Dharampal Singh vs State Of Punjab

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 3

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 4

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 5

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 6

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, 7 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 8

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:

9

"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 10

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 11

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 12

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 13

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 14

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 15

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 16

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 17

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.

18

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 19

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.

20

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.