Full Judgment Text
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CASE NO.:
Appeal (crl.) 786 of 2002
PETITIONER:
Madan Lal and Anr.
RESPONDENT:
Vs.
State of Himachal Pradesh
DATE OF JUDGMENT: 19/08/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
WITH
CRIMINAL APPEAL NOS. 788/2002 AND 905/2003
ARIJIT PASAYAT,J
Since these three appeals involve identical issues they are
disposed of by this common judgment.
The appellants and one other person faced trial for alleged
commission of offence punishable under Section 20 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (in short ’the Act’).
All the five accused were found guilty of the alleged offence and
all of them were sentenced to undergo rigorous imprisonment for a term
of 10 years and to pay a fine of Rs.1 lakh with a default stipulation
of a further rigorous imprisonment of 3 months in case of default to
pay the fine.
By the impugned judgment the High Court of Himachal Pradesh at
Shimla dismissed the appeals filed by the accused appellants.
In appeal Nos. 786/2002 and 788/2002 at the Special Leave
Petition stage, there were four petitioners. The special leave petition
so far as petitioner Goyal Nath is concerned was dismissed by an order
dated 5.8.2002.
Accusations which led to the trial of the accused appellants in a
nutshell is as follows:
On 5.10.1999, a secret telephonic message was recorded by Sunder
Lal, A.S.P. (PW-11) that charas was being transported in a Maruti
Esteem blue car bearing No.CHO-IE-2764 which was coming towards
Oachghat. The information was reduced by him into writing. He gave
directions to the SHO, Police Station, Solan to send the information
to the Superintendent of Police and thereafter proceeded towards the
spot where the car was expected to come. On reaching the spot, he
formed a raiding party consisting of Jainarain (PW-1) and Ashwani Kumar
Gupta (PW-2) and the car was stopped by the raiding party. Accused,
Manjit Singh was driving the car and the remaining accused persons were
sitting therein. In the presence of witnesses, Jainarain (PW-1) gave an
option to the accused persons as to whether they wanted to be searched
by a Magistrate or by him. Accused appellants consented for the search
by Jainarain (PW-1). On personal search of the accused persons nothing
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incriminating was found on their person. When the car was searched, a
black coloured bag was found which contained a steel doloo kept in a
plastic bag. The said doloo contained 820 grams of charas. After
separating two samples of 25 grams each the remaining charas were
separately sealed and samples were sent to the Officer Incharge, Police
Station, Solan for registration of a case. On the basis of the
information FIR was recorded at the Police Station. The car along with
the documents and the key were also seized. The sealed parcels of the
case property were handed over to the SHO (PW-9) who re-sealed them.
The samples were analysed by the Chemical Examiner who filed a report
vide Ext.PW-10/A with the finding that the samples were that of charas.
On being satisfied about commission of offence under Section 20 of the
Act, a charge sheet was submitted. After framing of charge, the accused
persons faced trial.
To substantiate its accusation, prosecution examined 11
witnesses. The accused appellants pleaded innocence. On consideration
of the evidence on record, the accused persons were convicted and
sentenced as aforesaid. The appeals preferred by the accused
appellants were dismissed by the impugned judgment.
Mrs. Subhadra Chaturvedi, learned amicus curiae appearing for the
accused appellants submitted that the prosecution was totally without
basis and there were several
irretrievable infractions of statutory provisions which render the
trial vitiated and consequently the judgments are unsustainable.
Firstly, it was submitted that the mandatory requirements of
Sections 42 and 50 were not complied with. Further, the officials had
tampered with the samples as the weight of the sample was less than
what was indicated.
Elaborating the different pleas, it was submitted that there was
no material to show that the information which was required to be
transmitted to the superior authority was so done. Further, the finding
that there was no requirement to comply with the requirement of Section
50 when a vehicle has been searched is not correct. When accused Goyal
Nath whose SLP has been dismissed, admitted that the seized charas
belonged to him, other accused appellants should not have been
convicted. There was no material to prove that there was any conscious
possession of the contraband articles.
In case of accused-appellant Manjit Singh it was additionally
submitted that he was only the driver of the vehicle and was not
supposed to know what the other occupants were bringing.
In response, it was submitted by learned Additional Advocate
General appearing for the State of Himachal Pradesh that all the points
presently urged were considered by the Trial Court and the High Court,
and after detailed analysis of the legal and factual position have been
rightly rejected.
The first aspect which needs to be considered is whether there
was any non-compliance of Sections 42 and 50 of the Act as pleaded. So
far as these two provisions are concerned, they read as follows:
"Section 42: Power of entry, search, seizure and
arrest without warrant or authorization:
(1) Any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the
departments of central excise, narcotics, customs,
revenue intelligence or any other department of the
Central Government including para-military forces or
armed forces as is empowered in this behalf by
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general or special order by the Central Government,
or any such officer (being an officer superior in
rank to a peon, sepoy or constable)of the revenue,
drugs control, excise, police or any other
department of a State Government as is empowered in
this behalf by general or special order of the State
Government, if he has reason to believe from persons
knowledge or information given by any person and
taken down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in
respect of which an offence punishable under this
Act has been committed or any document or other
article which may furnish evidence of the commission
of such offence or any illegally acquired property
or any document or other article which may furnish
evidence of holding any illegally acquired property
which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is kept or
concealed in any building, conveyance or enclosed
place, may between sunrise and sunset,-
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any
door and remove any obstacle to such entry;
(c) seize such drug or substance and all
materials used in the manufacture thereof and any
other article and any animal or conveyance which he
has reason to believe to be liable to confiscation
under this Act and any document or other article
which he has reason to believe may furnish evidence
of the commission of any offence punishable under
this Act or furnish evidence of holding any
illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA
of this Act; and
(d) detain and search, and, if he thinks
proper, arrest any person whom he has reason to
believe to have committed any offence punishable
under this Act.
Provided that if such officer has reason to
believe that a search warrant or authorization
cannot be obtained without affording opportunity for
the concealment or evidence or facility for the
escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time
between sunset and sunrise after recording the
grounds of his belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for
his belief under the proviso thereto, he shall
within seventy-two hours send a copy thereof to his
immediate official superior.
Section 50: Conditions under which search of persons
shall be conducted-
(1) When any officer duly authorized under Section
42 is about to search any person under the
provisions of Section 41, section 42 or section 43,
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he shall, if such person so requires, take such
person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned
in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may
detain the person until he can bring him before the
Gazetted Officer or the Magistrate referred to in
sub-section (1).
(3) The Gazetted Officer or the Magistrate before
whom any such person is brought shall, if he sees no
reasonable ground for search, forthwith discharge
the person but otherwise shall direct that search be
made.
(4) No female shall be searched by anyone
excepting a female.
(5) When an officer duly authorized under section
42 has reason to believe that it is not possible to
take the person to be searched to the nearest
Gazetted Officer or Magistrate without the
possibility of the person to be searched parting
with possession of any narcotic drug or psychotropic
substance, or controlled substance or article or
document, he may, instead of taking such person to
the nearest Gazetted Officer or Magistrate, proceed
to search the person as provided under section 100
of the Code of Criminal Procedure, 1973(2 of 1974).
(6) After a search is conducted under sub-section
(5), the officer shall record the reasons for such
belief which necessitated such search and within
seventy-two hours send a copy thereof to his
immediate official superior."
The evidence of the witnesses i.e. PWs. 5, 8 and 11 throw
considerable light on this controversy. In fact the original register
which recorded the transmission of the information to the
Superintendent of Police was perused by the High Court. On 27.12.2000
after perusing the register, the High Court noted that there was no
over-writing or cutting in respect of the relevant entries. Constable
(PW-8) has stated that he had taken a copy of the daily diary regarding
receipt of information about transportation of charas (Ext.PW-5/A) and
handed over to the reader of the Superintendent of Police at 10.40 a.m.
the relevant document. PW-5 has corroborated this statement of PW-8
about delivery of the copy of information and he has stated that the
same was placed before the concerned Superintendent of Police. In other
words, the materials clearly establish that the information was sent
without delay to the immediate superior officer of PW-11 i.e.
Superintendent of Police. That being the position, contention regarding
non-compliance of provisions of Section 42 is clearly without
substance.
Now comes the question whether there was non-compliance of
Section 50 of the Act.
A bare reading of Section 50 shows that it only applies in case
of personal search of a person. It does not extend to search of a
vehicle or a container or a bag, or premises.(See Kalema Tumba v. State
of Maharashtra and Anr. (JT 1999 (8) SC 293), The State of Punjab v.
Baldev Singh (JT 1999 (4) SC 595), Gurbax Singh v. State of Haryana
(2001(3) SCC 28). The language of Section 50 is implicitly clear that
the search has to be in relation to a person as contrasted to search of
premises, vehicles or articles. This position was settled beyond doubt
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by the Constitution Bench in Baldev Singh’s case (supra). Above being
the position, the contention regarding non-compliance of Section 50 of
the Act is also without any substance.
Coming to the plea that there was reduction in weight of the
samples sent for analysis and there was tampering, it has to be noted
that this aspect has also been considered by the Trial Court which has
recorded the reasons for rejecting the same. It has been noted that
the seals were intact and there was no tampering. The view has been
endorsed by the High Court. On considering the reasoning indicated
that there was very minimal and almost ignorable variation in weight,
we find no reason to interfere with the findings.
The other plea which was emphasized was the alleged statement of
accused Goyal Nath that he alone was in possession of the contraband
bags. The plea centers round a statement of search witness PW-1, who
stated that Goyal Nath told him that contraband articles belonged to
him. The statement was made totally out of context and no credence can
at all be attached to the statement. The accused Goyal Nath in his
examination under Section 313 of the Code of Criminal Procedure, 1973
(in short the ’Code’) did not state that he was alone in possession of
the contraband articles. On the contrary, he stated that he did not
know anything about the alleged seizure.
Whether there was conscious possession has to be determined with
reference to the factual backdrop. The facts which can be culled out
from the evidence on record is that all the accused persons were
traveling in a vehicle and as noted by the Trial Court they were known
to each other and it has not been explained or shown as to how they
travelled together from the same destination in a vehicle which was not
a public vehicle.
Section 20(b) makes possession of contraband articles an
offence. Section 20 appears in chapter IV of the Act which relates to
offence for possession of such articles. It is submitted that in order
to make the possession illicit, there must be a conscious possession.
It is highlighted that unless the possession was coupled with
requisite mental element, i.e. conscious possession and not mere
custody without awareness of the nature of such possession, Section 20
is not attracted.
The expression ’possession’ is a polymorphous term which assumes
different colours in different contexts. It may carry different
meanings in contextually different backgrounds. It is impossible, as
was observed in Superintendent & Remembrancer of Legal Affairs, West
Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a
completely logical and precise definition of "possession" uniformally
applicable to all situations in the context of all statutes.
The word ’conscious’ means awareness about a particular fact. It
is a state of mind which is deliberate or intended.
As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756)
possession in a given case need not be physical possession but can be
constructive, having power and control over the article in case in
question, while the person whom physical possession is given holds it
subject to that power or control.
The word ’possession’ means the legal right to possession (See
Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it
was observed that where a person keeps his fire arm in his mother’s
flat which is safer than his own home, he must be considered to be in
possession of the same. (See Sullivan v. Earl of Caithness (1976 (1)
All ER 844 (QBD).
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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 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.
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 the
logical background of Sections 35 and 54 of the Act.
In fact the evidence clearly establishes that they knew about
transportation of charas, and each had a role in the transportation and
possession with conscious knowledge of what they are doing. The
accused-appellant Manjit Singh does not stand on a different footing
merely because he was a driver of the vehicle. The logic applicable to
other accused-appellants also applies to Manjit Singh.
Therefore, the presumption available by application of logic
flowing from Sections 35 and 54 of the Act clearly applies to the facts
of the present case. The judgments of the Trial Court and the High
Court suffer from no infirmity to warrant interference. The appeals
deserve dismissal, which we direct.