REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2108 OF 2008  

Balbir Kaur  …. Appellant

Versus

State of Punjab                                     …. Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

 1. This appeal is directed against the judgment and order passed by the High  

Court of Punjab and Haryana at Chandigarh on 15.05.2008 whereby and  

whereunder the High Court upheld the order of conviction passed against  

the appellant  herein for the offence punishable under Section 15 of the  

Narcotic  Drugs  and  Psychotropic  Substances  Act,  1985  (hereinafter  

referred  to  as  ‘the  NDPS Act’)  and sentenced her  to  undergo  rigorous

imprisonment for a period of ten years, and to pay a fine of Rs. 1 lac, and  

in default of payment of the same to undergo rigorous imprisonment for  

another  period of  two years,  for  having found in  possession of  2  bags  

containing 61 Kgs. of poppy husk, without any permit or licence.   

2. The facts stated in brief are that on 19.12.1988, Sub Inspector Uttam Singh  

along with  ASI  Kasturi  Lal  and other  police  officials,  was  going from  

village  Shambu  to  Village  Tepla,  Rajgarh  and  Ram Nagar  Sainia,  for  

patrol duty and when the police party reached near the turning of Village  

Darian, the appellant was found sitting on two bags.  It is alleged that on  

seeing the police party, the appellant turned her face towards her village.  

Due to the conduct and behaviour of the appellant and on suspicion, Sub  

Inspector  Uttam Singh asked  her  about  the  contents  of  the  bags.   She  

replied by stating that the bags contained poppy husk.  It was also alleged  

that in the meanwhile, Rajwant Pal Singh, an independent witness came  

there  and he also  joined the  police  party.    It  is  alleged that  then Sub  

Inspector Uttam Singh gave option to the accused whether she wanted to  

be searched before the Gazetted Officer or Magistrate to which she replied  

that she wanted to be searched before a Gazetted Officer and by a lady.  

Upon this  Sub Inspector  Uttam Singh sent  wireless  message  to  D.S.P.  

Harcharan  Singh  Bhullar  and  also  requested  for  presence  of  a  lady  

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constable.   In the meanwhile, D.P.S. Harcharan Singh Bhullar alongwith  

Charanjit Kaur, a lady SPO came to the aforesaid place.  D.P.S. Harcharan  

Singh Bhullar thereafter disclosed his identity and that of lady SPO to the  

appellant.  Then SI Uttam Singh conducted the search and both the bags  

were found to contain poppy husk, and therefore, two samples of 250 gms  

each  from  both  the  bags  were  taken  out  as  samples.   The  first  bag  

contained 30 kg 500 gms whereas the second bag contained 29 kgs. 500  

gms of poppy husk.  Sample parcels and the bags were sealed and then  

after completing the necessary formalities the SI Uttam Singh arrested the  

accused  and  recorded  the  statement  of  the  witnesses.  SI  Uttam Singh  

thereafter deposited the case property with the MHC Gurmail Singh and  

on receipt of the report of the Chemical Examiner and on completion of  

other  necessary  investigation  formalities,  charge  sheet  against  the  

appellant was presented.  The court framed charges against the appellant  

and the case was put down for trial of accused.   

3. During  trial,  the  prosecution  examined  a  number  of  witnesses.  The  

statement  of  the  appellant  was  also  recorded under  Section 313 of  the  

Criminal Procedure Code, 1973 (in short “the CrPC”) wherein she denied  

the charges and stated that she was innocent.   In her defence, Rajwant Pal  

Singh (DW-1) and Budh Kaur (DW-2) were examined.  The trial court  

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thereafter  examined  the  records  including  the  depositions  of  all  the  

witnesses and after examination of the records passed its Judgment and  

Order  dated  20.02.1999  holding  that  the  prosecution  has  been  able  to  

prove its case beyond reasonable doubt.  The court held that on 19.02.1998  

the appellant was found in possession of two bags containing 61 Kgs of  

poppy husk without any permit or licence.  Consequently, the trial court  

held the appellant guilty under Section 15 of the NDPS Act and passed an  

order of conviction.  Thereafter, the trial court heard the appellant on the  

question of sentence.  After hearing the parties, the trial court sentenced  

the appellant to undergo minimum sentence of rigorous imprisonment for  

a period of ten years and to pay a fine of Rs. 1 lac under section 15 of the  

NDPS Act and in default  thereof to undergo rigorous imprisonment for  

another period of two years.   

4. Being  aggrieved  by  the  aforesaid  order,  the  appellant  filed  an  appeal  

before the High Court of Punjab and Haryana challenging the aforesaid  

order of conviction and sentence.  The High Court after hearing the parties  

passed the Judgment and Order on 15.05.2008 whereby the High Court  

upheld the Judgment and Order passed by the trial court after dismissing  

the appeal filed by the appellant herein.

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5. Being aggrieved by the Judgment and Order passed by the High Court, the  

present appeal was filed by way of special leave.   

6. Ms. Kamini Jaiswal, learned counsel appearing for the appellant submitted  

that  no case  of  conviction and sentence  was made out  on the  basis  of  

evidence on record.  It was also submitted by her that the appellant was a  

lady of about 70 years and that there was some bias of the police officers  

against  her as she had initiated certain proceedings against them in the  

past.  It  was  further  submitted  that  there  was  no  independent  witness  

examined by the prosecution and it had examined only official witnesses  

although independent witnesses were present  at  the time of occurrence,  

who,  however,  deposed  against  the  prosecution  and  in  favour  of  the  

appellant.   She also submitted that at the time of search of the appellant –  

accused,  there  was  total  non-compliance  of  Sections  52  and 57 of  the  

NDPS Act inasmuch as the police officers did not inform her that she had  

a right to be searched in the presence of a Gazetted Officer and such a  

Gazetted  Officer  was  made  available  only  when  the  appellant  herself  

asked for the presence of such an officer. It was also submitted by her that  

there are material discrepancies in the statement of witnesses.  There was  

also delay in sending samples as alleged recovery of poppy husk was made  

on  19.02.1988  whereas  the  sample  was  deposited  in  the  office  of  the  

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Chemical  Examiner  on  23.02.1988  and  the  said  delay  have  not  been  

explained by the prosecution, and therefore, the order of conviction and  

sentence  is  required  to  be  set  aside.  It  was  also  submitted  that  the  

prosecution has failed to prove and establish its case beyond reasonable  

doubt on the basis  of  the evidence on record that  the appellant  was in  

conscious possession of the contraband goods.  It was submitted that the  

appellant was found sitting on two bags containing poppy husk and when  

she was asked as to what was contained therein she told that the same  

contained poppy husk and therefore the only allegation against her is that  

she was sitting on two bags on an open road, from which it cannot be  

presumed that she was in conscious possession of the contraband goods.

7. With the able help and assistance of the counsel appearing for the parties,  

we  have  examined  the  entire  evidence  on  record  as  also  the  relevant  

provisions of the Act.  The evidence, which has come on record, indicates  

that just before her search, the appellant was found sitting on two bags and  

that on seeing the police party the appellant turned her face towards her  

village.  When Sub Inspector – Uttam Singh asked the appellant about the  

contents of the bags, she replied by stating that the bags contained poppy  

husk.  The said Sub Inspector – Uttam Singh (PW-6) has categorically  

stated this in his evidence.   Not even a suggestion was put to him in the  

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cross examination in that regard.  What actually was done was that when  

the  said  statement  came  on  evidence  the  same  appears  to  have  been  

objected to but there was no suggestion given in the cross examination on  

the behalf of the appellant at the time of examination of the said witness.  

In any case the said two bags were carried by the appellant as stated by the  

said witness, and upon search the same were found to contain poppy husk.  

8. Since recovery  of  poppy husk was made from the bags  carried  by  the  

appellant,  therefore,  the  submission  that  there  was  violation  of  the  

provisions of Sections 52 - 57 of the NDPS Act is baseless and devoid of  

any merit.  Reference in this regard may be made to the decision of this  

Court  in  State of Punjab v.  Baldev Singh,  (1999) 6 SCC 172;  Avtar  

Singh v. State of Punjab, (2002) 2 SCC 419; State of Punjab v. Balkar  

Singh, (2004) 3 SCC 582; Dilip v. State of M. P.;  State of Haryana v.  

Mai Ram,  (2008) 8 SCC 292; and  Hardip Singh v. State of Punjab,  

(2008) 8 SCC 557.

9. In  Madan Lal v. State of H. P., (2003) 7 SCC 465, it was held by this  

Court  that  the  issue  with  regard  to  conscious  possession  is  to  be  

determined  on  the  fact  situation  of  each  case.  The  Court  observed  as  

follows in relevant paras::  

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“19. 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 are that all  the accused persons were travelling 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.

20. Section  20(b)  makes  possession  of  contraband  articles  an  offence.  Section  20  appears  in  Chapter  IV  of  the  Act  which  relates to offences for possession of such articles. It is submitted  that  in  order  to  make  the  possession  illicit,  there  must  be  a  conscious possession.

21. It is highlighted that unless the possession was coupled with  the requisite  mental  element  i.e.  conscious possession and not  mere  custody  without  awareness  of  the  nature  of  such  possession, Section 20 is not attracted.

22. 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 Supdt. & Remembrancer of Legal   Affairs, W.B. v.  Anil Kumar Bhunja4 to work out a completely  logical  and  precise  definition  of  “possession”  uniformally  applicable to all situations in the context of all statutes.

23. The word “conscious” means awareness about a particular  fact. It is a state of mind which is deliberate or intended.

24. As noted in  Gunwantlal v.  State of M.P.5 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 holds it subject to that power or control.

25. The word “possession” means the legal right to possession  (see  Heath v.  Drown6). In an interesting case it  was observed  that where a 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. (See Sullivan v. Earl of Caithness7.)

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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  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.

10.She was found sitting on the bags in the road and seeing the police party  

she behaved in a suspicious manner.  Nothing has come on evidence to  

show  that  at  that  time  any  other  person  was  present  at  the  scene  of  

occurrence.  When she was asked about the contents in the bag she herself  

admitted that it contained poppy husk.  Therefore, her possession of the  

contraband goods  was conscious  possession.   So far  as  the  submission  

with regard to alleged bias of the prosecution is concerned, we are of the  

view that no case of bias has been made out for the earlier proceedings  

which were initiated by the appellant herself by filing an application under  

section 438 CrPC for anticipatory bail.  Another incident which is referred  

to and relied upon by the defence to show bias is that Sub Inspector Uttam  

Singh  (PW-6)  along  with  other  police  officials  raided  the  appellant’s  

residence but nothing incriminating was recovered from there.  That itself  

does not make out a case of bias when she was found in broad light having  

in possession two bags of poppy husk.   

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11.In view of the concurrent findings of the trial court and as also the High  

Court holding that the appellant was in conscious possession of the said  

contraband goods, the allegation of non-disclosure of the purpose of search  

and the grounds of arrest  to her are all of technical nature and without  

being any material force in them.  The appellant herself knew that she was  

being searched for possession of contraband goods, and therefore, she had  

also  sought  for  protection  as  provided under  Section 52 and 57 of  the  

NDPS Act.  She was being searched and arrested on account of possession  

of contraband goods.  The violation of the provisions of the NDPS Act  

was clearly known to her.  The allegation that she herself asked for such  

protection  instead  of  prosecution  giving  her  the  option  to  be  searched  

before a Gazetted Officer,  as required under the law, would not in any  

manner adversely affect her conviction and order of sentence passed by  

both  the  courts  below.  No prejudice  could  be  shown by  the  appellant  

against the DSP, who was a Gazetted Officer and the lady officer present  

at the time of search.   

12.It is also to be noted at this stage that the recovery of poppy husk was  

made from the bags carried by the appellant, so the submission that there  

was violation of the provisions of Section 50 is legally untenable.  This  

Court has recently in State of Haryana v. Maniram, (2008) 8 SCC 292  

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@  p.  295  reiterating  the  well-settled  legal  position  in  this  regard  as  

follows:

“14. So far as the applicability of Section 50 is concerned, the  High Court’s view is clearly indefensible.  Section 50 reads as  follows: “50.  Conditions  under  which  search  of  persons  shall  be  conducted.—(1) When any officer duly authorised under Section  42 is about to search any person under the provisions of Section  41, Section 42 or Section 43, 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.” 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 Maharashtra1, State of Punjab v. Baldev Singh2 and  Gurbax Singh v. State of Haryana3.)  15. The language of Section 50 is implicitly (sic explicitly) 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 case2.  A similar question was examined in Madan Lal v. State of H.P.4 16. Above  being  the  position,  the  finding  regarding  non- compliance  with  Section  50  of  the  Act  is  also  without  any  substance.”

13. As far as delay in sending the samples are concerned, we find the said  

contention untenable in law. Reference in this regard may be made to the  

decision of this Court in Hardip Singh case (supra), wherein there was a  

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gap  of  40  days  between  seizure  and  sending  the  sample  to  chemical  

examiner.  Despite  the  said  fact  the  Court  held  that  in  view  of  cogent  

evidence that opium was seized from the appellant and the seals put on the  

sample were intact till it was handed over to the chemical examiner, delay  

itself is not fatal to prosecution case. In the present appeal, the contraband  

goods were recovered from the possession of the appellant on 19.02.1998  

and the same were sent to the chemical examiner for chemical examination  

on 23.02.1998, the aforesaid delay has no consequence for the fact that the  

recovery of the said sample from the possession of the appellant stands  

proved and established by cogent and reliable evidence led in the trial.  

Therefore, it cannot be said that there was any delay in sending the said  

sample for examination. Since the appellant was sitting on the two bags  

and her  conduct  on  turning her  face  towards  the  village  on  seeing the  

police party and thereafter telling the police party on asking by the police  

that the said bags contained poppy husk clearly establishes that she was in  

conscious possession of the contraband goods.  So far as examination of  

no  independent  witness  is  concerned,  we  find that  there  was  only  one  

independent witness at the time of recovery of the contraband goods, who  

was won over by the defence.  It is established from the facts that the said  

independent witness was examined by the defence as her witness in the  

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trial.  It is not disclosed that any other independent person was present at  

the time of search and at the time of recovery of the contraband goods, and  

therefore, it cannot be said that the search and recovery are in any manner  

vitiated.   

14.In this view of the matter, we find no merit in this appeal.  Accordingly,  

the appeal is dismissed.

..…………………………J. (Dr. Mukundakam Sharma)

………………………..J. (Dr. B.S. Chauhan)

New Delhi, July 7, 2009

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