REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINIAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 32 OF 2009

STATE OF PUNJAB       …APPELLANT    

VERSUS

LAKHWINDER SINGH & ANR.       …RESPONDENTS

J U D G M E N T

Dr. Mukundakam Sharma

1. The present appeal is an appeal filed by the State of Punjab  

challenging  the  judgment  and  order  dated  20.08.2007  

passed by the High Court of Punjab & Haryana whereby the  

High Court acquitted the respondents herein of the charge  

under Section 15 of the Narcotic Drugs and Psychotropic  

Substances  Act,  1985  [for  short  “NDPS  Act”],  thereby  

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reversing  the  judgment  and  order  of  conviction  and  

sentence passed by the trial Court, i.e., the Special Court,  

Patiala.  The trial  Court  convicted  the respondents  herein  

under the aforesaid section and sentenced each of them to  

suffer rigorous imprisonment for a period of 12 years and to  

pay a fine of Rs. 1 lakh each, and in default of payment of  

fine,  to  further  undergo  rigorous  imprisonment  for  two  

years.

2. The prosecution case, in brief, is that on 23.04.2002 Sub-

Inspector, Tejinder Singh [PW-4], who was the then Station  

House Officer [for short “SHO”] of the Police Station, Ghagga  

accompanied by Sub-Inspector Ajaib Singh, Assistant Sub-

Inspector Surinderpaljit Singh [PW-3] and constables, viz.,  

Faqir Chand, Kulwant Singh and other police officials were  

present at village Shahpur and were going around in the  

course  of  their  routine  duty  of  checking  of  the  religious  

places  in  the  said  village.   It  was  during  the  course  of  

patrolling  that  they  also  visited  a  temple  of  Udasi  

Community on Shahpur Tilla and saw that on the nearby  

passage  a  man and woman were  sitting  on some plastic  

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bags. As soon as the respondents saw the police party, they  

tried to hide themselves behind the said bags. On seeing the  

aforesaid  conduct  of  the  respondents,  the  police  party  

became  suspicious  and  therefore  approached  them  to  

enquire from them their identity. Respondent no. 1 gave his  

name as Lakhwinder Singh @ Lakha whereas the woman  

[respondent no. 2] disclosed her name as Balwinder Kaur.   

3. The SHO [PW-4] then informed the respondents about his  

suspicion of the said bags containing contraband and also  

of  his  intention  to  conduct  a  search  of  the  bags.  

Accordingly, PW-4 offered them as to whether they wanted  

to  be  searched  by  him  or  by  a  Gazetted  Officer  or  a  

Magistrate. At this, respondents refused to be searched by  

PW-4 and consequently, the Sub-Inspector sent a wireless  

message to send a Gazetted Officer or a Magistrate. Upon  

this  Jaspreet  Singh Sindhu, DSP, Samana arrived at  the  

said place and disclosed his identity to the accused persons  

and separately asked the respondents as to whether they  

wanted their search to be conducted by a Gazetted Officer  

or a Magistrate. Lady Constable Harjit Kaur was also called  

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at the spot. On being so asked, both the respondents gave  

their  consent  to  be  searched  before  the  DSP.  In  the  

meantime,  Gurnam  Singh,  Lamberdar  of  village  Kakrala  

also joined the police party and he also thumb marked the  

consent memo. Thereafter, a search of the bags on which  

the respondents were sitting, numbering 35, was conducted  

and poppy husk was found in all the 35 bags.  

4. On recovery of the aforesaid poppy husk from the said bags,  

two samples of 250 grams each were separated from each  

bag  and  separate  parcels  were  prepared.  The  bags  were  

numbered from Nos. 1 to 35. The bags as well as the sample  

parcels were separately  sealed by PW-4 with his seal  TS,  

and the sample seal was separately prepared. The seal after  

use  was  handed  over  to  Gurnam  Singh,  Lamberdar  of  

village  Kakrala.   The  case  property  was  taken  into  

possession through recovery memo. Intimation for grounds  

of  arrest  was  given  to  the  respondents  and  they  were  

accordingly  arrested  and  on  return  to  the  police  station,  

case  property  was  deposited  with  the  MHC.  The  case  

property and the sample parcels were produced before the  

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learned  Sub-Divisional  Judicial  Magistrate,  Samana  on  

24.04.2002. On the analysis of the samples, the Chemical  

Examiner  submitted  a  report  whereby  he  confirmed  the  

contents of the samples seized and sealed to be poppy husk.  

Ruqa was prepared and sent to the Police Station Ghagga,  

on the basis of which a formal First Information Report was  

drawn  and  registered.  After  completing  the  investigation,  

the challan was presented in the Court.  

5. The trial Court after receipt of the chargesheet filed under  

Section 15 of the NDPS Act charged the respondents under  

the said Section. The respondents herein pleaded not guilty  

to the charge and claimed trial. Consequently, a trial was  

conducted,  during  the  course  of  which,  the  prosecution  

examined  four  witnesses  whereas  the  defence  examined  

none.  The respondents were examined under Section 313  

CrPC.  

6. Upon  completion  of  the  trial,  the  learned  Judge,  Special  

Court,  Patiala  passed  a  judgment  and  order  dated  

07.07.2005  whereby  the  trial  Court  convicted  the  

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respondents herein under Section 15 of the NDPS Act and  

sentenced them as aforesaid.  

7. Being  aggrieved  by  the  aforesaid  judgment  and  order  of  

conviction  and sentence,  the  respondents  herein  filed  an  

appeal before the High Court of Punjab and Haryana. The  

High Court after hearing the parties passed a judgment and  

order  dated  20.08.2007  allowing  the  appeal  filed  by  the  

respondents herein. The Division Bench of the High Court  

set aside the order of conviction and sentence passed by the  

trial Court and acquitted the respondents of all the charges.  

Being  aggrieved  by  the  aforesaid  order  of  acquittal,  the  

present appeal was filed by the State of Punjab on which we  

have heard the learned counsel appearing for the parties.  

8. The counsel  appearing  for  the  State  submitted  before  us  

that the order of acquittal is palpably wrong and perverse. It  

was also submitted that the findings recorded by the High  

Court  that  there  were  glaring  discrepancies  in  the  

prosecution case is based on irrelevant materials and that  

the order of acquittal was passed on frivolous grounds. It  

was  also  submitted  by  the  counsel  appearing  for  the  

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appellant that conscious possession of the illegal substance  

by the  respondents  was established and the said  finding  

having  not  been  discredited,  the  High  Court  was  not  

justified in interfering with the order of conviction recorded  

by the trial Court.  

9. In  order  to  appreciate  the  aforesaid  contention,  we  have  

gone  through  the  records.  The  discrepancies  which  are  

referred  to  by  the  High  Court  as  glaring  discrepancies  

appear to us to be very minor discrepancies which do not in  

any  manner  affect  the  sub-stratum  of  the  case  and  the  

offence alleged against the respondents. The High Court has  

held  that  both  the  respondents  were  required  to  be  

acquitted because Surinderpaljit  Singh [PW-3]  had stated  

that the seal was handed over to Gurnam Singh, Lamberdar  

of  village  Kakrala  whereas  the  Investigating  Officer  had  

stated that the seal was handed over to Sub-Inspector Ajaib  

Singh. The other ground which was considered and relied  

upon by the High Court for acquitting the respondents was  

that  the  DSP,  who  had been called  at  the  option  of  the  

respondents  who  wanted  to  be  searched  in  front  of  the  

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gazetted officer was not brought into the witness box and  

was  given  up  by  the  prosecution  as  being  unnecessary.  

Other grounds which have been recorded by the High Court  

for acquitting the respondents were that the police officials  

were travelling in a private jeep but the number of that jeep  

was  not  given  by  the  prosecution  and  that  the  Sub-

Inspector  Tejinder  Singh  [PW-4],  the  Investigation  Officer  

did not categorically say as to who was driving the jeep and  

who was the owner of the jeep.  The High Court has also  

held  that  the  delay  of  about  seven  days  in  sending  the  

samples  of  the  case  property  to  the  Forensic  Science  

Laboratory was fatal, inasmuch as in the intervening period  

tampering of the case property could have been easily done.  

For the aforesaid reasons, the High Court passed the order  

of acquittal.

10.Counsel appearing for the respondents disputed the fact of  

conscious  possession  by  the  respondents  and  submitted  

that  merely  because  the  respondents  were  sitting  on the  

bags  it  could  not  be  said  that  they  were  in  conscious  

possession of the bags. The expression “possession” came to  

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be  analysed  by  this  Court  in  several  decisions.  The  first  

case in point of time to which our attention was drawn is  

the decision in the case of  Inder Sain v.  State of  Punjab  

reported in (1973) 2 SCC 372. In the said decision also this  

Court was called upon to answer the question as to whether  

the  appellant  was  in  possession  of  opium.  In  the  said  

decision, this Court held that the word “possess” connotes  

some sort of knowledge about the thing possessed. It was  

also held that the prosecution must prove that accused was  

in control of something in the circumstances which showed  

that he was assenting to being in control of it. This Court  

further held that once it is proved by the prosecution that  

the accused was in physical custody of opium, it is for the  

accused to prove statutorily that he has not committed an  

offence by showing that he was not knowingly in possession  

of  opium.  Thus,  the  burden  of  proving  the  fact  that  the  

accused was not knowingly in possession of the contraband  

would lie on the shoulders of the accused person.

11.Section  15  of  the  NDPS  Act  makes  possession  of  

contraband  articles  an  offence.  Section  15  appears  in  

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Chapter  IV  of  the  Act  which  relates  to  the  offence  of  

possession of poppy straw.  

12.In  Madan  Lal  and  another v.  State  of  H.P. reported  in  

(2003) 7 SCC 465 this Court held that 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 of the same is within his special  

knowledge. It was also held in that case that Section 35 of  

the  Act  gives  a  statutory  recognition  to  this  position  by  

making it a statutory 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.  

13.In  Gunwantlal v.  State of M.P. reported in (1972) 2 SCC  

194 it  was held by this Court that 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 also is subject to such power or control.

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14.In the backdrop of the aforesaid settled position of law we  

have to examine the facts of the present case in order to  

hold as to whether or not the respondents could be said to  

have been in conscious possession of the contraband goods.  

Evidence was led by the prosecution to establish that the  

respondents  were  found  sitting  on  the  aforesaid  bags  of  

poppy husk. It was also stated by the Sub-Inspector as also  

the  Assistant  Sub-Inspector  that  the  presence  of  the  

accused respondents at such an early hour, i.e., 8.00 a.m.  

near a religious place with such large number of bags and  

their sitting on them and on seeing the police party their  

conduct of trying to hide themselves behind the bags prove  

and establish that they were in possession of the aforesaid  

bags.  The  very  fact  that  they  tried  to  hide  themselves  

behind the bags made the police party suspicious about the  

contents of the bags which led to a search of the said bags  

and on search being carried out in accordance with law, the  

aforesaid suspicion that the bags contained contraband was  

confirmed.  

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15.The  respondents,  during  the  trial,  could  not  give  any  

satisfactory  reply  as  to  how  and  why  they  came  from  

Haryana and were  found sitting  on bags  of  poppy husk.  

Their subsequent conduct of  hiding behind the bags also  

shows their guilty mind.

16.Reference could also be made to Exhibits PC and PD which  

are memos prepared by the Investigating Officer. In the said  

memos,  it  was  clearly  stated  that  the  contraband  was  

contained in the bags which were kept in the possession of  

the respondents. There were separate memos prepared and  

each  one  of  them  is  signed  by  the  two  respondents  

respectively  and  separately.   The  aforesaid  documents,  

therefore,  clearly  establish  that  the  respondents  were  in  

possession of the said contraband. The evidence adduced by  

both  the  Sub-Inspectors  as  also  by  the  Assistant  Sub-

Inspector  examined  as  PW-3  and  PW-4  also  prove  and  

establish  that  both  the  respondents  were  in  conscious  

possession of the contraband goods. So far as the seizure of  

the  contraband  goods  is  concerned,  the  discrepancies  

pointed out by the High Court in our opinion are very minor  

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and they are not very material. The prosecution has been  

able to establish and prove that the aforesaid bags which  

were 35 in number contained poppy husk and accordingly  

the same were seized after taking samples therefrom which  

were  properly  sealed.  The  defence  has  not  been  able  to  

prove that the aforesaid seizure and seal put in the samples  

were in any manner tampered with before it was examined  

by  the  Chemical  Examiner.  There  was  merely  a  delay  of  

about seven days in sending the samples to the Forensic  

Examiner and it is not proved as to how the aforesaid delay  

of  seven days  has  affected  the  said  examination when it  

could not be proved that the seal of the sample was in any  

manner tampered with. The seal having been found intact  

at the time of the examination by the Chemical Examiner  

and the said fact having been recorded in his report, a mere  

observation by the High Court that the case property might  

have  been  tampered  with,  in  our  opinion  is  based  on  

surmises  and  conjectures  and  cannot  take  the  place  of  

proof.  

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17.We may at this stage refer to a decision of this Court in  

Hardip Singh v.  State of Punjab reported in (2008) 8 SCC  

557  in which there was a delay of about 40 days in sending  

the sample to laboratory after the same was seized. In the  

said decision, it was held that in view of cogent and reliable  

evidence that the opium was seized and sealed and that the  

samples  were  intact  till  they  were  handed  over  to  the  

Chemical Examiner, the delay itself was held to be not fatal  

to the prosecution case. In our considered opinion, the ratio  

of the aforesaid decision squarely applies to the facts of the  

present case in this regard.   

18.The case property was produced in the Court and there is  

no evidence to show that the same was ever tampered with.  

19.Considering the facts and circumstances of  the case,  we  

are of  the considered opinion that the view taken by the  

High Court is palpably wrong and the findings recorded are  

also  perverse.  In  our  considered  opinion,  the  aforesaid  

reasons  which  are  stated  hereinabove  are  sufficient  and  

cogent  grounds  to  disturb  the  acquittal.  Accordingly,  the  

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judgment and order passed by the High Court is set aside  

and the order of the trial Court is restored.

20.The  respondents,  if  at  liberty,  are  hereby  directed  to  

surrender  forthwith  and  undergo  the  remaining  term  of  

imprisonment  as  directed  by  the  trial  Court.  The  appeal  

stands disposed of in terms of the aforesaid order.  

 …….……………..…………J.  [Dr. Mukundakam Sharma]

…..…………………………….J.  [A.K. Patnaik]

NEW DELHI APRIL 5, 2010.

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