Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1215 OF 2005

DEHAL SINGH                   …. APPELLANT

   Versus

STATE OF HIMACHAL PRADESH         .... RESPONDENT

WITH

CRIMINAL APPEAL NO. 1216 OF 2005

DINESH KUMAR                  …. APPELLANT

   Versus

STATE OF HIMACHAL PRADESH         .... RESPONDENT

J U D G M E N T

Chandramauli Kr. Prasad, J.

1. Both the appeals arise out of the same judgment and as  

such they were heard together and are being disposed of by  

this common judgment.

2. The  case  unfolded  by  the  prosecution  and  accepted  by  

both the Courts i.e.  trial  and appellate Court  is  that on 18th

October, 2002 at 9.20 A.M.  PW.16, Brijesh Sood, Station House  

Officer,  Police  Station  Sundernagar  along  with  PW.8,  Madan  

Lal,  Assistant  Sub-Inspector  of  Police  and  other  Police  

personnel were present for a routine-check at Lalit Chowk at  

Sundernagar in the  District of Mandi.  Brijesh Sood received a  

secret  information  that  a  car  bearing  Registration  No.HP-34-

7700  is  coming  from  Mandi  side  in  which  two  persons  are  

carrying huge quantity of ‘Charas’.   The aforesaid information  

was reduced into writing and intimation to the said effect was  

sent  to  the  Additional  Superintendent  of  Police,  Mandi.   At  

about  10  A.M.,  one  Maruti  Esteem  car  bearing  Registration  

No.HP-34-7700 came from Mandi side which was stopped by  

PW.16, Brijesh Sood and he found two persons sitting in the  

car, including the driver.  Brijesh Sood made enquiry from the  

person who was driving the car and he disclosed his name as  

Dehal  Singh (appellant  in  Criminal  Appeal  No.1215 of  2005)  

and the other person sitting on the front seat by the side of the  

driver-seat,  disclosed his name as Dinesh Kumar, resident of  

Goa (appellant  in  Criminal  Appeal  No.1216 of  2005).  Brijesh  

Sood gave option in writing to the accused persons, whether  

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they want to give personal search or search of the vehicle before  

a Magistrate or a Gazetted Officer.  Both the appellants gave  

their consent for being searched by him.  Accordingly PW.16,  

Brijesh Sood searched the car and luggage lying inside the car  

but nothing incriminating was found either in the car or the  

luggage.   A  mechanic  was  called  by  PW.3,  Churamani,  who  

opened  the  shields  of  the  windows/doors  when  packets  of  

brown colour  were  found concealed  between the  shields  and  

doors wrapped with black and red adhesive tape.  On opening  

the packets, ‘Charas’ in the shape of stick and  chappatis was  

detected.   Churamani  was  asked  by  PW.16,  Brijesh  Sood to  

bring weighing scale and weight.  He brought the weighing scale  

from the grocery shop of PW.5, Ram Lal and on weightment 27  

Kg. 800 gms. of Charas was found. Two samples of 50 grams  

each were taken out after mixing the entire charas. It was duly  

sealed.  

3. Appellant,  Dehal  Singh  produced  the  registration  

certificate  along  with  driving  licence  and  other  papers  

concerning  the  vehicle.   The  appellants  and  seized  Charas  

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along with samples were taken to the Police Station where the  

personal  search  of  the  appellants  was  conducted.   The  

samples of the Charas and other articles recovered from the  

personal search of the appellants were deposited with PW.8,  

Additional Malkhana Head Constable, Rajinder Kumar for safe  

custody.  First Information Report was thereafter drawn and a  

special  report  sent  to the Superintendent of  Police.    PW.8,  

Rajinder Kumar sent one parcel of the sample to the Chemical  

Examiner, who in his report opined that it contained Charas.  

After usual investigation charge-sheet was submitted against  

the two appellants and ultimately they were put on trial. They  

pleaded not guilty and claimed to be tried.

4. The  prosecution  in  support  of  its  case  has  all  together  

examined  16  witnesses  besides  various  other  documentary  

evidence  were  also  brought  on  record.   In  their  statements,  

under Section 313 of the Code of Criminal Procedure appellants  

pleaded false implication and both of them have stated that the  

appellant, Dinesh Kumar had taken lift in the car from Kullu to  

Delhi.

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5. On appreciation of the evidence the trial court held both  

the appellants guilty under Section 20 of Narcotic Drugs and  

Psychotropic  Substances  Act,  1985  and  sentenced  them to  

undergo rigorous imprisonment for a period of 10 years each  

and  to  pay  a  fine  of  Rs.1,00,000/-  each  and  in  default  of  

payment of fine to suffer rigorous imprisonment for a further  

period of four years.

6. Appellants  preferred  separate  appeals  against  the  

judgment and order of conviction and sentence and the High  

Court  of  Himachal  Pradesh by  its  common judgment  dated  

18th October, 2004 passed in Criminal Appeal Nos. 600 and  

603 of 2003 dismissed both the appeals.

7. Both the appellants assail the aforesaid order by grant of  

special leave to appeal.

8. Mr.  Nagendra  Rai,  learned  Senior  Counsel  appears  on  

behalf of the appellant in Criminal Appeal No.1215 of 2005,  

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whereas  appellant  in  Criminal  Appeal  No.1216  of  2005  is  

represented by Mr. P.S. Mishra, learned Senior Counsel.

9. Mr. Rai submits that according to the prosecution two  

samples of 50 gms. each were taken and sent to the Forensic  

Science  Laboratory  for  examination,   but  net  weight  of  the  

sample  received  in  the  laboratory  was  65.5606  gms.  This  

discrepancy in weight of sample, in the submission of Mr. Rai,  

casts serious doubt to the credibility of the prosecution case  

and  this  is  enough  to  reject  the  case  of  the  prosecution.  

Credibility  of  the recovery proceedings,  in his submission is  

eroded if the quantity found by the analyst is more than the  

quantity sealed and sent to him.  He points out that taking  

into  consideration  the  discrepancy  in  the  weight  of  the  

samples at the time when it was taken and in the laboratory,  

this Court in the case of Noor Aga vs. State of Punjab and  

another,  2008(16) SCC 417, held the case of the prosecution  

to  be  not  trustworthy.  Our  attention  has  been  drawn  to  

paragraph 97 of the judgment which reads as follows:

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“97. The fate of  these  samples  is not  disputed.   Although  two  of  them  were  kept  in  the  malkhana  along  with  the  bulk,  but  were  not  produced.  No  explanation has been offered in this regard. So far as   the  third  sample,  which  allegedly  was  sent  to  the  Central  Forensic  Science  Laboratory,  New Delhi  is  concerned, it stands admitted that the discrepancies   in  the  documentary  evidence  available  have  appeared before the court, namely:

(i)  While original weight of the sample was 5 gm,  as  evidenced  by  Exts.  PB,  PC  and  the  letter   accompanying Ext. PH, the weight of the sample in  the laboratory was recorded as 8.7 gm.

(ii) Initially, the colour of the sample as recorded  was  brown,  but  as  per  the  chemical-examination   report, the colour of powder was recorded as white.”

(underlining ours)

10. Reliance has also been placed on a decision of this Court  

in the case of  Rajesh Jagdamba Avasthi vs. State of Goa,  

2005(9)  SCC  773, and  our  attention  has  been  drawn  to  

paragraph 14 of the judgment which reads as follows:  

“14. We  do  not  find  it  possible  to  uphold  this   finding of the High Court. The appellant was charged  of  having  been  found  in  possession  of  charas  weighing 180.70 gm. The charas recovered from him  was packed and sealed in two envelopes. When the   said envelopes were opened in the laboratory by the   Junior Scientific Officer, PW 1, he found the quantity   to be different. While in one envelope the difference  was  only  minimal,  in  the  other  the  difference  in   weight was significant.  The High Court itself  found  that  it  could  not  be  described  as  a  mere  minor  discrepancy.  Learned  counsel  rightly  submitted  before us that  the  High Court  was  not  justified in  upholding the conviction of the appellant on the basis   of what was recovered only from envelope A ignoring  the quantity  of  charas found in envelope  B. This is  

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because there was only one search and seizure, and  whatever  was  recovered  from  the  appellant  was   packed  in  two  envelopes.  The  credibility  of  the  recovery  proceeding  is  considerably  eroded  if  it  is   found that the quantity actually found by PW 1 was   less than the quantity sealed and sent to him. As he   rightly emphasised, the question was not how much  was  seized,  but  whether  there  was  an  actual   seizure,  and whether  what  was  seized was  really  sent for chemical analysis to PW 1. The prosecution  has not been able to explain this discrepancy and,   therefore,  it  renders  the  case  of  the  prosecution  doubtful.”

11. We do not find any substance in the submission of Mr.  

Rai and the decisions relied on are clearly distinguishable. The  

vehicle was intercepted and searched on a highway and it has  

come in the evidence of PW.16, Brijesh Sood that he had sent  

PW.3, Churamani to bring weighing scale and weight from the  

grocery shop of PW.5, Ram Lal. From the evidence of PW.3,  

Churamani and PW.5, Ram Lal, the grocery shop owner it is  

evident that the weighing scale and the weight came from the  

grocery shop. It is common knowledge that weighing scale and  

weight  kept  in  the  grocery-shop  are  not  of  such  standard  

which can weigh articles  with  great  accuracy  and therefore  

difference of 15 gms. in weight, in the facts and circumstances  

of this case, is not of much significance. Sample was taken by  

a common weighing scale and weight found in a grocery shop,  

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whereas the weight in the laboratory recorded with precision  

scale. This would be evident from the fact that the weight of  

the sample recorded in the laboratory was 65.5606 gms.  In  

this  background,  small  difference  in  weight  loses  its  

significance, when one finds no infirmity in other part of the  

prosecution story.

12. Now referring to the decision of this Court in the case of  

Noor Aga (supra) the difference in the weight at the time of  

taking samples and at the laboratory was considered material  

as  in  the  said  case  the  sample  was  taken  by  the  Custom  

Officials at the Airport and the Court came to the conclusion  

that weight was taken from a precision scale.  Further it is not  

only  the  discrepancy  in  the  weight  which led  this  Court  to  

reject  the  case  of  the  prosecution  but  had  taken  into  

consideration several other discrepancies to come to the said  

conclusion.  This  shall  be  evident  from paragraph 98 of  the  

judgment, which reads as follows:

“98. We are not oblivious of the fact that a slight  difference in the  weight  of  the  sample  may not  be  held  to  be  so  crucial  as  to  disregard  the  entire   

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prosecution case as ordinarily an officer in a public  place would not be carrying a good scale with him.   Here, however, the scenario is different. The place of   seizure was an airport. The officers carrying out the   search  and  seizure  were  from  the  Customs  Department. They must be having good scales with   them as a marginal increase or decrease of quantity   of imported articles whether contraband or otherwise   may make a huge difference under the Customs Act.”

13. Further  in  the  said  case  it  has  been  observed  that  

discrepancy in weight individually may not be fatal.  It is apt  

to reproduce paragraph 119 (3) and (4) of the said judgment in  

this regard:

119. Our  aforementioned  findings  may  be  summarised as follows:

1.  xxx xxx xxx xxx 2. xxx xxx xxx xxx

3. There are  a large number of  discrepancies  in   the treatment and disposal of the physical evidence.  There are contradictions in the statements of official   witnesses.  Non-examination  of  independent  witnesses  and  the  nature  of  confession  and  the  circumstances of the recording of such confession do  not lead to the conclusion of the appellant’s guilt.

4.  Finding  on  the  discrepancies,  although  if   individually examined, may not be fatal to the case   of  the  prosecution  but  if  cumulative  view  of  the  scenario  is  taken,  the  prosecution’s  case  must  be  held to be lacking in credibility.

5. xxx xxx xxx xxx 6. xxx xxx xxx xxx”

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14. Now, we proceed to consider the decision of this Court in  

the case of  Rajesh Jagdamba Awasthi (supra) relied on by  

the appellants and find the same clearly distinguishable.  In  

the said case on fact the Court found the recovery proceeding  

to be suspicious and further there was every possibility of the  

seized substance tampered. Those infirmities led this Court to  

doubt the truthfulness of the prosecution case. This is evident  

from paragraph 15 of the judgment which reads as follows:

“15. This is not all. We find from the evidence of   PW 4 that he had taken the seal from PSI Thorat and  after  preparing the seizure report,  panchnama,  etc.   he carried both the packets to the police station and  handed  over  the  packets  as  well  as  the  seal  to   Inspector Yadav. According to him on the next day,   he took back the packets from the police station and  sent  them  to  PW  3  Manohar  Joshi,  Scientific   Assistant  in the  Crime Branch,  who forwarded the  same  to  PW  1  for  chemical  analysis.  In  these  circumstances, there is justification for the argument  that since the seal as well as the packets were in the   custody  of  the  same  person,  there  was  every  possibility  of  the  seized substance  being  tampered  with,  and that is the only hypothesis on which the  discrepancy  in  weight  can be  explained.  The least  that can be said in the facts of the case is that there  is  serious  doubt  about  the  truthfulness  of  the  prosecution case.”

15. Mr. Rai, then submits that though option was given to the  

appellant to be searched before a Gazetted Officer or nearest  

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Magistrate  but  they  were  not  apprised  of  their  right  to  be  

searched in their  presence and hence the procedure followed  

does not fulfill the requirement of Section 50 of Narcotic Drugs  

and Psychotropic Substances Act, 1985 (hereinafter referred to  

as the “Act’”). He emphasized that accused is not to be given an  

option to be searched in the presence of the Gazetted Officer or  

Magistrate but to be apprised of his right to be searched in their  

presence. According to him conveying option and apprising the  

right are distinct. According to him, this does not satisfy the  

mandate  of  Section  50  of  the  Act  and  once  its  violation  is  

established the search and seizure is rendered illegal and on  

this ground alone appellants’ conviction is vitiated. He points  

out that the Charas was not recovered from the possession of  

the appellants but from the vehicle, but nonetheless appellants  

were  also  searched  and  thus  it  was  obligatory  to  follow  the  

provisions  of  Section 50 of  the  Act.  He  finds  support  to  the  

aforesaid submission from the decision of this Court in the case  

of  Dilip and another vs. State of M.P., 2007 (1) SCC 450,  

and  our  attention  has  been  drawn  to  paragraph  16  of  the  

judgment which reads as follows:

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“16.In this case, the provisions of Section 50 might   not have been required to be complied with so far as   the  search  of  scooter  is  concerned,  but  keeping  in  view the fact that the person of the appellants was   also searched, it was obligatory on the part of PW 10  to comply with the said provisions. It was not done.”

16. This submission of Mr. Rai does not commend us at all.  

In the present case the vehicle was searched and the Charas  

was recovered from the vehicle and persons of the appellants  

were not searched. As the recovery has been from the vehicle  

the provision of Section 50 of the Act, in our opinion, was not  

required to be complied with.  It is relevant here to mention  

that  appellants  were  not  searched  at  the  place  where  the  

vehicle  was  intercepted  and  searched  but  after  they  were  

arrested, and brought to the Police Station, their search was  

made to find out the articles possessed by them before lodging  

them in lock-up.  

17. Not  only  this,  the  prosecution  has  also  claimed  

compliance of Section 50 of the Act. Section 50(1) of the Act,  

which is relevant for the purpose, reads as follows:-

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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 42 or Section   43, he shall,  if  such person as 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.

xxx xxx xxx xxx

18. From  a  plain  reading  of  the  aforesaid  provision  it  is  

evident that it comes into play only when search of a person  

other than vehicle etc. is taken. Further the authorized officer  

is to apprise person about to be searched to be taken to the  

nearest  Gazetted  Officer  or  to  the  Magistrate,  if  the  person  

about to be searched so requires.  Such an option was given to  

the appellants and, in our opinion, it is nothing but apprising  

them of their right.  Option to choose is given to an accused  

when  he  has  right  to  choose.  It  is  communication  of  right  

either to accept or reject. Therefore, in our opinion giving the  

appellants option to be searched satisfied the requirement of  

Section 50 of the Act.  In the case of Dilip (supra) relied on by  

the appellants the question which fell for consideration was as  

to  whether  Section  50  of  the  Act  if  at  all  required  to  be  

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complied with and in the background of the fact that before  

search  and  seizure  of  the  contraband  from  the  scooter,  

personal  search of  the  accused was carried out,  this  Court  

held  that  it  was  so  required.   This  would  be  evident  from  

paragraph 12 of the judgment which reads as follows:

“12.Before  seizure  of  the  contraband  from  the  scooter, personal  search of the appellants had been  carried  out  and,  admittedly,  even  at  that  time  the   provisions of Section 50 of the Act, although required  in law, had not been complied with.”

19. In the present case, as observed earlier, the vehicle was  

searched  at  the  first  instance  and  therefore  there  was  no  

requirement at all  to inform the appellants their right to be  

searched in the presence of the Gazetted Officer or Magistrate.  

Not  only  this,  we  have  found  that  by  giving  option  the  

appellants  were  apprised  of  their  right  and  therefore  the  

provision of Section 50 of the Act was fully complied with.

20. Mr. P.S. Mishra while adopting the submission advanced  

by Mr. Rai, has made an additional submission. He contends  

that  appellant  Dinesh  Kumar  cannot  be  held  to  be  in  

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conscious possession of the Charas as he had taken lift in the  

vehicle  and he  was  not  aware  of  the  fact  that  Charas  was  

being transported  in  the  vehicle.  In this  connection he had  

referred to the statements of  the appellants recorded under  

Section 313 of the Code of Criminal Procedure. Both of them  

had specifically pleaded that this appellant had taken lift in  

the  car.   According  to  Mr.  Mishra  if  this  explanation  is  

accepted, this appellant deserves to be acquitted.   

21. We do not find any substance in this submission of Mr.  

Mishra. Statement under Section 313 of the Code of Criminal  

Procedure  is  taken  into  consideration  to  appreciate  the  

truthfullness  or otherwise of  the case of prosecution and it is  

not an evidence.  Statement of an accused under Section 313 of  

the  Code  of  Criminal  Procedure  is  recorded  without  

administering  oath  and,  therefore,  said  statement  cannot  be  

treated  as  evidence  within  the  meaning  of  Section  3  of  the  

Evidence Act.  Appellants have not chosen to examine any other  

witness to support this plea and in case none was available they  

were free to examine themselves in terms of Section 315 of the  

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Code of Criminal Procedure which, inter alia, provides that a  

person  accused  of  an  offence  is  a  competent  witness  of  the  

defence  and  may  give  evidence  on  oath  in  disproof  of  the  

charges.   There  is  reason  not  to  treat  the  statement  under  

Section 313 of the Code of Criminal Procedure as evidence as  

the accused cannot be cross-examined, with reference to those  

statements.  However, when an accused appears as witness in  

defence to disproof the charge, his version can be tested by his  

cross-examination.  Therefore,  in  our  opinion  the  plea  of  the  

appellant Dinesh Kumar that he had taken lift in the car is not  

fit  to be accepted only on the basis of the statements of the  

appellants  under  Section  313  of  the  Code  of  Criminal  

Procedure.

22. Both the appellants have been found travelling in the car  

from which Charas was recovered and, therefore, they were in  

possession thereof. They were knowing  each other.  They were  

not travelling in a public transport vehicle. Distinction has to  

be  made  between  accused  travelling  by  public  transport  

vehicle and private vehicle.  It needs no emphasis that to bring  

the  offence  within  the  mischief  of  Section  20  of  the  Act  

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possession has to be conscious possession. Section 35 of the  

Act recognizes that once possession is established the Court  

can presume that the accused had a culpable mental state,  

meaning  thereby  conscious  possession.  Further  the  person  

who claims that he was not in conscious possession has to  

establish it.  Presumption of conscious possession is further  

available  under  Section  54  of  the  Act,  which  provides  that  

accused  may  be  presumed  to  have  committed  the  offence  

unless  he  accounts  for  satisfactorily  the  possession  of  

contraband. The view which we have taken finds support from  

a  judgment  of  this  Court  in  the  case  of  Madan  Lal  and  

another vs. State of H.P., 2003 (7) SCC 465, wherein it has  

been held as follows:

“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.

27. In the factual scenario of the present case, not  only possession but conscious possession has been  

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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.”

23. Thus we do not find any merit in these appeals and they  

are dismissed accordingly.

            ………..………………………………….J.                      ( HARJIT SINGH BEDI )

                            ……………………………………………J.                                     (CHANDRAMAULI KR. PRASAD)

New Delhi, August 31, 2010.  

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