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.