be in excess of any other

imprisonment to which he may have been

sentenced.”

7.On a perusal of the aforesaid provision, the possession

of opium is an offence and the sentence is imprisonment for

a term which may extend to one year or with fine which may

extend to Rs.1,000/- or both. Section 18 of the NDPS Act

provides for punishment for contravention in relation to

opium poppy and opium. The provision as it stood at the

relevant time read as follows:

“18. Punishment for contravention in

relation to opium poppy and opium. -

Whoever, in contravention of any provision of this

Act, or any rule or order made or condition of

licence granted thereunder cultivates the opium

poppy or produces, manufactures, possesses,

Page 9 9

sells, purchases, transports, imports inter-State,

exports inter-State or uses opium shall be

punishable with rigorous imprisonment for a term

which shall not be less than ten years but which

may extend to twenty-years and shall also be

liable to fine which shall not be less than one lakh

rupees but which may extend to two lakh rupees :

Provided that the Court may, for reasons to

be recorded in the judgment, impose a fine

exceeding two lakh rupees.”

8.When one conceives of possession, it appears in the

strict sense that the concept of possession is basically

connected to “actus of physical control and custody”.

Attributing this meaning in the strict sense would be

understanding the factum of possession in a narrow sense.

With the passage of time there has been a gradual widening

of the concept and the quintessential meaning of the word

possession. The classical theory of English law on the term

“possession” is fundamentally dominated by Savigny-ian

“corpus” and “animus” doctrine. Distinction has also been

made in “possession in fact” and “possession in law” and

sometimes between “corporeal possession” and “possession

of right” which is called “incorporeal possession”. Thus,

there is a degree of flexibility in the use of the said term and

that is why the word possession can be usefully defined and

Page 10 10

understood with reference to the contextual purpose for the

said expression. The word possession may have one

meaning in one connection and another meaning in another.

9.The term “possession” consists of two elements. First,

it refers to the corpus or the physical control and the

second, it refers to the animus or intent which has reference

to exercise of the said control. One of the definitions of

possession given in Black’s Law dictionary is as follows:

“Having control over a thing with the intent to

have and to exercise such control. Oswald v.

Weigel

6

. The detention and control or the manual

or ideal custody, of anything which may be the

subject of property, for one’s use and enjoyment,

either as owner or as the proprietor of a qualified

right in it, and either held personally or by another

who exercises it in one’s place and name. Act or

state of possessing. That condition of facts under

which one can exercise his power over a corporeal

thing at his pleasure to the exclusion of all other

persons. The law, in general, recognizes two

kinds of possession: actual possession and

constructive possession. A person who knowingly

has direct physical control over a thing, at a given

time, is then in actual possession of it. A person

who, although not in actual possession, knowingly

has both the power and the intention at given

time to exercise dominion or control over a thing,

either directly or through another person or

persons, is then in constructive possession of it.

The law recognizes also that possession may be

sole or joint. If one person alone has actual or

constructive possession of a thing, possession is

6

219 Kan. 616, 549 p.2d 568, 569

Page 11 11

sole. If two or more persons share actual or

constructive possession of a thing, possession is

joint.”

In the said dictionary, the term “possess” in the context

of narcotic drug law means:-

“Term “possess.” Under narcotic drug laws, means

actual control, care and management of the drug.

Collini v. State

7

. Defendant ‘possesses’ controlled

substance when defendant knows of substance’s

presence, substance is immediately accessible,

and defendant exercises “dominion or control”

over substance. State v. Hornaday

8

.”

And again

“Possession as necessary for conviction of offense

of possession of controlled substances with intent

to distribute may be constructive as well as

actual, U.S. v. Craig

9

; as well as joint or exclusive,

Garvey v. State

10

. The defendants must have had

dominion and control over the contraband with

knowledge of its presence and character. U.S, v.

Morando-Alvarez

11

.

Possession, as an element of offense of stolen

goods, is not limited to actual manual control

upon or about the person, but extends to things

under one’s power and dominion. McConnell v.

State

12

.

Possession as used in indictment charging

possession of stolen mail may mean actual

possession or constructive possession. U.S. v.

7

Tex. Cr. App. 487 S.W. 2d 132, 135

8

105 Wash. 2d 120, 713 p.2d 71, 74

9

C.A. Tenn, 522 F.2d 29, 31

10

176 Ga. App, 268, 335 S.E.2d 640, 647

11

C.A. Ariz, 520 F.2d 882, 884

12

48 Ala.App. 523, 266 So.2d 328, 333

Page 12 12

Ellison

13

.

To constitute “possession” of a concealable

weapon under statue proscribing possession of a

concealable weapon by a felon, it is sufficient that

defendant have constructive possession and

immediate access to the weapon. State v.

Kelley

14

.”

10.In Stroud’s dictionary, the term possession has been

defined as follows:

“”Possession” (Drugs (Prevention of Misuse) Act 1964

(c. 64), s.1 (1)). A person does not lose “possession” of

an article which is mislaid or thought erroneously to

have been destroyed or disposed of, if, in fact, it

remains in his care and control (R. v. Buswell

15

).

11.Dr. Harris, in his essay titled “The Concept of

Possession in English Law

16

” while discussing the various

rules relating to possession has stated that “possession” is a

functional and relative concept, which gives the Judges

some discretion in applying abstract rule to a concrete set of

facts. The learned author has suggested certain factors

which have been held to be relevant to conclude whether a

person has acquired possession for the purposes of a

particular rule of law. Some of the factors enlisted by him

are; (a) degree of physical control exercised by person over

13

C.A. Cal., 469 F.2d 413, 415

14

12 Or.APP. 496 507 P.2d 837, 837

15

[1972] 1 W.L.R. 64

16

Published in “Oxford Essays on Jurisprudence” (Edited by A G Guest, First Series, Clarendon Press,

Oxford.

Page 13 13

a thing, (b) knowledge of the person claiming possessory

rights over a thing, about the attributes and qualities of the

thing, (c) the persons’ intention in regard to the thing, that

is, ‘animus possessionis’ and ‘animus domini’, (d) possession

of land on which the thing is claimed is lying; also the

relevant intention of the occupier of a premises on which the

thing is lying thereon to exclude others from enjoying the

land and anything which happens to be lying there; and

Judges’ concept of the social purpose of the particular rule

relied upon by the plaintiff. The learned author has further

proceeded to state that quite naturally the policies behind

different possessory rules will vary and it would justify the

courts giving varying weight to different factors relevant to

possession according to the particular rule in question.

According to Harris, the Judges have at the back of their

mind a perfect pattern in which the possessor has complete,

exclusive and unchallenged physical control over the

subject; full knowledge of its existence; attributes and

location, and a manifest intention to act as its owner and

exclude all others from it. As a further statement he

elucidates that courts realise that justice and expediency

Page 14 14

compel constant modification of the ideal pattern. The

person claiming possessory rights over a thing may have a

very limited degree of physical control over the object or he

may have no intention in regard to an object of whose

existence he is unaware of, though he exercises control over

the same or he may have clear intention to exclude other

people from the object, though he has no physical control

over the same. In all this variegated situation, states Harris,

the person concerned may still be conferred the possessory

rights. The purpose of referring to the aforesaid principles

and passages is that over the years, it has been seen that

courts have refrained from adopting a doctrinaire approach

towards defining possession. A functional and flexible

approach in defining and understanding the possession as a

concept is acceptable and thereby emphasis has been laid

on different possessory rights according to the commands

and justice of the social policy. Thus, the word “possession”

in the context of any enactment would depend upon the

object and purpose of the enactment and an appropriate

meaning has to be assigned to the word to effectuate the

said object.

Page 15 15

12.Coming to the context of Section 18 of the NDPS

Act, it would have a reference to the concept of conscious

possession. The legislature while enacting the said law was

absolutely aware of the said element and that the word

“possession” refers to a mental state as is noticeable from

the language employed in Section 35 of the NDPS Act. The

said provision reads as follows:-

“35. Presumption of culpable mental state. –

(1) In any prosecution for an offence under this

Act which requires a culpable mental state of the

accused, the Court shall presume the existence of

such mental state but it shall be a defence for the

accused to prove the fact that he had no such

mental state with respect to the act charged as an

offence in that prosecution.

Explanation. – In this section “culpable mental

state” includes intention, motive, knowledge, of a

fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to

be proved only when the Court believes it to exist

beyond a reasonable doubt and not merely when

its existence is established by a preponderance of

probability.”

On a perusal of the aforesaid provision, it is plain as

day that it includes knowledge of a fact. That apart, Section

35 raises a presumption as to knowledge and culpable

mental state from the possession of illicit articles. The

Page 16 16

expression “possess or possessed” is often used in

connection with statutory offences of being in possession of

prohibited drugs and contraband substances. Conscious or

mental state of possession is necessary and that is the

reason for enacting Section 35 of the NDPS Act.

13.In Noor Aga v. State of Punjab and Anr.

17

, the Court

noted Section 35 of the NDPS Act which provides for

presumption of culpable mental state and further noted that

it also provides that the accused may prove that he had no

such mental state with respect to the act charged as an

offence under the prosecution. The Court also referred to

Section 54 of the NDPS Act which places the burden to prove

on the accused as regards possession of the contraband

articles on account of the same satisfactorily. Dealing with

the constitutional validity of Section 35 and 54 of the NDPS

Act, the Court ruled thus:-

“The provisions of Section 35 of the Act as also

Section 54 thereof, in view of the decisions of this

Court, therefore, cannot be said to be ex facie

unconstitutional. We would, however, keeping in

view the principles noticed hereinbefore, examine

the effect thereof vis-à-vis the question as to

whether the prosecution has been able to

discharge its burden hereinafter.”

17

(2008) 16 SCC 417

Page 17 17

And thereafter proceeded to state that:-

“58. Sections 35 and 54 of the Act, no doubt, raise

presumptions with regard to the culpable mental

state on the part of the accused as also place the

burden of proof in this behalf on the accused; but

a bare perusal of the said provision would clearly

show that presumption would operate in the trial

of the accused only in the event the

circumstances contained therein are fully

satisfied. An initial burden exists upon the

prosecution and only when it stands satisfied,

would the legal burden shift. Even then, the

standard of proof required for the accused to

prove his innocence is not as high as that of the

prosecution. Whereas the standard of proof

required to prove the guilt of the accused on the

prosecution is “beyond all reasonable doubt” but

it is “preponderance of probability” on the

accused. If the prosecution fails to prove the

foundational facts so as to attract the rigours of

Section 35 of the Act, the actus reus which is

possession of contraband by the accused cannot

be said to have been established.

59. With a view to bring within its purview the

requirements of Section 54 of the Act, element of

possession of the contraband was essential so as

to shift the burden on the accused. The provisions

being exceptions to the general rule, the

generality thereof would continue to be operative,

namely, the element of possession will have to be

proved beyond reasonable doubt.”

14.In Bhola Singh v. State of Punjab

18

, the Court, after

referring to the pronouncement in Noor Aga (supra),

18

(2011) 11 SCC 653

Page 18 18

concurred with the observation that only after the

prosecution has discharged the initial burden to prove the

foundational facts, then only Section 35 would come into

play. While dislodging the conviction, the Court stated:-

“ …. it is apparent that the initial burden to prove

that the appellant had the knowledge that the

vehicle he owned was being used for transporting

narcotics still lay on the prosecution, as would be

clear from the word “knowingly”, and it was only

after the evidence proved beyond reasonable

doubt that he had the knowledge would the

presumption under Section 35 arise. Section 35

also presupposes that the culpable mental state

of an accused has to be proved as a fact beyond

reasonable doubt and not merely when its

existence is established by a preponderance of

probabilities. We are of the opinion that in the

absence of any evidence with regard to the

mental state of the appellant no presumption

under Section 35 can be drawn. The only evidence

which the prosecution seeks to rely on is the

appellant’s conduct in giving his residential

address in Rajasthan although he was a resident

of Fatehabad in Haryana while registering the

offending truck cannot by any stretch of

imagination fasten him with the knowledge of its

misuse by the driver and others.”

15.Having noted the approach in the aforesaid two cases,

we may take note of the decision in Dharampal Singh v.

State of Punja

19

, when the Court was referring to the

expression “possession” in the context of Section 18 of the

19

(2010) 9 SCC 608

Page 19 19

NDPS Act. In the said case opium was found in the dicky of

the car when the appellant was driving himself and the

contention was canvassed that the said act would not

establish conscious possession. In support of the said

submission, reliance was placed on Avtar Singh v. State

of Punjab

20

and Sorabkhan Gandhkhan Pathan v. State

of Gujarat

21

. The Court, repelling the argument, opined

thus:-

“12. We do not find any substance in this

submission of the learned counsel. The appellant

Dharampal Singh was found driving the car

whereas appellant Major Singh was travelling with

him and from the dicky of the car 65 kg of opium

was recovered. The vehicle driven by the

appellant Dharampal Singh and occupied by the

appellant Major Singh is not a public transport

vehicle. It is trite that to bring the offence within

the mischief of Section 18 of the Act possession

has to be conscious possession. The initial burden

of proof of possession lies on the prosecution and

once it is discharged legal burden would shift on

the accused. Standard of proof expected from the

prosecution is to prove possession beyond all

reasonable doubt but what is required to prove

innocence by the accused would be

preponderance of probability. Once the plea of the

accused is found probable, discharge of initial

burden by the prosecution will not nail him with

offence. Offences under the Act being more

serious in nature higher degree of proof is

required to convict an accused.

20

(2002) 7 SCC 419

21

(2004) 13 SCC 608

Page 20 20

13. It needs no emphasis that the expression

“possession” is not capable of precise and

completely logical definition of universal

application in the context of all the statutes.

“Possession” is a polymorphous word and cannot

be uniformly applied, it assumes different colour

in different context. In the context of Section 18 of

the Act once possession is established the

accused, who claims that it was not a conscious

possession has to establish it because it is within

his special knowledge.

xxx xxx xxx xxx

15. From a plain reading of the aforesaid it is

evident that it creates a legal fiction and

presumes the person in possession of illicit

articles to have committed the offence in case he

fails to account for the possession satisfactorily.

Possession is a mental state and Section 35 of the

Act gives statutory recognition to culpable mental

state. It includes knowledge of fact. The

possession, therefore, has to be understood in the

context thereof and when tested on this anvil, we

find that the appellants have not been able to

satisfactorily account for the possession of opium.

16. Once possession is established the court can

presume that the accused had culpable mental

state and have committed the offence. In

somewhat similar facts this Court had the

occasion to consider this question in Madan Lal v.

State of H.P.

22

, wherein it has been held as follows:

(SCC p. 472, paras 26-27)

“26. 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

22

(2003) 7 SCC 465

Page 21 21

within his special knowledge. Section 35 of

the Act gives a statutory recognition of this

position because of the 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.

27. 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.””

16.From the aforesaid exposition of law it is quite vivid

that the term “possession” for the purpose of Section 18 of

the NDPS Act could mean physical possession with animus,

custody or dominion over the prohibited substance with

animus or even exercise of dominion and control as a result

of concealment. The animus and the mental intent which is

the primary and significant element to show and establish

possession. Further, personal knowledge as to the existence

of the “chattel” i.e. the illegal substance at a particular

location or site, at a relevant time and the intention based

upon the knowledge, would constitute the unique

relationship and manifest possession. In such a situation,

presence and existence of possession could be justified, for

Page 22 22

the intention is to exercise right over the substance or the

chattel and to act as the owner to the exclusion of others. In

the case at hand, the appellant, we hold, had the requisite

degree of control when, even if the said narcotic substance

was not within his physical control at that moment. To give

an example, a person can conceal prohibited narcotic

substance in a property and move out thereafter. The said

person because of necessary animus would be in possession

of the said substance even if he is not, at the moment, in

physical control. The situation cannot be viewed differently

when a person conceals and hides the prohibited narcotic

substance in a public space. In the second category of

cases, the person would be in possession because he has

the necessary animus and the intention to retain control and

dominion. As the factual matrix would exposit, the accused-

appellant was in possession of the prohibited or contraband

substance which was an offence when the NDPS Act came

into force. Hence, he remained in possession of the

prohibited substance and as such offence under Section 18

of the NDPS Act is made out. The possessory right would

continue unless there is something to show that he had

Page 23 23

been divested of it. On the contrary, as we find, he led to

discovery of the substance which was within his special

knowledge, and, therefore, there can be no scintilla of doubt

that he was in possession of the contraband article when the

NDPS Act came into force. To clarify the situation, we may

give an example. A person had stored 100 bags of opium

prior to the NDPS Act coming into force and after coming

into force, the recovery of the possessed article takes place.

Certainly, on the date of recovery, he is in possession of the

contraband article and possession itself is an offence. In

such a situation, the accused-appellant cannot take the plea

that he had committed an offence under Section 9 of the

Opium Act and not under Section 18 of the NDPS Act.

17.After dealing with the concept of possession, we think it

apt to address the issue raised by the learned counsel for

the appellant that he could have convicted and sentenced

under the Opium Act, as that was the law in force at the

time of commission of an offence and if he is convicted

under Section 18 of the NDPS Act, it would tantamount to

retrospective operation of law imposing penalty which is

prohibited under Article 20(1) of the Constitution of India.

Page 24 24

Article 20(1) gets attracted only when any penal law

penalises with retrospective effect i.e. when an act was not

an offence when it was committed and additionally the

persons cannot be subjected to penalty greater than that

which might have been inflicted under the law in force at the

time of commission of the offence. The Article prohibits

application of ex post facto law. In Rao Shiv Bahadur

Singh and Anr. v. State of Vindhya Pradesh

23

, while

dealing with the import under Article 20(1) of the

Constitution of India, the Court stated what has been

prohibited under the said Article is the conviction and

sentence in a criminal proceeding under ex post facto law

and not the trial thereof. The Constitution Bench has held

that:-

“.... what is prohibited under Article 20 is only

conviction or sentence under an ‘ex post facto’

law and not the trial thereof. Such trial under a

procedure different from what obtained at the

time of the commission of the offence or by a

Court different from that which had competence

at the time cannot ‘ipso facto’ be held to be

unconstitutional. A person accused of the

commission of a particular Court or by a particular

procedure, except in so far as any constitutional

objection by way of discrimination or the violation

of any other fundamental right may be involved.”

23

AIR 1953 SC 394

Page 25 25

In the instant case, Article 20(1) would have no

application. The actus of possession is not punishable with

retrospective affect. No offence is created under Section 18

of the NDPS Act with retrospective effect. What is

punishable is possession of the prohibited article on or after

a particular date when the statute was enacted, creating the

offence or enhancing the punishment. Therefore, if a person

is in possession of the banned substance on the date when

the NDPS Act was enforced, he would commit the offence,

for on the said date he would have both the ‘corpus’ and

‘animus’ necessary in law.

18.We would be failing in our duty, if we do not analyse

the decision in Harjit Singh (supra). In the said case the

Court was dealing with the Notification dated 18.11.2009

that has replaced the part of the Notification dated

19.10.2001. Dealing with the said aspect, the Court held:-

“13. Notification dated 18-11-2009 has replaced

the part of the Notification dated 19-10-2001

and reads as under:

Page 26 26

“In the Table at the end after Note 3, the

following Note shall be inserted, namely:

(4) The quantities shown in Column 5

and Column 6 of the Table relating to the

respective drugs shown in Column 2

shall apply to the entire mixture or any

solution or any one or more narcotic

drugs or psychotropic substances of that

particular drug in dosage form or

isomers, esters, ethers and salts of

these drugs, including salts of esters,

ethers and isomers, wherever existence

of such substance is possible and not

just its pure drug content.”

14. Thus, it is evident that under the aforesaid

notification, the whole quantity of material

recovered in the form of mixture is to be

considered for the purpose of imposition of

punishment. However, the submission is not

acceptable as it is a settled legal proposition

that a penal provision providing for enhancing

the sentence does not operate retrospectively.

This amendment, in fact, provides for a

procedure which may enhance the sentence.

Thus, its application would be violative of

restrictions imposed by Article 20 of the

Constitution of India. We are of the view that the

said Notification dated 18-11-2009 cannot be

applied retrospectively and therefore, has no

application so far as the instant case is

concerned.”

The present fact situation is absolutely different and,

therefore, the said decision has no applicability to the case

at hand.

Page 27 27

19.Learned counsel for the State has contended that the

offence in question is a continuing offence, for the offence is

basically a possession of the contraband articles. He has

commended us to the authority in State of Bihar v.

Deokaran Nenshi & Anr .

24

, wherein it has been held that:-

“A continuing offence is one which is susceptible

of continuance and is distinguishable from the one

which is committed once and for all. It is one of

those offences which arises out of a failure to

obey or comply with a rule or its requirement and

which involves a penalty, the liability for which

continues until the rule or its requirement is

obeyed or complied with. On every occasion that

such disobedience or non-compliance occurs and

reoccurs, there is the offence committed. The

distinction between the two kinds of offences is

between an act or omission which constitutes an

offence once and for all and an act or omission

which continues, and therefore, constitutes a fresh

offence every time or occasion on which it

continues. In the case of a continuing offence,

there is thus the ingredient of continuance of the

offence which is absent in the case of an offence

which takes place when an act or omission is

committed once and for all.”

20.Mr.Shiv Mangal Sharma, learned AAG for the State

has also drawn inspiration from Udai Shankar Awasthi v.

State of Uttar Pradesh and Anr .

25

In the said case, while

dealing with the concept of continuing offence, after

24

(1972) 2 SCC 890

25

(2013) 2 SCC 435

Page 28 28

referring to Section 472 of Criminal Procedure Code, 1973,

(CrPC) the Court has stated that the expression “continuing

offence” has not been defined in CrPC because it is one of

those expressions which does not have a fixed connotation

and, therefore, the formula of universal application cannot

be formulated in this respect. The court referred to

Balakrishna Savalram Pujari Waghmare v. Shree

Dhyaneshwar Maharaj Sansthan

26

, Gokak Patel

Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath

27

and eventually held thus:

“Thus, in view of the above, the law on the issue

can be summarised to the effect that, in the case

of a continuing offence, the ingredients of the

offence continue i.e. endure even after the period

of consummation, whereas in an instantaneous

offence, the offence takes place once and for all

i.e. when the same actually takes place. In such

cases, there is no continuing offence, even though

the damage resulting from the injury may itself

continue.”

21.In this context, it would be fruitful to refer to a three-

Judge Bench decision in Maya Rani Punj v. Commissioner

of Income Tax, Delhi

28

. In the said case, the Court

approved what has been said by the High Court of Bombay

26

AIR 1959 SC 798

27

(1991) 2 SCC 141

28

(1986) 1 SCC 445

Page 29 29

in State v. A.H. Bhiwandhiwalia

29

. For the sake of

completeness, we reproduce the relevant paragraph:-

“In State v. A.H. Bhiwandiwalla (a decision

referred to in CWT v. Suresh Seth

30

),

Gajendragadkar, J. (as he then was), after

quoting the observations of Beaumount, C.J. in

an earlier Full Bench decision of that Court

observed:

“Even so, this expression has acquired a

well-recognised meaning in criminal law. If

an act committed by an accused person

constitutes an offence and if that act

continues from day to day, then from day

to day a fresh offence is committed by the

accused so long as the act continues.

Normally and in the ordinary course an

offence is committed only once. But we

may have offences which can be

committed from day to day and it is

offences falling in this latter category that

are described as continuing offences.””

22.We have dwelled upon the said submission, as the

learned counsel for the State has seriously addressed that it

is a continuing offence. We have already opined that on the

date the NDPS Act came into force, the accused-appellant

was still in possession of the contraband article. Thus, it

was possession in continuum and hence, the principle with

regard to continuing offence gets attracted.

29

AIR 1955 Bom 161

30

(1981) 2 SCC 790

Page 30 30

23.It is submitted by Ms. Aishwarya Bhati, learned counsel

for the appellant that there has been non-compliance of

Section 42 of the NDPS Act and hence, the conviction is

vitiated. It is urged by her that the Investigating Officer has

not reduced the information to writing and has also not led

any evidence of having made a full report to his immediate

official superior. The High Court has taken note of the fact

that information given to Bheem Singh, PW-12, and recovery

was made by him who was the Sub-Inspector and SHO at the

police station. That apart, in this context, we may refer with

profit to the Constitution Bench decision in Karnail Singh

v. State of Haryana

31

, wherein the issue emerged for

consideration is whether Section 42 of the NDPS Act is

mandatory and failure to take down the information in

writing and forthwith sending a report to his immediate

officer superior would cause prejudice to the accused. The

Court was required to reconcile the decisions in Abdul

Rashid Ibrahim Mansuri v. State of Gujarat

32

and Sajan

Abraham v. State of Kerala

33

. The Constitution Bench

31

(2009) 8 SCC 539

32

(2000) 2 SCC 513

33

(2001) 6 SCC 692

Page 31 31

explaining the position opined that Abdul Rashid (supra)

did not require about literal compliance with the

requirements of Section 42(1) and 42(2) nor did Sajan

Abraham (supra) hold that requirement of Section 42(1)

and 42(2) need not be fulfilled at all. The larger Bench

summarized the effect of two decisions. The summation is

reproduced below:-

“(a) The officer on receiving the information of the

nature referred to in sub-section (1) of Section 42

from any person had to record it in writing in the

register concerned and forthwith send a copy to

his immediate official superior, before proceeding

to take action in terms of clauses (a) to (d) of

Section 42(1).

(b) But if the information was received when the

officer was not in the police station, but while he

was on the move either on patrol duty or

otherwise, either by mobile phone, or other

means, and the information calls for immediate

action and any delay would have resulted in the

goods or evidence being removed or destroyed, it

would not be feasible or practical to take down in

writing the information given to him, in such a

situation, he could take action as per clauses (a)

to (d) of Section 42(1) and thereafter, as soon as

it is practical, record the information in writing

and forthwith inform the same to the official

superior.

(c) In other words, the compliance with the

requirements of Sections 42(1) and 42(2) in

regard to writing down the information received

Page 32 32

and sending a copy thereof to the superior officer,

should normally precede the entry, search and

seizure by the officer. But in special circumstances

involving emergent situations, the recording of

the information in writing and sending a copy

thereof to the official superior may get postponed

by a reasonable period, that is, after the search,

entry and seizure. The question is one of urgency

and expediency.

(d) While total non-compliance with requirements

of sub-sections (1) and (2) of Section 42 is

impermissible, delayed compliance with

satisfactory explanation about the delay will be

acceptable compliance with Section 42. To

illustrate, if any delay may result in the accused

escaping or the goods or evidence being

destroyed or removed, not recording in writing the

information received, before initiating action, or

non-sending of a copy of such information to the

official superior forthwith, may not be treated as

violation of Section 42. But if the information was

received when the police officer was in the police

station with sufficient time to take action, and if

the police officer fails to record in writing the

information received, or fails to send a copy

thereof, to the official superior, then it will be a

suspicious circumstance being a clear violation of

Section 42 of the Act. Similarly, where the police

officer does not record the information at all, and

does not inform the official superior at all, then

also it will be a clear violation of Section 42 of the

Act. Whether there is adequate or substantial

compliance with Section 42 or not is a question of

fact to be decided in each case. The above

position got strengthened with the amendment to

Section 42 by Act 9 of 2001.”

24.In Rajinder Singh v. State of Haryana

34

, placing

34

(2011) 8 SCC 130

Page 33 33

reliance on the Constitution Bench, it has been opined that

total non-compliance with the provisions of sub-sections (1)

and (2) of Section 42 of the Act is impermissible but delayed

compliance with satisfactory explanation for the delay can,

however, be countenanced.

25.In the present case, the High Court has noted that the

information was given to the competent authority. That

apart, the High Court has further opined that in the case at

hand Section 43 applies. Section 43 of the NDPS Act

contemplates seizure made in the public place. There is a

distinction between Section 42 and Section 43 of the NDPS

Act. If a search is made in a public place, the officer taking

the search is not required to comply with sub Sections (1)

and (2) of Section 42 of the NDPS Act. As has been stated

earlier, the seizure has taken place beneath a bridge of

public road accessible to public. The officer, Sub-Inspector

is an empowered officer under Section 42 of the Act. As the

place is a public place and Section 43 comes into play, the

question of non-compliance of Section 42(2) does not arise.

The aforesaid view gets support from the decisions in

Directorate of Revenue and Anr. v. Mohammed Nisar

Page 34 34

Holia

35

and State, NCT of Delhi v. Malvinder Singh

36

.

26.Learned counsel for the appellant has also contended

that there has been non-compliance of Section 57 of the

NDPS Act, which reads as follows:-

“Report of arrest and seizure – Whenever any

person makes any arrest or seizure under this Act,

he shall, within fortyeight hours next after such

arrest or seizure, make a full report of all the

particulars of such arrest or seizure to his

immediate official superior.”

27.A three-Judge Bench in Sajan Abraham (supra),

placing reliance on State of Punjab v. Balbir Singh

37

, has

held that Section 57 is not mandatory in nature and when

substantial compliance is made, it would not vitiate the

prosecution case. In Karnail Singh (supra), the

Constitution Bench, while explaining the ratio laid down in

Sajan Abraham (supra), analysed the requirement of

Section 42(1) and 42(2) and opined that the said

pronouncement never meant that those provisions need not

be fulfilled at all. However, the Constitution Bench has not

delved into the facet of Section 57 of the NDPS Act.

28.In Kishan Chand v. State of Haryana

38

, the Court

35

(2008) 2 SCC 370

36

(2007) 11 SCC 314

37

(1994) 3 SCC 299

38

(2013) 2 SCC 502

Page 35 35

while dealing with the compliance of Sections 42, 50 and 57,

has opined thus:-

“21. When there is total and definite non-

compliance with such statutory provisions, the

question of prejudice loses its significance. It will

per se amount to prejudice. These are

indefeasible, protective rights vested in a suspect

and are incapable of being shadowed on the

strength of substantial compliance.

22. The purpose of these provisions is to provide

due protection to a suspect against false

implication and ensure that these provisions are

strictly complied with to further the legislative

mandate of fair investigation and trial. It will be

opposed to the very essence of criminal

jurisprudence, if upon apparent and admitted non-

compliance with these provisions in their entirety,

the court has to examine the element of

prejudice. The element of prejudice is of some

significance where provisions are directory or are

of the nature admitting substantial compliance.

Where the duty is absolute, the element of

prejudice would be of least relevance. Absolute

duty coupled with strict compliance would rule out

the element of prejudice where there is total non-

compliance with the provision.”

After so stating, the Court proceeded to address the

separate rights and protection under the said provisions and

in that context ruled:-

“Reliance placed by the learned counsel

appearing for the State on Sajan Abraham is

entirely misplaced, firstly in view of the

Constitution Bench judgment of this Court in

Page 36 36

Karnail Singh. Secondly, in that case the Court

was also dealing with the application of the

provisions of Section 57 of the Act which are

worded differently and have different

requirements, as opposed to Sections 42 and 50

of the Act. It is not a case where any reason has

come in evidence as to why the secret information

was not reduced to writing and sent to the higher

officer, which is the requirement to be adhered to

“pre-search”. The question of sending it

immediately thereafter does not arise in the

present case, as it is an admitted position that

there is total non-compliance with Section 42 of

the Act. The sending of report as required under

Section 57 of the Act on 20-7-2000 will be no

compliance, factually and/or in the eye of the law

to the provisions of Section 42 of the Act. These

are separate rights and protections available to an

accused and their compliance has to be done in

accordance with the provisions of Sections 42, 50

and 57 of the Act. They are neither interlinked nor

interdependent so as to dispense compliance of

one with the compliance of another. In fact, they

operate in different fields and at different stages.

That distinction has to be kept in mind by the

courts while deciding such cases.”

29.In the instant case, on perusal of the evidence, it is

clear that there has been substantial compliance of Section

57 of the NDPS Act and, therefore, the question of prejudice

does not arise.

30.Ms. Bhati, learned counsel for the appellant has also

contended that the appellant was in custody in connection

with FIR no. 95 of 1985 and while in custody, he suffered a

Page 37 37

disclosure statement and led to discovery of the contraband

articles. Submission of the learned counsel for the appellant

is that the said statement cannot be taken aid of for the

purpose of discovery in connection with the present case. It

is demonstrable from the factual matrix that in connection

with FIR No. 95 of 1985, he was arrested and while he was

interrogated, he led to discovery in connection with the

stolen contraband articles from the malkhana which was the

matter of investigation in FIR no. 96 of 1985. There is no

shadow of doubt that the accused-appellant was in police

custody. Section 27 of the Indian Evidence Act, 1872

provides that when any fact is deposed to as discovery in

consequence of the information received from a person

accused of any offence in custody of a police officer, so

much of such information whether it amounts to confession

or not as relates distinctly to the fact thereby discovered

may be proved. It is well settled in law that the

components or portion which was the immediate cause of

the discovery could be acceptable legal evidence [See A.K.

Subraman and Others v. Union of India and Others

39

].

39

AIR 1976 SC 483

Page 38 38

The words employed in Section 27 does not restrict that the

accused must be arrested in connection with the same

offence. In fact, the emphasis is on receipt of information

from a person accused of any offence. Therefore, when the

accused-appellant was already in custody in connection with

FIR no. 95 of 1985 and he led to the discovery of the

contraband articles, the plea that it was not done in

connection with FIR no. 96 of 1985, is absolutely

unsustainable. Be it stated here, that the recovery has been

proven to the hilt. The accused, accompanied by the

witnesses, had gone beneath the bridge built between Gupal

Sariya and Madiyai and he himself had removed the big

stone and dug the earth and took out the packet which was

bound in a long cloth from which a packet was discovered

and the said packet contained 10 kg and 200 gms of opium.

The learned trial Judge as well as the High Court has, by

cogent and coherent reasons, accepted the recovery. On a

scrutiny of the same, we also find that there is nothing on

record to differ with the factum of recovery of the

contraband articles.

31.Another submission that has been advanced by the

Page 39 39

learned counsel for the appellant is that the seized articles

were not sent immediately for chemical examination. The

FSL report, Ex. P-14, dated 15.9.1986 states that a letter

along with a sealed packet was received with seals intact.

The said report further mentions that packet was covered in

white cloth and on opening of the packet, the examiner

found a cylindrical tin and the substance on examination

was found to be an opium having 1.44% morphine. The seal

being intact, the description of the case number and the

impression of seal having been fixed on memo of recovery,

there is no reason or justification to discard the prosecution

case on the ground of delay on this score. In Hardip

Singh v. State of Punjab

40

, a two-Judge Bench while

dealing with the question of delay in sending the samples of

opium to the FSL, opined that it was of no consequence, for

the fact of the recovery of the said sample from the

possession of the appellant had been proven and

established by cogent and reliable evidence and that apart,

it had also come in evidence that till the date of parcels of

samples were received by the Chemical Examiner, the seal

40

(2008) 8 SCC 557

Page 40 40

put on that parcel was intact. Under these circumstances,

the Court ruled that the said facts clearly proves and

establishes that there was no tampering with the aforesaid

seal in the sample at any stage and the sample received by

the analyst for chemical examination contained the same

opium which was recovered from the possession of the

appellant. The plea that there was 40 days delay was

immaterial and would not dent the prosecution case.

32.In view of the aforesaid analysis, we do not perceive

any substance in this appeal and accordingly, the same is

dismissed.

.............................J.

[Dipak Misra]

............................J.

[S.A. BOBDE]

New Delhi

April 17, 2015