REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINIAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 32 OF 2009

STATE OF PUNJAB …APPELLANT

VERSUS

LAKHWINDER SINGH & ANR. …RESPONDE NTS

J U D G M E N T

Dr. Mukundakam Sharma

1.The present appeal is an appeal filed by the State of Punjab

challenging the judgment and order dated 20.08.2007

passed by the High Court of Punjab & Haryana whereby the

High Court acquitted the respondents herein of the charge

under Section 15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 [for short “NDPS Act”], thereby

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reversing the judgment and order of conviction and

sentence passed by the trial Court, i.e., the Special Court,

Patiala. The trial Court convicted the respondents herein

under the aforesaid section and sentenced each of them to

suffer rigorous imprisonment for a period of 12 years and to

pay a fine of Rs. 1 lakh each, and in default of payment of

fine, to further undergo rigorous imprisonment for two

years.

2.The prosecution case, in brief, is that on 23.04.2002 Sub-

Inspector, Tejinder Singh [PW-4], who was the then Station

House Officer [for short “SHO”] of the Police Station, Ghagga

accompanied by Sub-Inspector Ajaib Singh, Assistant Sub-

Inspector Surinderpaljit Singh [PW-3] and constables, viz.,

Faqir Chand, Kulwant Singh and other police officials were

present at village Shahpur and were going around in the

course of their routine duty of checking of the religious

places in the said village. It was during the course of

patrolling that they also visited a temple of Udasi

Community on Shahpur Tilla and saw that on the nearby

passage a man and woman were sitting on some plastic

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bags. As soon as the respondents saw the police party, they

tried to hide themselves behind the said bags. On seeing the

aforesaid conduct of the respondents, the police party

became suspicious and therefore approached them to

enquire from them their identity. Respondent no. 1 gave his

name as Lakhwinder Singh @ Lakha whereas the woman

[respondent no. 2] disclosed her name as Balwinder Kaur.

3.The SHO [PW-4] then informed the respondents about his

suspicion of the said bags containing contraband and also

of his intention to conduct a search of the bags.

Accordingly, PW-4 offered them as to whether they wanted

to be searched by him or by a Gazetted Officer or a

Magistrate. At this, respondents refused to be searched by

PW-4 and consequently, the Sub-Inspector sent a wireless

message to send a Gazetted Officer or a Magistrate. Upon

this Jaspreet Singh Sindhu, DSP, Samana arrived at the

said place and disclosed his identity to the accused persons

and separately asked the respondents as to whether they

wanted their search to be conducted by a Gazetted Officer

or a Magistrate. Lady Constable Harjit Kaur was also called

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at the spot. On being so asked, both the respondents gave

their consent to be searched before the DSP. In the

meantime, Gurnam Singh, Lamberdar of village Kakrala

also joined the police party and he also thumb marked the

consent memo. Thereafter, a search of the bags on which

the respondents were sitting, numbering 35, was conducted

and poppy husk was found in all the 35 bags.

4.On recovery of the aforesaid poppy husk from the said bags,

two samples of 250 grams each were separated from each

bag and separate parcels were prepared. The bags were

numbered from Nos. 1 to 35. The bags as well as the sample

parcels were separately sealed by PW-4 with his seal TS,

and the sample seal was separately prepared. The seal after

use was handed over to Gurnam Singh, Lamberdar of

village Kakrala. The case property was taken into

possession through recovery memo. Intimation for grounds

of arrest was given to the respondents and they were

accordingly arrested and on return to the police station,

case property was deposited with the MHC. The case

property and the sample parcels were produced before the

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learned Sub-Divisional Judicial Magistrate, Samana on

24.04.2002. On the analysis of the samples, the Chemical

Examiner submitted a report whereby he confirmed the

contents of the samples seized and sealed to be poppy husk.

Ruqa was prepared and sent to the Police Station Ghagga,

on the basis of which a formal First Information Report was

drawn and registered. After completing the investigation,

the challan was presented in the Court.

5.The trial Court after receipt of the chargesheet filed under

Section 15 of the NDPS Act charged the respondents under

the said Section. The respondents herein pleaded not guilty

to the charge and claimed trial. Consequently, a trial was

conducted, during the course of which, the prosecution

examined four witnesses whereas the defence examined

none. The respondents were examined under Section 313

CrPC.

6.Upon completion of the trial, the learned Judge, Special

Court, Patiala passed a judgment and order dated

07.07.2005 whereby the trial Court convicted the

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respondents herein under Section 15 of the NDPS Act and

sentenced them as aforesaid.

7.Being aggrieved by the aforesaid judgment and order of

conviction and sentence, the respondents herein filed an

appeal before the High Court of Punjab and Haryana. The

High Court after hearing the parties passed a judgment and

order dated 20.08.2007 allowing the appeal filed by the

respondents herein. The Division Bench of the High Court

set aside the order of conviction and sentence passed by the

trial Court and acquitted the respondents of all the charges.

Being aggrieved by the aforesaid order of acquittal, the

present appeal was filed by the State of Punjab on which we

have heard the learned counsel appearing for the parties.

8.The counsel appearing for the State submitted before us

that the order of acquittal is palpably wrong and perverse. It

was also submitted that the findings recorded by the High

Court that there were glaring discrepancies in the

prosecution case is based on irrelevant materials and that

the order of acquittal was passed on frivolous grounds. It

was also submitted by the counsel appearing for the

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appellant that conscious possession of the illegal substance

by the respondents was established and the said finding

having not been discredited, the High Court was not

justified in interfering with the order of conviction recorded

by the trial Court.

9.In order to appreciate the aforesaid contention, we have

gone through the records. The discrepancies which are

referred to by the High Court as glaring discrepancies

appear to us to be very minor discrepancies which do not in

any manner affect the sub-stratum of the case and the

offence alleged against the respondents. The High Court has

held that both the respondents were required to be

acquitted because Surinderpaljit Singh [PW-3] had stated

that the seal was handed over to Gurnam Singh, Lamberdar

of village Kakrala whereas the Investigating Officer had

stated that the seal was handed over to Sub-Inspector Ajaib

Singh. The other ground which was considered and relied

upon by the High Court for acquitting the respondents was

that the DSP, who had been called at the option of the

respondents who wanted to be searched in front of the

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gazetted officer was not brought into the witness box and

was given up by the prosecution as being unnecessary.

Other grounds which have been recorded by the High Court

for acquitting the respondents were that the police officials

were travelling in a private jeep but the number of that jeep

was not given by the prosecution and that the Sub-

Inspector Tejinder Singh [PW-4], the Investigation Officer

did not categorically say as to who was driving the jeep and

who was the owner of the jeep. The High Court has also

held that the delay of about seven days in sending the

samples of the case property to the Forensic Science

Laboratory was fatal, inasmuch as in the intervening period

tampering of the case property could have been easily done.

For the aforesaid reasons, the High Court passed the order

of acquittal.

10.Counsel appearing for the respondents disputed the fact of

conscious possession by the respondents and submitted

that merely because the respondents were sitting on the

bags it could not be said that they were in conscious

possession of the bags. The expression “possession” came to

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be analysed by this Court in several decisions. The first

case in point of time to which our attention was drawn is

the decision in the case of Inder Sain v. State of Punjab

reported in (1973) 2 SCC 372. In the said decision also this

Court was called upon to answer the question as to whether

the appellant was in possession of opium. In the said

decision, this Court held that the word “possess” connotes

some sort of knowledge about the thing possessed. It was

also held that the prosecution must prove that accused was

in control of something in the circumstances which showed

that he was assenting to being in control of it. This Court

further held that once it is proved by the prosecution that

the accused was in physical custody of opium, it is for the

accused to prove statutorily that he has not committed an

offence by showing that he was not knowingly in possession

of opium. Thus, the burden of proving the fact that the

accused was not knowingly in possession of the contraband

would lie on the shoulders of the accused person.

11.Section 15 of the NDPS Act makes possession of

contraband articles an offence. Section 15 appears in

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Chapter IV of the Act which relates to the offence of

possession of poppy straw.

12.In Madan Lal and another v. State of H.P. reported in

(2003) 7 SCC 465 this Court held that 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 of the same is within his special

knowledge. It was also held in that case that Section 35 of

the Act gives a statutory recognition to this position by

making it a statutory 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.

13.In Gunwantlal v. State of M.P. reported in (1972) 2 SCC

194 it was held by this Court that possession in a given

case need not be physical possession but can be

constructive, having power and control over the article in

the case in question, while the person to whom physical

possession is given also is subject to such power or control.

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14.In the backdrop of the aforesaid settled position of law we

have to examine the facts of the present case in order to

hold as to whether or not the respondents could be said to

have been in conscious possession of the contraband goods.

Evidence was led by the prosecution to establish that the

respondents were found sitting on the aforesaid bags of

poppy husk. It was also stated by the Sub-Inspector as also

the Assistant Sub-Inspector that the presence of the

accused respondents at such an early hour, i.e., 8.00 a.m.

near a religious place with such large number of bags and

their sitting on them and on seeing the police party their

conduct of trying to hide themselves behind the bags prove

and establish that they were in possession of the aforesaid

bags. The very fact that they tried to hide themselves

behind the bags made the police party suspicious about the

contents of the bags which led to a search of the said bags

and on search being carried out in accordance with law, the

aforesaid suspicion that the bags contained contraband was

confirmed.

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15.The respondents, during the trial, could not give any

satisfactory reply as to how and why they came from

Haryana and were found sitting on bags of poppy husk.

Their subsequent conduct of hiding behind the bags also

shows their guilty mind.

16.Reference could also be made to Exhibits PC and PD which

are memos prepared by the Investigating Officer. In the said

memos, it was clearly stated that the contraband was

contained in the bags which were kept in the possession of

the respondents. There were separate memos prepared and

each one of them is signed by the two respondents

respectively and separately. The aforesaid documents,

therefore, clearly establish that the respondents were in

possession of the said contraband. The evidence adduced by

both the Sub-Inspectors as also by the Assistant Sub-

Inspector examined as PW-3 and PW-4 also prove and

establish that both the respondents were in conscious

possession of the contraband goods. So far as the seizure of

the contraband goods is concerned, the discrepancies

pointed out by the High Court in our opinion are very minor

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and they are not very material. The prosecution has been

able to establish and prove that the aforesaid bags which

were 35 in number contained poppy husk and accordingly

the same were seized after taking samples therefrom which

were properly sealed. The defence has not been able to

prove that the aforesaid seizure and seal put in the samples

were in any manner tampered with before it was examined

by the Chemical Examiner. There was merely a delay of

about seven days in sending the samples to the Forensic

Examiner and it is not proved as to how the aforesaid delay

of seven days has affected the said examination when it

could not be proved that the seal of the sample was in any

manner tampered with. The seal having been found intact

at the time of the examination by the Chemical Examiner

and the said fact having been recorded in his report, a mere

observation by the High Court that the case property might

have been tampered with, in our opinion is based on

surmises and conjectures and cannot take the place of

proof.

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17.We may at this stage refer to a decision of this Court in

Hardip Singh v. State of Punjab reported in (2008) 8 SCC

557 in which there was a delay of about 40 days in sending

the sample to laboratory after the same was seized. In the

said decision, it was held that in view of cogent and reliable

evidence that the opium was seized and sealed and that the

samples were intact till they were handed over to the

Chemical Examiner, the delay itself was held to be not fatal

to the prosecution case. In our considered opinion, the ratio

of the aforesaid decision squarely applies to the facts of the

present case in this regard.

18.The case property was produced in the Court and there is

no evidence to show that the same was ever tampered with.

19.Considering the facts and circumstances of the case, we

are of the considered opinion that the view taken by the

High Court is palpably wrong and the findings recorded are

also perverse. In our considered opinion, the aforesaid

reasons which are stated hereinabove are sufficient and

cogent grounds to disturb the acquittal. Accordingly, the

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judgment and order passed by the High Court is set aside

and the order of the trial Court is restored.

20.The respondents, if at liberty, are hereby directed to

surrender forthwith and undergo the remaining term of

imprisonment as directed by the trial Court. The appeal

stands disposed of in terms of the aforesaid order.

…….…………… ..…………J.

[Dr. Mukundakam Sharma]

…..…………………………… .J.

[A.K. Patnaik]

NEW DELHI

APRIL 5, 2010.

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