REPORTABLE  

       IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 291  OF 2004

STATE OF PUNJAB ...   Appellant(s)                         Versus    RAM PAL ...  Respondent(s)

J U D G M E N T  

Dr.ARIJIT PASAYAT,J.

Challenge  in  this  appeal  is  to  the judgment of  acquittal  recorded by a  

Division Bench of the Punjab and Ahryana High Court directing acquittal of the  

respondent  who  faced  trial  for  alleged  commission  of  offence  punishable  under  

Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short  

'Act').  He was sentenced to undergo rigorous imprisonment for a period of 11 years  

and to pay a fine of  Rs.  1,00,000/-  with default  stipulation by the learned Single  

Judge, Patiala.

So far as co-accused Amrik Singh is concerned, he was convicted under  

Section 15 of the Act and was awarded the same sentence.  Two separate appeals  

were filed.  It needs to be mentioned here that respondent Ram Pal was also charged  

for offence punishable under Section 15 of the Act

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but in view of the conviction recorded in respect of Section 25 of the Act no sentence  

was awarded.  Therefore, no separate sentence was imposed in respect of accusation  

relatable to Section 15 of the Act.  The High Court primarily directed acquittal on  

the ground that conscious possession has not been established.

Learned counsel for the appellant-State submitted that the position in law  

relating to conscious possession has been dealt with in detail by this Court in Madan  

Lal and Anr.  Vs. State of H.P. 2003 (7) SCC 465.  The High Court has not kept the  

correct position in view.  

There is no appearance on behalf of the respondent.

The  expression  “possession”  is  a  polymorphous  term  which  assumed  

different  colous  in  different  contexts.   It  may  carry  different  meanings  in  

contextually differenmt backgrounds.  It is impossible, as was observed in Spdt. &  

Remembrancer  of  Legal  Affairs,  W.B.  Vs.  Anil  Kumar Bhujja to  work  out  a  

completely logical and precise definition of “possession” uniformally applicable to  

all situations in the context of all statues.

The word “conscious” means awareness about a particular fact.  it is a  

state of mind which is deliberate or intended.

As noted in Gunwantlal  Vs. State of M.P. possession in a given case need  

not be physical possession but can be

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

while the person to whom physical possession is given holds it subject to that power  

or control.

The  word  “possession”  means  the  legal  right  to  possession.   In  an  

interesting  case  it  was  observed  that  wherea  person  keeps  his  firearm  in  his  

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

possession of the same.

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 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.

Normally we would have decided the matter taking note of what is stated  

in  Madan Lal and Anr.  Vs.  State of H.P. 2003 (7) 465.  But the respondent is not  

represented and, therefore, we deem it proper to set aside the impugned judgment  

and remit the matter to the High Court afresh in the light of what is stated by this  

court in    Madan Lal case (supra).  The present judgment will cover the case of  

accused Ram Pal only.

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The appeal is allowed to the aforesaid extent.

              ...................J.                                  (Dr. ARIJIT PASAYAT)   

                  ....................J.                          (LOKESHWAR SINGH PANTA)

   ....................J.      (P.SATHASIVAM)

New Delhi, March 26, 2009.