Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1479 OF 2008

DHARAMPAL SINGH                  …. APPELLANT

   Versus

STATE OF PUNJAB          .... RESPONDENT

WITH

CRIMINAL APPEAL NO. 1470 OF 2008

MAJOR SINGH                  …. APPELLANT

   Versus

STATE OF PUNJAB          .... RESPONDENT

J U D G M E N T

Chandramauli Kr. Prasad, J.

1. Appellants  have  preferred  these  appeals  separately,  

aggrieved by the judgment and order dated 22nd January, 2008  

passed by the Punjab and Haryana High Court  in Criminal  

Appeal  No.686-DBA  of  1997,  whereby  while  reversing  the

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judgment  of  acquittal  dated  7th May,  1997  passed  by  the  

Sessions  Judge,  Faridkot  in  Sessions  Case  No.73  of  1994  

(Sessions Trial No.71 of 1994) convicted the appellants for the  

offence  under  Section  18  of  the  Narcotic  Drugs  and  

Psychotropic Substances Act, 1985 (hereinafter referred to as  

the  ‘Act’)  and  sentenced  them  to  undergo  rigorous  

imprisonment for a period of 10 years each and to pay a fine of  

Rs.1  lac  each  and  in  default  to  undergo  further  rigorous  

imprisonment for a period of one year each.

2. According  to  the  prosecution,  on  4th June,1994  PW.3,  

Jagmohan  Singh,  Station  House  Officer  of  Police  Station,  

Mehna  along  with  Assistant  Sub-Inspector  of  Police,  Ranjit  

Singh and other police personnel were on a routine picket duty  

near the passage leading to the various colonies from Ajitwal.  

While they were on duty a white Maruti Car, bearing No.PID  

6096 was seen coming from the  side of  village Kokri  Kalan  

through an unmetalled road and when signalled by Jagmohan  

Singh,  it  stopped.  On  enquiry  the  person  driving  the  car  

disclosed his name as appellant Dharampal Singh whereas the

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other person sitting by his side on the front seat disclosed his  

name as appellant Major Singh. According to the prosecution,  

the Station House Officer apprised them that they intend to  

search their car and whether they wish to be searched in the  

presence of a Magistrate or a Gazetted Officer.  Both of them  

expressed  their  desire  to  be  searched  by  a  Gazetted  Police  

Officer and accordingly on his wireless message Narinderpal  

Singh,  Superintendent  of  Police,  Moga  along  with  security  

personnel  reached  there.  According  to  the  prosecution  an  

attempt was made to join independent persons to witness to  

the  search  but  none  were  available.  Hence,  the  car  was  

searched  by  Jagmohan  Singh  in  the  presence  of  the  

Superintendent of Police and in the dicky of the car a gunny  

bag containing opium, wrapped in a glazed paper was found.  

Total weight of the opium found was 65 kilograms and from  

that  sample  of  100 grams was taken and kept  in  a  sealed  

cover.   The  sample  so  taken  was  sent  to  the  Chemical  

Examiner, who found the same to be opium. After completion  

of the investigation charge-sheet was submitted under Section  

18 of the Act and ultimately the appellants were put on trial

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for commission of the offence punishable under the aforesaid  

Section.

3. The  prosecution  in  support  of  its  case  altogether  

examined  seven  witnesses  and  the  report  of  the  Chemical  

Examiner was tendered as evidence. In the statement under  

Section 313 of the Code of Criminal Procedure they pleaded  

false  implication  and examined  six  defence  witnesses.   The  

trial court on appreciation of evidence came to the conclusion  

that  the  prosecution had failed  to  prove,  the  compliance  of  

Section  50  of  the  Act  and  accordingly  acquitted  both  the  

appellants  of  the  charge  levelled  against  them.  In  this  

connection the trial court had observed as follows:

“In  this  case,  there  is  non  compliance  of  the   provisions of  Section  50 of  the  Narcotic  Drugs and  Psychotropic Substances Act, which has been held to   be a mandatory. In this case, admittedly no consent  memo  was  prepared.  In  case  State  of  Punjab  vs.   Labh  Singh  reported  as  1997(1)  Recent  Criminal   Reports 565 where there was no evidence that  the   accused was  informed in writing  of  his right to  be   searched before a Gazetted Officer or a Magistrate,   and the  accused had been acquitted  by the Court,   the Hon’ble Supreme Court refused to interfere in the   order of acquittal.   In case State of Punjab-appellant   Vs.  Kulwant  Singh,  reported  as  1994(1)  Recent  Criminal  Report 303 in para No.57 at  page 320, it  

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was  held by our own Hon’ble  High Court  that  the   non compliance of the provisions of Section 50 of the   Act  would  per  se  result  in  vitiating  the  trial  and  conviction and it would amount to taking away the   most valuable and substantive right of the suspected  person in establishing his innocence and rendering  the recovery of the Narcotic Drugs and Psychotropic  Substances  is  illegal  qua  the  possession  of  the   accused.  This shows that the non compliance of the  provisions of  Section  50 is fatal  to  the  case of  the   prosecution.”

4. Aggrieved by the order of acquittal, State preferred appeal  

and the High Court by the impugned judgment has set aside  

the order of acquittal and convicted the appellants as above.  

The High Court has found that since the recovery was effected  

from the  dicky  of  the  car  and  not  from  the  person  of  the  

appellants the  provisions of  Section 50 of  the Act  were not  

applicable and as such the question of violation thereof did not  

arise  at  all.  The High Court  further  held  that  they  were  in  

possession of 65 Kilograms of opium. The finding of the High  

Court in this regard reads as follows:

“It is proved from the cogent, convincing, reliable and  unimpeachable  evidence  of  Jagmohan  Singh,  Inspector,  Station House Officer, P.S. Mehna, PW-3,   the  Investigating  Officer of  this  case,  and Narinder  Pal  Singh,  Superintendent  of  Police,  PW-2,  that   Dharampal Singh, accused, was driving Car No.PID

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6096 and Major Singh, accused, was sitting by his  side, on the front seat, at the relevant time, when the   recovery of 65 K.gms of opium, wrapped in a glazed   paper,  from a gunny bag,  lying in the dicky of the   same, was effected. The Car, in question, belonged  to the brother of Dharampal  Singh, accused, as per  the registration certificate, referred to above. Since no  enmity against the prosecution witnesses, was either   alleged or proved, it could not be imagined that such  a big haul  of  opium, could be planted,  against  the  accused, by them. Since, the recovery of opium, was   effected from the dicky of the Car, aforesaid, being   driven by Dharampal Singh, accused, by the side of  whom, on the front seat, Major Singh, accused was   sitting, it can be safely held that both of them were   found in possession of the same (opium).”

5. The  High  Court  further  taking  into  account  the  

provisions  of  Sections  35  and  54  of  the  Act  came  to  the  

conclusion that they were in conscious possession of opium  

and  accordingly  convicted  and  sentenced  the  appellants  as  

above.

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

behalf  of  the appellant in Criminal  Appeal  No.1479 of  2008  

whereas the appellant in Criminal Appeal No.1470 of 2008 is  

represented  by  Pandit  Parmanand  Katara,  learned  Senior  

Counsel.   They  concede   that  in  facts  of  the  present  case,

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Section 50 of the Act is not attracted, the ground on which the  

trial  court  had acquitted the  appellants  but they  assail  the  

conviction  of  the  appellants  on  the  ground  mentioned  

hereinafter.

7. Mr. Rai, submits that for the conviction under Section 18  

of the Act the possession has to be a conscious possession and  

merely the fact that the opium was found in the dicky of the  

car, which the appellant was driving itself, shall not establish  

conscious  possession.  In  support  of  his  submission  he has  

placed reliance  on a  judgment  of  this  Court  in  the  case  of  

Avtar Singh and others vs. State of Punjab, 2002 (7) SCC  

419, and  our  attention  has  been  drawn  to  the  following  

passage  from paragraph  6  of  the  judgment  which reads  as  

follows:

“Possession  is  the  core  ingredient  to  be  established  before the  accused in the  instant  case  are subjected to the punishment under Section 15. If   the accused are found to be in possession of poppy  straw which is a narcotic drug within the meaning of   clause (xiv) of Section 2, it is for them to account for  such  possession  satisfactorily;  if  not,  the  presumption under Section 54 comes into  play.  We  need not go into the aspect whether the possession   must be conscious possession. Perhaps taking a cue  from the decision of this Court in Inder Sain v. State   of Punjab arising under the Opium Act, the learned  trial Judge charged the accused of having conscious

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possession  of  poppy  husk.  Assuming  that  poppy  husk comes within the expression poppy straw, the  question, however, remains whether the prosecution   satisfactorily proved the fact that the accused were   in possession of poppy husk. Accepting the evidence  of  PW  4,  the  Head  Constable,  it  is  seen  that   Appellant  3  (Accused  4)  was  driving  the  vehicle  loaded with bags of poppy husk. Appellants 1 and 2  (Accused 1 and 2) were sitting on the bags placed in  the truck. As soon as the vehicle was stopped by ASI  (PW 2), one person sitting in the cabin by the side of   the driver and another person sitting in the back of   the truck fled. No investigation has been directed to  ascertain the role played by each of the accused and  the  nexus  between  the  accused  and  the  offending  goods. The word “possession” no doubt has different  shades  of  meaning  and  it  is  quite  elastic  in  its   connotation.  Possession  and  ownership  need  not  always  go  together  but  the  minimum  requisite   element  which  has  to  be  satisfied  is  custody  or   control over the goods. Can it be said, on the basis of   the  evidence  available  on  record,  that  the  three  appellants — one of  whom was  driving the vehicle  and the other two sitting on the bags, were having   such custody or control? It is difficult to reach such  conclusion  beyond  reasonable  doubt.  It  transpires  from the evidence that  the appellants  were not the   only  occupants  of  the  vehicle.  One  of  the  persons  who  was  sitting  in  the  cabin  and  another  person  sitting  at  the  back  of  the  truck  made  themselves   scarce  after  seeing  the  police  and  the  prosecution   could not establish their identity. It is quite probable  that one of them could be the custodian of the goods  whether  or not he was  the  proprietor.  The persons  who were merely sitting on the bags, in the absence   of proof of anything more, cannot be presumed to be  in possession of the goods.”  

8. Another  decision  on  which  reliance  is  placed  is  the  

decision of this Court in the case of Sorabkhan Gandhkhan  

Pathan and another vs. State of Gujarat, 2004 (13) SCC  

608, wherein it has been held as follows:

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“7. However, we notice that so far as Accused 1,  Appellant 1 herein is concerned, the contraband in  question has been seized from his possession and,  in our opinion, the prosecution has established the  case against the said accused and the courts below  have rightly convicted the said appellant. Whereas  in regard to Appellant 2, it is the prosecution case  itself  that  he  was  travelling  in  the  autorickshaw,  along with three other persons. The prosecution has  not produced any material whatsoever to establish  that  either  this  appellant  had the  knowledge that  Appellant 1 was carrying the contraband or was, in  any  manner,  conniving  with  the  said  accused  in  carrying the contraband. In the absence of any such  material, to convict the second appellant only on the  ground that he was found in the autorickshaw, in  our opinion, is not justified. As a matter of fact, the  courts  below have rightly  acquitted the  other  two  accused on similar ground and, in our opinion, the  said benefit ought to have gone to Accused 2 also.  For the reasons stated, we find the prosecution has  failed  to  establish  its  case  against  Appellant  2.  Therefore,  this  appeal,  so far  as he  is  concerned,  succeeds  and  the  same  is  allowed.  The  said  Appellant  2,  if  in  custody,  shall  be  released  forthwith, if not wanted in any other case. However,  the appeal of the first appellant is dismissed.”

9. We do not find any substance in this submission of the  

learned  counsel.   Appellant,  Dharmpal  Singh  was  found  

driving the car whereas appellant, Major Singh was travelling  

with him and from the dicky of the car 65 Kilograms of opium  

was  recovered.   The  vehicle  driven  by  the  appellant,  

Dharampal Singh and occupied by the appellant, Major Singh  

is not a public transport vehicle.  It is trite that to bring the

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offence within the mischief of Section 18 of the Act possession  

has to be conscious possession.  The initial burden of proof of  

possession lies on prosecution and once it is discharged legal  

burden would shift on accused.  Standard of proof expected  

from  the  prosecution  is  to  prove  possession  beyond  all  

reasonable doubt but what is required to prove innocence by  

the accused would be preponderance of probability.  Once the  

accused plea is found probable, discharge of initial burden by  

the prosecution will not nail him with offence. Offences under  

the Act being more serious in nature higher degree of proof is  

required to convict an accused.  It needs no emphasis that the  

expression possession is not capable of precise and completely  

logical definition of universal application in context of all the  

statutes.  Possession is a polymorphous word  and cannot be  

uniformly  applied,  it  assumes  different  colour  in  different  

context.   In  the  context  of  Section  18  of  the  Act  once  

possession is established the accused, who claims that it was  

not a conscious possession  has to establish it because it is  

within  his  special  knowledge.   Section 54 of  the  Act  raises  

presumption  from possession  of  illicit  articles.   It  reads  as

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follows :

“54.  Presumption  from  possession  of  illicit  articles.  –  In  trials  under  this  Act,  it  may  be  presumed, unless and until the contrary is proved,  that the accused has committed an offence under  this Act in respect of –  

(a) any  narcotic  drug  or  psychotropic  substance  or controlled substance;

(b) any  opium poppy,  cannabis  plant  or  coca  plant  growing  on  any  land  which  he  has  cultivated;

(c) any  apparatus  specially  designed  or  any  group of  utensils  specially  adopted for the  manufacture  of  any  narcotic  drug  or  psychotropic  substance  or  controlled  substance; or

(d) any  materials  which  have  undergone  any  process  towards  the  manufacture  of  a  narcotic drug or psychotropic substance or  controlled substance, or any residue left of  the materials from which any narcotic drug  or  psychotropic  substance  or  controlled  substance has been manufactured,  

for  the  possession  of  which  he  fails  to  account  satisfactorily.”

From a plain reading of the aforesaid it is evident that it  

creates a legal fiction and presumes the person in possession  

of illicit articles to have committed the offence in case he fails  

to account for the possession satisfactorily.   Possession is a

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mental  state  and  Section  35  of  the  Act  gives  statutory  

recognition to culpable mental state.  It includes knowledge of  

fact.  The possession, therefore, has to be understood in the  

context thereof and when tested on this anvil, we find that the  

appellants have not been able to account for satisfactorily the  

possession of opium. Once possession is established the Court  

can presume that the accused had culpable mental state and  

have committed the offence.  In somewhat similar facts this  

Court had the occasion to consider this question 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  established. It has not been shown by the accused- appellants that the possession was not conscious in

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the logical background of Sections 35 and 54 of the  Act.”

10. Now, referring to the decision of this Court in the case of  

Avtar Singh (supra), the same is clearly distinguishable. In  

the said case, according to the prosecution itself,  the vehicle  

loaded with bags of poppy husk was a truck  and when it was  

stopped one person sitting in the cabin and another person  

sitting in the back of the truck fled away.  The accused in the  

said  case  were  not  the  only  occupants  and  in  the  said  

background this Court held that they cannot be presumed to  

be in the possession of the goods and it is quite probable that  

one of  those  who fled  away could  have been the  custodian  

thereof.  However, in the present case the vehicle in question  

is not a transport vehicle and, therefore, the test applied in the  

case  of  public  transport  vehicles  in  which  several  persons  

travel  cannot  be  applied  in  the  facts  of  the  present  case.  

Similarly,  in  the  case  of  Sorabkhan  Gandhkhan  

Pathan(supra)  the  contraband  was  recovered  from  an  

autorickshaw  and in  the  absence  of  specific  case  that  the  

accused had knowledge of carrying the contraband,  only on

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the  ground  that  he  was  travelling  in  an  autorickshaw,  

possession cannot be inferred. For the reasons aforesaid this  

case is of no assistance to the appellants.

11. Mr.  Rai,  then  submits  that  circumstance  that  the  

appellants were in conscious possession of the opium was not  

put to them while being examined under Section 313 of the  

Code of Criminal Procedure and hence the conviction of the  

appellants is vitiated on this ground alone.   He points out that  

this is very valuable right and its breach is sufficient to hold  

appellants’  conviction  to  be  bad  in  law.   In  support  of  the  

contention reference has been made to paragraph 9 and 18 of  

the judgment of this Court in the case of   State of Punjab vs.  

Hari Singh and others, 2009(4) SCC 200,   same reads as  

follows:

“9. Stand  of  the  accused  persons  before  the  High  Court was that there was no evidence to show any  conscious  possession  which  is  a  sine  qua non  for  recording  conviction  under  Section  15  of  the  Act.   Additionally,  it  was  submitted  that  no  question  regarding possession was put to any of them in their   examination  under  Section  313  of  the  Code  of   Criminal Procedure, 1973 (in short “the Code”).

18. When the accused was examined under Section  313  CrPC,  the  essence  of  accusation  was  not

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brought  to  his  notice,  more  particularly,  that  possession aspect, as was observed by this Court in  Avtar Singh v.  State of Punjab. The effect of such  omission vitally affects the prosecution case.”

12. We are not at all  impressed by this submission of Mr.  

Rai.  One of the circumstances appearing in the evidence put  

to the appellants while being examined under Section 313 of  

the  Code  of  Criminal  Procedure,  and  its  answer  read  as  

follows:

“Q. It  is  in  evidence  against  you  that  in  the  presence  of  S.P.  Narinderpal  Singh,  Jagmohan  Singh Inspector searched the dicky of the car and  recovered  gunny  bag  containing  opium  from  the  dicky.   On  weighing  the  opium  came  to  be  65  Kilograms 100 grams of  opium was taken out  as  sample and the remaining opium was put in five tin  boxes which were sealed with the seal of NPS of S.P.  Narinderpal  Singh and JS of  Inspector  Jagmohan  singh. Box boxes containing opium Ex.P2 to Ex.P6  along its sample parcel were taken into possession  vide memo Ex.PB impression of the seal was also  prepared which are Ex.P7 and Ex.P8 and both the  seals  after  use  were  handed  over  to  ASI  Ranjit  Singh. What have you got to say about it?

A. It is incorrect.”

As part of fair trial, Section 313 of the Code of Criminal  

Procedure requires giving opportunity to the accused to give

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his explanation regarding the circumstance appearing against  

him in the evidence adduced by the prosecution.  The purpose  

behind  it  is  to  enable  the  accused  to  explain  those  

circumstances.  It is not necessary to put entire prosecution  

evidence and elicit answer but only those circumstances which  

are adverse to the accused and his explanation would help the  

court in evaluating the evidence properly.  The circumstances  

are  to  be  put  and  not  the  conclusion.   It  is  not  an  idle  

formality and questioning must be fair and couched in a form  

intelligible to the accused.  But it does not follow that omission  

will necessarily vitiate the trial.  The trial would be vitiated on  

this score only when on fact it is found that it had occasioned  

a failure of justice.

13. Bearing in mind the aforesaid principle when we consider  

the  facts  of  the  present  case  we  find  that  the  prosecution  

intends to prove that the appellants were in possession of the  

opium by disclosing that illicit article was recovered from the  

dicky of the vehicle driven and occupied by them. Possession  

is  a  mental  state  and  what  has  been  unfolded  by  the

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prosecution is that on search of dicky of the car opium was  

recovered. Circumstances aforesaid lead to the conclusion that  

the  appellants  were  in  conscious  possession.  Therefore,  it  

cannot be said that appellants were not told to explain the  

circumstances appearing against them in the evidence.     

14. Now,  referring  to  the  decision  of  this  Court  in  Hari  

Singh (supra) relied on by the appellants, the same is clearly  

distinguishable.   In  the  said  case  no  question  regarding  

possession was put to the accused in the examination under  

Section 313 of the Code of Criminal Procedure, which would  

be evident  from paragraph 9 of  the judgment quoted above  

and in the background thereof the Court held such omission  

to be vital affecting the case of the prosecution.  In the case in  

hand  we  have  in  extenso  reproduced  the  circumstances  

appearing against the appellants in the evidence and on fact  

found that  the  circumstances  appearing  against  them were  

put to them in their statement under Section 313 of the Code  

of  Criminal  Procedure.   In  any  of  the  view  it  has  not  

occasioned failure of justice.

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15. Pandit Katara while adopting the submission of Mr. Rai  

submits that the article recovered from the appellants is not  

opium and,  therefore,  their  conviction  is  illegal.   Aforesaid  

submission  is  founded  in  the  light  of  evidence  of  DW.6,  

Swaran Kumar, Malkhana Clerk of the Court of Chief Judicial  

Magistrate, who in his evidence has stated that as per record  

111 Kilograms of opium was sent to Ghazipur and from the  

report received it has been observed that the said consignment  

did not contain any alkaloid.  No such plea was raised either  

before the Trial Court or the High Court and though this plea  

surprised us, we have examined the same.  We have no doubt  

in mind that in case report pertains to the case in hand, the  

appellants cannot be held guilty of possessing the opium and  

have to be acquitted.  But, it  is not so.  Pandit Katara has  

conveniently  left  the  evidence  of  this  witness  in  the  cross-

examination, wherein he has clearly deposed that he cannot  

tell as to which case the opium related. Otherwise also in the  

present  case  100  grams  opium  was  sent  to  the  Chemical  

Examiner who found that to be opium. This witness had in

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mind  a  case  in  which  111  Kilograms  of  opium  was  sent.  

Therefore, the report referred to by DW.6 Sarwan Kumar is not  

remotely connected with the present case.   

16. Pandit Katara had further submitted that no independent  

witness of search and seizure had been examined and on this  

ground alone the search and seizure is rendered illegal.  He  

submits that rigours of Section 100 of the Code of Criminal  

Procedure  are  applicable  and  there  being  no  independent  

witness, the case of the prosecution deserves to be rejected.  

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

The case of  the prosecution cannot be rejected only on the  

ground that independent witnesses have not been examined,  

in case on appraisal of the evidence on record the court finds  

the case of prosecution to be trustworthy.  It has come in the  

evidence  of  the  prosecution  witnesses  that  an  attempt  was  

made to join person from public at the time of search but none  

was available.  In the face of it mere absence of independent  

witness at the time of search and seizure will not render the  

case of the prosecution unreliable.

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17. We do not find any merit in these appeals and they are  

dismissed accordingly.

              ………..………………………………….J.

                    ( HARJIT SINGH BEDI )

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

New Delhi, September 09, 2010.