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Monday, April 20, 2015

Narcotic Drugs and Psychotropic Substances Act 1985 (for short, 'the NDPS Act') - delay in sending the samples of opium to the FSL, opined that it was of no consequence, for the fact of the recovery of the said sample from the possession of the appellant had been proven and established by cogent and reliable evidence and that apart, it had also come in evidence that till the date of parcels of samples were received by the Chemical Examiner, the seal put on that parcel was intact. Under these circumstances, the Court ruled that the said facts clearly proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the appellant. The plea that there was 40 days delay was immaterial and would not dent the prosecution case.

                        IN THE SUPREME COURT OF INDIA


                     CRIMINAL APPEAL NO.    1393 OF 2010

Mohan Lal                                    ... Appellant


State of Rajasthan                                ...Respondent

                               J U D G M E N T

Dipak Misra, J.

Calling in question the legal pregnability of the judgment and  order  dated
16.7.09 passed by the learned Single Judge of the High Court  of  Judicature
of Rajasthan at Jodhpur whereby the learned Single Judge  has  affirmed  the
conviction and sentence recorded by the learned Additional  Sessions  Judge,
Jodhpur in Sessions Case No.  9  of  1986  convicting  the  appellant  under
Section 18 of the Narcotic Drugs and Psychotropic Substances Act  1985  (for
short, 'the NDPS Act') and sentencing him to  suffer  rigorous  imprisonment
for 10 years and pay a fine of Rs. 1 lakh, in default, to  suffer  one  year
simple imprisonment and also for offence punishable under Sections  457  and
380 of the Indian Penal Code (IPC) and imposing separate sentences  for  the
said  offences  with  a  stipulation  that  all  the  sentences  would   run
2.    The relevant  facts  giving  rise  to  the  prosecution  are  that  on
13.11.1985, at 9.30 a.m., Bhanwarlal, PW-8,  posted  in  the  Court  of  the
Magistrate, Osian, lodged an FIR, exhibit  P-3,  at  Police  Station,  Osian
informing that when he went to the Court to meet  the  night  chowkidar,  he
was absent and it was found by him that  locks  of  the  main  gate  of  the
malkhana were broken and the  goods  were  scattered.   An  information  was
given at the concerned police station, but as  the  details  of  the  stolen
articles could only be provided by the Criminal Clerk  after  he  came  from
the Diwali holidays, an FIR was lodged for  an  offence  under  Section  457
IPC.  After the courts reopened, the Presiding Officer, Ummed  Singh,  PW-6,
on being informed, visited the premises, got malkhana articles verified  and
got an inventory prepared by Narain  Singh,  Criminal  Clerk,  in-charge  of
Malkhana, PW-4, on 16.11.1985, and it was found that 10 kgs. 420  gms  opium
and some other articles were stolen from  several  packets.   In  course  of
investigation,  the  accused  Mohan  Lal  was  arrested  for   the   offence
punishable under Sections 457 and  380  IPC.    While  in  custody,  it  was
informed by him that he had broke open the  lock  of  the  malkhana  of  the
Court and stolen the opium and kept it in a white bag and concealed it in  a
pit dug by him underneath a small bridge situate between  Gupal  Sariya  and
Madiyai.  His disclosure statement has been brought on record as Exhibit  P-
14A.  The accused-appellant led to  discovery  in  presence  of  independent
witnesses.  The bag and cloth were taken out by the accused digging the  pit
and the bag contained 10 kgs and 200 gms  of  opium  as  is  reflected  from
seizure memo, Exhibit P-6.  200 gms of opium was packed  separately,  sealed
and sent for FSL examination.  The remaining substance and other items  were
separately sealed.  After  receiving  the  FSL  report  and  completing  the
investigation, chargesheet under Section 18 of the  NDPS  act  and  Sections
457 and  380  of  the  IPC  was  filed  before  the  appropriate  Court  and
eventually the matter travelled  to  the  Court  of  Session.   The  accused
pleaded not guilty and claimed to be tried.
3.    The prosecution, in order to substantiate  the  charges,  examined  14
witnesses.  The  main  witnesses  are  Ummed  Singh,  PW-6,  the  concerned,
Magistrate, Narain Singh, PW-4, the Criminal Clerk, in-charge of   Malkhana,
ASI, Achlu Ram, PW-13, ASI Hanuman Singh,  PW-3,   Koja  Ram,  PW-10,  Gulab
Singh, PW-14, and Su-Inspector-cum-SHO, Bheem Singh, PW-12 are witnesses  to
the recovery.  The FSL report was exhibited as Exhibit  P-14.   The  defence
chose not to examine any witness.
4.    The learned trial Judge, on the  basis  of  the  evidence  brought  on
record, found the accused guilty of the charges  and  accordingly  convicted
him, as has been stated hereinbefore.  In  appeal,  it  was  contended  that
incident, as per the prosecution, had occurred between  12th/13th  November,
1985 on which date the NDPS Act was not in force, for  it  came  into  force
only on 14.11.1985 and hence, the offence was  punishable  under  the  Opium
Act, 1878, (for short 'the Opium Act'); that the  alleged  recovery  was  on
16.1.1985 while the appellant was in custody in connection with FIR  No.  95
of 1986 and not in custody in connection with this case i.e. FIR No.  96  of
1985; that recovery of disclosure at the instance of  the  accused-appellant
had not been proven and  that  he  was  never  in  possession  of  the  said
articles, and that there has been total non-compliance of Section 42 and  57
of the NDPS Act and, therefore, the conviction was  vitiated  in  law.   The
High Court repelled all the submissions  and  affirmed  the  conviction  and
sentence as recorded by the learned trial Judge.
5.    We have heard Ms. Aishwarya Bhati, learned counsel for  the  appellant
and Mr. Shiv Mangal Sharma, learned  Additional  Advocate  General  for  the
State of Rajasthan.
6.    First, we shall deal with  the  issue  of  possession.  The  principal
submission of Ms. Bhati, learned counsel  for  the  appellant  is  that  the
appellant  cannot  be  convicted  and  punished  under  the  NDPS  Act  when
admittedly the theft of contraband substance was prior to coming into  force
of the NDPS Act, for the FIR was lodged prior to coming into  force  of  the
NDPS Act.  Learned counsel  would  submit  that  offence  of  possession  of
contraband substance also commenced prior to coming into force of  NDPS  Act
as the FIR would  clearly  reveal  that  the  theft  was  committed  on  the
intervening night of 12th/13th November, 1985, whereas  the  NDPS  Act  came
into force on 14.11.1985.  Learned counsel would submit  that  the  recovery
of opium was done on 16.1.1986 pursuant to the disclosure statement made  by
the accused-appellant who was already under arrest  in  a  different  matter
and under such circumstances, the appellant could not  have  been  convicted
under Section 18 of the NDPS Act,  but  should  have  been  convicted  under
Section 9 of the Opium Act.  Elaborating the said  submission,  the  learned
counsel  has  contended  that  the  offence  of  possession  of   contraband
substance was punishable under both the laws but there is a huge  difference
in the sentence prescribed.  Under Section 9 of the Opium Act, the  sentence
was extendable to one year whereas under Section 18 of  the  NDPS  Act,  the
prescribed punishment is minimum 10 years  apart  from  imposition  of  huge
fine.  Learned counsel would submit that it  is  the  settled  principle  of
criminal jurisprudence that the accused cannot  be  subject  to  an  offence
under a new Act which was not  in  force  on  the  date  of  theft  and  the
possession of contraband articles, as a matter  of  fact,  had  taken  place
prior to coming into force of the NDPS Act.   She has commended  us  to  the
decision in Harjit Singh v. State of Punjab[1].  Learned counsel would  also
contend that there can be rationalization of structure of punishment,  which
is an ameliorative provision, for it reduces the  punishment  and  the  same
can be made applicable to category of accused persons.  In that regard,  she
has drawn inspiration from Rattan Lal v. State of  Punjab[2],  T.  Barai  v.
Henry Ah Hoe[3], Basheer v. State of Kerala[4] and Pratap Singh v. State  of
Jharkhand[5].  Pyramiding the said facet, it is urged by Ms. Bhati  that  in
the instant case, the sentence being higher for the  offence  of  possession
under the  NDPS  Act,  such  a  provision  cannot  be  made  retrospectively
applicable to him.  To appreciate the said submission, it is appropriate  to
refer to Section 9 of the Opium Act.  It reads as follows:-
"9. Penalty for illegal cultivation poppy, etc.
Any person who, in contravention of this Act, or of rules made and  notified
under section 5 or Section 8,-

(a)  possesses opium, or
(b)  transports opium, or
(c)  imports or exports opium, or
(d)  sells opium, or
(e)  omits to warehouse opium, or removes or does  any  act  in  respect  of
warehoused opium,

And  any  person  who  otherwise  contravenes  any  such  rule,  shall,   on
conviction before a Magistrate, be  punished  for  each  such  offence  with
imprisonment for a term which may extend to one year,  or  with  fine  which
may extend to one thousand rupees, or with both;

And, where a fine is imposed, the convicting  Magistrate  shall  direct  the
offender to be imprisoned in default of payment  of  the  fine  for  a  term
which may extend to six months, and such imprisonment shall be in excess  of
any other imprisonment to which he may have been sentenced."

7.    On a perusal of the aforesaid provision, the possession  of  opium  is
an offence and the sentence is imprisonment for a term which may  extend  to
one year or with fine which may extend to Rs.1,000/- or  both.   Section  18
of the NDPS Act provides for punishment for  contravention  in  relation  to
opium poppy and opium.  The provision as it stood at the relevant time  read
as follows:
"18. Punishment for contravention in relation to  opium  poppy  and  opium.-
Whoever, in contravention of any provision of  this  Act,  or  any  rule  or
order made or condition of licence granted thereunder cultivates  the  opium
poppy or produces, manufactures, possesses,  sells,  purchases,  transports,
imports inter-State, exports inter-State or uses opium shall  be  punishable
with rigorous imprisonment for a term which  shall  not  be  less  than  ten
years but which may extend to twenty-years and shall also be liable to  fine
which shall not be less than one lakh rupees but which  may  extend  to  two
lakh rupees :

      Provided that the Court  may,  for  reasons  to  be  recorded  in  the
judgment, impose a fine exceeding two lakh rupees."

8.    When one conceives of possession, it appears in the strict sense  that
the concept of possession is  basically  connected  to  "actus  of  physical
control and custody".  Attributing this meaning in the  strict  sense  would
be understanding the factum of possession  in  a  narrow  sense.   With  the
passage of time there has been a gradual widening of  the  concept  and  the
quintessential meaning of the word possession.    The  classical  theory  of
English law on the term "possession" is fundamentally dominated by  Savigny-
ian "corpus" and "animus" doctrine.   Distinction  has  also  been  made  in
"possession  in  fact"  and  "possession  in  law"  and  sometimes   between
"corporeal  possession"  and  "possession  of   right"   which   is   called
"incorporeal possession".  Thus, there is a degree  of  flexibility  in  the
use of the said term and that is why the word  possession  can  be  usefully
defined and understood with reference to  the  contextual  purpose  for  the
said  expression.   The  word  possession  may  have  one  meaning  in   one
connection and another meaning in another.
9.    The term "possession" consists of two elements.   First, it refers  to
the corpus or the physical control and the second, it refers to  the  animus
or intent which has reference to exercise of the said control.   One of  the
definitions of possession given in Black's Law dictionary is as follows:
"Having control over a thing with the intent to have and  to  exercise  such
control.  Oswald v. Weigel[6].  The detention and control or the  manual  or
ideal custody, of anything which may be the subject of property,  for  one's
use and enjoyment, either as owner or  as  the  proprietor  of  a  qualified
right in it, and either held personally or by another who  exercises  it  in
one's place and name.  Act or state of possessing.  That condition of  facts
under which one can exercise  his  power  over  a  corporeal  thing  at  his
pleasure to the exclusion of  all  other  persons.   The  law,  in  general,
recognizes two kinds  of  possession:  actual  possession  and  constructive
possession.  A person who knowingly  has  direct  physical  control  over  a
thing, at a given time, is then in actual possession of it.  A  person  who,
although not in actual possession, knowingly has  both  the  power  and  the
intention at given time to  exercise  dominion  or  control  over  a  thing,
either  directly  or  through  another  person  or  persons,  is   then   in
constructive possession of it.  The law recognizes also that possession  may
be  sole  or  joint.   If  one  person  alone  has  actual  or  constructive
possession of a thing, possession is sole.  If two  or  more  persons  share
actual or constructive possession of a thing, possession is joint."

      In the said dictionary, the term "possess" in the context of  narcotic
drug law means:-
"Term "possess." Under narcotic drug laws, means actual  control,  care  and
management  of  the  drug.   Collini  v.  State[7].  Defendant   'possesses'
controlled  substance  when  defendant  knows   of   substance's   presence,
substance is immediately accessible, and defendant  exercises  "dominion  or
control" over substance. State v. Hornaday[8]."

      And again
"Possession  as  necessary  for  conviction  of  offense  of  possession  of
controlled substances with intent to distribute may be constructive as  well
as actual, U.S. v. Craig[9]; as  well  as  joint  or  exclusive,  Garvey  v.
State[10].  The defendants must have  had  dominion  and  control  over  the
contraband with knowledge of its presence and character.  U.S,  v.  Morando-

Possession, as an element of offense of stolen  goods,  is  not  limited  to
actual manual control upon or about the person, but extends to things  under
one's power and dominion. McConnell v. State[12].

Possession as used in indictment charging  possession  of  stolen  mail  may
mean actual possession or constructive possession.  U.S. v. Ellison[13].

To constitute "possession" of a concealable weapon under statue  proscribing
possession of a concealable  weapon  by  a  felon,  it  is  sufficient  that
defendant have constructive possession and immediate access to  the  weapon.
State v. Kelley[14]."

10.   In Stroud's dictionary,  the  term  possession  has  been  defined  as
""Possession" (Drugs (Prevention of Misuse) Act 1964 (c. 64), s.1  (1)).   A
person does not lose "possession" of an article which is mislaid or  thought
erroneously to have been destroyed or disposed of, if, in fact,  it  remains
in his care and control (R. v. Buswell[15]).

11.   Dr. Harris, in his essay titled "The Concept of Possession in  English
Law[16]" while discussing the  various  rules  relating  to  possession  has
stated that "possession" is a functional and relative concept,  which  gives
the Judges some discretion in applying abstract rule to a  concrete  set  of
facts.  The learned author has suggested certain  factors  which  have  been
held to be relevant to conclude whether a  person  has  acquired  possession
for the purposes of a particular rule of law.  Some of the factors  enlisted
by him are; (a) degree of  physical  control  exercised  by  person  over  a
thing, (b) knowledge of the person claiming possessory rights over a  thing,
about the attributes and qualities of the thing, (c) the persons'  intention
in regard to the thing, that is, 'animus possessionis' and 'animus  domini',
(d) possession of land on which the thing is  claimed  is  lying;  also  the
relevant intention of the occupier of a  premises  on  which  the  thing  is
lying thereon to exclude others from enjoying the land  and  anything  which
happens to be lying there; and Judges' concept of the social purpose of  the
particular rule relied upon  by  the  plaintiff.   The  learned  author  has
further  proceeded  to  state  that  quite  naturally  the  policies  behind
different possessory rules will vary and it would justify the courts  giving
varying weight to different factors relevant to possession according to  the
particular rule in question.   According to Harris, the Judges have  at  the
back of their mind a perfect pattern in which the  possessor  has  complete,
exclusive  and  unchallenged  physical  control  over  the   subject;   full
knowledge  of  its  existence;  attributes  and  location,  and  a  manifest
intention to act as its owner and exclude all others from it.  As a  further
statement he elucidates that courts  realise  that  justice  and  expediency
compel constant modification of the  ideal  pattern.   The  person  claiming
possessory rights over a thing may have a very limited  degree  of  physical
control over the object or he may have no intention in regard to  an  object
of whose existence he is unaware of, though he exercises  control  over  the
same or he may have  clear  intention  to  exclude  other  people  from  the
object, though he has no physical  control  over  the  same.   In  all  this
variegated situation, states Harris,  the  person  concerned  may  still  be
conferred  the  possessory  rights.    The  purpose  of  referring  to   the
aforesaid principles and passages is that over the years, it has  been  seen
that courts have refrained from  adopting  a  doctrinaire  approach  towards
defining possession.  A functional and flexible  approach  in  defining  and
understanding  the  possession  as  a  concept  is  acceptable  and  thereby
emphasis has been laid on  different  possessory  rights  according  to  the
commands and justice of the social policy.  Thus, the word  "possession"  in
the context of any enactment would depend upon the  object  and  purpose  of
the enactment and an appropriate meaning has to be assigned to the  word  to
effectuate the said object.
12.   Coming to the context of Section 18 of the NDPS
Act, it would have a reference to the concept of conscious possession.   The
legislature while enacting the said law was absolutely  aware  of  the  said
element and that the word "possession"  refers  to  a  mental  state  as  is
noticeable from the language employed in Section 35 of the  NDPS  Act.   The
said provision reads as follows:-
"35. Presumption of culpable mental state. - (1) In any prosecution  for  an
offence under this Act  which  requires  a  culpable  mental  state  of  the
accused, the Court shall presume the existence of such mental state  but  it
shall be a defence for the accused to prove the fact that  he  had  no  such
mental state with  respect  to  the  act  charged  as  an  offence  in  that

Explanation. - In this section "culpable mental state"  includes  intention,
motive, knowledge, of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved  only  when
the Court believes it to exist beyond a  reasonable  doubt  and  not  merely
when its existence is established by a preponderance of probability."

      On a perusal of the aforesaid provision, it is plain as  day  that  it
includes knowledge of a fact.  That apart, Section 35 raises  a  presumption
as to knowledge and culpable mental state from  the  possession  of  illicit
articles. The expression "possess or possessed" is often used in  connection
with statutory offences of being  in  possession  of  prohibited  drugs  and
contraband  substances.   Conscious  or  mental  state  of   possession   is
necessary and that is the reason for enacting Section 35 of the NDPS Act.
13.   In Noor Aga v. State of Punjab and Anr.[17], the Court  noted  Section
35 of the NDPS Act which provides for presumption of culpable  mental  state
and further noted that it also provides that the accused may prove  that  he
had no such mental state with respect to  the  act  charged  as  an  offence
under the prosecution.  The Court also referred to Section 54  of  the  NDPS
Act which places the burden to prove on the accused  as  regards  possession
of the contraband articles on account of the same  satisfactorily.   Dealing
with the constitutional validity of Section 35 and 54 of the NDPS  Act,  the
Court ruled thus:-
"The provisions of Section 35 of the Act as  also  Section  54  thereof,  in
view of the decisions of this Court, therefore, cannot  be  said  to  be  ex
facie unconstitutional. We would, however, keeping in  view  the  principles
noticed hereinbefore, examine the effect thereof vis--vis the  question  as
to  whether  the  prosecution  has  been  able  to  discharge   its   burden

      And thereafter proceeded to state that:-
"58. Sections 35 and 54 of  the  Act,  no  doubt,  raise  presumptions  with
regard to the culpable mental state on the  part  of  the  accused  as  also
place the burden of proof in this behalf on the accused; but a bare  perusal
of the said provision would clearly show that presumption would  operate  in
the trial of the accused only  in  the  event  the  circumstances  contained
therein are fully satisfied. An initial burden exists upon  the  prosecution
and only when it stands satisfied, would the legal burden shift. Even  then,
the standard of proof required for the accused to  prove  his  innocence  is
not as high as that of  the  prosecution.  Whereas  the  standard  of  proof
required to prove the guilt of the accused on  the  prosecution  is  "beyond
all reasonable doubt" but  it  is  "preponderance  of  probability"  on  the
accused. If the prosecution fails to prove the foundational facts so  as  to
attract the rigours of Section 35 of  the  Act,  the  actus  reus  which  is
possession of contraband  by  the  accused  cannot  be  said  to  have  been

59. With a view to bring within its purview the requirements of  Section  54
of the Act, element of possession of the contraband was essential so  as  to
shift the burden on the accused. The  provisions  being  exceptions  to  the
general rule,  the  generality  thereof  would  continue  to  be  operative,
namely, the element of possession will have to be proved  beyond  reasonable

14.   In Bhola Singh v. State of Punjab[18], the Court, after  referring  to
the pronouncement in Noor Aga (supra), concurred with the  observation  that
only after the prosecution has discharged the initial burden  to  prove  the
foundational facts, then only  Section  35  would  come  into  play.   While
dislodging the conviction, the Court stated:-
" .... it is apparent that the initial burden to prove  that  the  appellant
had the knowledge that the vehicle he owned was being used for  transporting
narcotics still lay on the prosecution, as would  be  clear  from  the  word
"knowingly", and it was only after the  evidence  proved  beyond  reasonable
doubt that he had the knowledge  would  the  presumption  under  Section  35
arise. Section 35 also presupposes that the  culpable  mental  state  of  an
accused has to be proved as a fact  beyond  [pic]reasonable  doubt  and  not
merely  when  its  existence  is   established   by   a   preponderance   of
probabilities. We are of the opinion that in the  absence  of  any  evidence
with regard to the mental  state  of  the  appellant  no  presumption  under
Section 35 can be drawn. The only evidence which the  prosecution  seeks  to
rely on is the appellant's conduct in  giving  his  residential  address  in
Rajasthan  although  he  was  a  resident  of  Fatehabad  in  Haryana  while
registering the offending truck cannot by any stretch of imagination  fasten
him with the knowledge of its misuse by the driver and others."

15.   Having noted the approach in the aforesaid  two  cases,  we  may  take
note of the decision in Dharampal Singh v.  State  of  Punja[19],  when  the
Court was referring  to  the  expression  "possession"  in  the  context  of
Section 18 of the NDPS Act.  In the said case opium was found in  the  dicky
of the car when the appellant was driving himself  and  the  contention  was
canvassed that the said act would not establish  conscious  possession.   In
support of the said submission, reliance was placed on Avtar Singh v.  State
of Punjab[20] and Sorabkhan Gandhkhan Pathan v. State of  Gujarat[21].   The
Court, repelling the argument, opined thus:-
"12. We do not  find  any  substance  in  this  submission  of  the  learned
counsel. The appellant Dharampal Singh was found  driving  the  car  whereas
[pic]appellant Major Singh was travelling with him and  from  the  dicky  of
the car 65 kg 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  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   the
prosecution and once it is  discharged  legal  burden  would  shift  on  the
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
plea of the accused 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

13. It needs no emphasis that the expression "possession" is not capable  of
precise and completely logical definition of universal  application  in  the
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.

            xxx        xxx        xxx        xxx

15. 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 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 satisfactorily account for the possession of opium.
16. 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
Madan Lal v. State of H.P.[22], wherein it has been held  as  follows:  (SCC
p. 472, paras 26-27)

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

16.   From the aforesaid exposition of law it is quite vivid that  the  term
"possession" for the purpose of Section  18  of  the  NDPS  Act  could  mean
physical possession with animus, custody or  dominion  over  the  prohibited
substance with animus or even exercise of dominion and control as  a  result
of concealment.  The animus and the mental intent which is the  primary  and
significant element to show and  establish  possession.   Further,  personal
knowledge as to the existence of the "chattel" i.e.  the  illegal  substance
at a particular location or site, at  a  relevant  time  and  the  intention
based upon the knowledge,  would  constitute  the  unique  relationship  and
manifest possession.   In  such  a  situation,  presence  and  existence  of
possession could be justified, for the intention is to exercise  right  over
the substance or the chattel and to act as the owner  to  the  exclusion  of
others.  In the case at hand, the appellant,  we  hold,  had  the  requisite
degree of control when, even if the said narcotic substance was  not  within
his physical control at that moment.  To  give  an  example,  a  person  can
conceal  prohibited  narcotic  substance  in  a  property   and   move   out
thereafter.  The said  person  because  of  necessary  animus  would  be  in
possession of the said substance even if  he  is  not,  at  the  moment,  in
physical control.   The  situation  cannot  be  viewed  differently  when  a
person conceals and hides the prohibited  narcotic  substance  in  a  public
space.  In the second category of cases, the person would be  in  possession
because he has the necessary animus and the intention to retain control  and
dominion.  As the factual matrix would exposit,  the  accused-appellant  was
in possession of  the  prohibited  or  contraband  substance  which  was  an
offence  when  the  NDPS  Act  came  into  force.   Hence,  he  remained  in
possession of the prohibited substance and as such offence under Section  18
of the NDPS Act is made out.  The possessory  right  would  continue  unless
there is something to show  that  he  had  been  divested  of  it.   On  the
contrary, as we find, he led to discovery of the substance which was  within
his special knowledge, and, therefore, there can be no  scintilla  of  doubt
that he was in possession of the contraband article when the NDPS  Act  came
into force.  To clarify the situation, we may give  an  example.   A  person
had stored 100 bags of opium prior to the NDPS Act  coming  into  force  and
after coming into force, the recovery of the possessed article takes  place.
 Certainly, on the date of recovery, he is in possession of  the  contraband
article and possession itself is an  offence.   In  such  a  situation,  the
accused-appellant cannot take the plea that  he  had  committed  an  offence
under Section 9 of the Opium Act and not under Section 18 of the NDPS Act.
17.   After dealing with the concept of  possession,  we  think  it  apt  to
address the issue raised by the learned counsel for the  appellant  that  he
could have convicted and sentenced under the Opium Act, as that was the  law
in force at the time of commission of an offence  and  if  he  is  convicted
under Section 18 of the NDPS  Act,  it  would  tantamount  to  retrospective
operation of law imposing penalty which is prohibited  under  Article  20(1)
of the Constitution of India.  Article 20(1) gets attracted  only  when  any
penal law penalises with retrospective effect i.e. when an act  was  not  an
offence when it  was  committed  and  additionally  the  persons  cannot  be
subjected to penalty greater than  that  which  might  have  been  inflicted
under the law in force at the  time  of  commission  of  the  offence.   The
Article prohibits application of ex post facto law.   In  Rao  Shiv  Bahadur
Singh and Anr. v. State of  Vindhya  Pradesh[23],  while  dealing  with  the
import under Article 20(1) of the Constitution of India,  the  Court  stated
what has been prohibited under  the  said  Article  is  the  conviction  and
sentence in a criminal proceeding under ex post facto law and not the  trial
thereof.  The Constitution Bench has held that:-
".... what is prohibited under Article 20 is  only  conviction  or  sentence
under an 'ex post facto' law and not the trial thereof.  Such trial under  a
procedure different from what obtained at the time of the commission of  the
offence or by a Court different from that which had competence at  the  time
cannot 'ipso facto' be held to be unconstitutional.   A  person  accused  of
the commission of a particular Court or by a  particular  procedure,  except
in so far as any constitutional objection by way of  discrimination  or  the
violation of any other fundamental right may be involved."

      In the instant case, Article 20(1) would  have  no  application.   The
actus of possession  is  not  punishable  with  retrospective  affect.    No
offence is created under Section 18  of  the  NDPS  Act  with  retrospective
effect.  What is punishable is possession of the prohibited  article  on  or
after a particular date when the statute was enacted, creating  the  offence
or enhancing the punishment.  Therefore, if a person  is  in  possession  of
the banned substance on the date when the NDPS Act was  enforced,  he  would
commit the offence, for on the said date he would  have  both  the  'corpus'
and 'animus' necessary in law.

18.   We would be failing in our duty, if we do not analyse the decision  in
Harjit Singh (supra).  In the said case  the  Court  was  dealing  with  the
Notification  dated  18.11.2009  that  has  replaced   the   part   of   the
Notification dated 19.10.2001.   Dealing with the  said  aspect,  the  Court

"13.  Notification  dated  18-11-2009  has  replaced   the   part   of   the
Notification dated 19-10-2001 and reads as under:

"In the Table at  the  end  after  Note  3,  the  following  Note  shall  be
inserted, namely:

(4) The quantities shown in Column 5 and Column 6 of the Table  relating  to
the respective drugs shown in Column 2 shall apply to the entire mixture  or
any solution or any one or more narcotic drugs  or  psychotropic  substances
of that particular drug in dosage form or isomers, esters, ethers and  salts
of these drugs, including salts of  esters,  ethers  and  isomers,  wherever
existence of  such  substance  is  possible  and  not  just  its  pure  drug

14. Thus, it is evident that under the  aforesaid  notification,  the  whole
quantity of material recovered in the form of mixture is  to  be  considered
for the purpose of imposition of punishment. However, the submission is  not
acceptable as it is a settled  legal  proposition  that  a  penal  provision
providing for enhancing the sentence does not operate retrospectively.  This
amendment,  in  fact,  provides  for  a  procedure  which  may  enhance  the
sentence. Thus, its application would be violative of  restrictions  imposed
by Article 20 of the Constitution of India. We are  of  the  view  that  the
said Notification dated 18-11-2009 cannot  be  applied  retrospectively  and
therefore, has no application so far as the instant case is concerned."

      The present fact situation is  absolutely  different  and,  therefore,
the said decision has no applicability to the case at hand.
19.   Learned counsel for the  State  has  contended  that  the  offence  in
question is a continuing offence, for the offence is basically a  possession
of the contraband articles.  He has commended us to the authority  in  State
of Bihar v. Deokaran Nenshi & Anr.[24], wherein it has been held that:-
"A continuing offence is one which is  susceptible  of  continuance  and  is
distinguishable from the one which is committed once and for all. It is  one
of those offences which arises out of a failure to obey  or  comply  with  a
rule or its requirement and which involves  a  penalty,  the  liability  for
which continues until the rule or its  requirement  is  obeyed  or  complied
with. On every occasion that such disobedience or non-compliance occurs  and
reoccurs, there is the offence committed. The distinction  between  the  two
kinds of offences is  between  an  act  or  omission  which  constitutes  an
offence once and for all  and  an  act  or  omission  which  continues,  and
therefore, constitutes a fresh offence every time or occasion  on  which  it
continues.  In  the  case  of  a  continuing  offence,  there  is  thus  the
ingredient of continuance of the offence which is absent in the case  of  an
offence which takes place when an act or omission is committed once and  for

20.   Mr.   Shiv Mangal Sharma, learned AAG for the  State  has  also  drawn
inspiration from  Udai  Shankar  Awasthi  v.  State  of  Uttar  Pradesh  and
Anr.[25]  In the said case, while dealing with  the  concept  of  continuing
offence, after referring to Section 472 of Criminal  Procedure  Code,  1973,
(CrPC) the Court has stated that the  expression  "continuing  offence"  has
not been defined in CrPC because it is one of those expressions  which  does
not have a fixed  connotation  and,  therefore,  the  formula  of  universal
application cannot be formulated in this respect.   The  court  referred  to
Balakrishna  Savalram  Pujari  Waghmare   v.   Shree   Dhyaneshwar   Maharaj
Sansthan[26],  Gokak  Patel   Volkart   Ltd.   v.   Dundayya   Gurushiddaiah
Hiremath[27] and eventually held thus:
"Thus, in view of the above, the law on the issue can be summarised  to  the
effect that, in the case of a continuing offence,  the  ingredients  of  the
offence continue i.e. endure even after the period of consummation,  whereas
in an instantaneous offence, the offence takes place once and for  all  i.e.
when the same actually takes place. In such cases, there  is  no  continuing
offence, even though  the  damage  resulting  from  the  injury  may  itself

21.   In this context, it would be fruitful to refer to a three-Judge  Bench
decision in Maya Rani Punj v. Commissioner of  Income  Tax,  Delhi[28].   In
the said case, the Court approved what has been said by the  High  Court  of
Bombay in State v. A.H. Bhiwandhiwalia[29].  For the sake  of  completeness,
we reproduce the relevant paragraph:-
"In State v. A.H. Bhiwandiwalla (a decision referred to  in  CWT  v.  Suresh
Seth[30]),  Gajendragadkar,  J.  (as  he  then  was),  after   quoting   the
observations of Beaumount, C.J. in an earlier Full Bench  decision  of  that
Court observed:

"Even  so,  this  expression  has  acquired  a  well-recognised  meaning  in
criminal law. If an act  committed  by  an  accused  person  constitutes  an
offence and if that act continues from day to day, then from day  to  day  a
fresh offence is committed by the accused so  long  as  the  act  continues.
Normally and in the ordinary course an offence is committed only  once.  But
we may have offences which can be committed  from  day  to  day  and  it  is
offences falling in this latter category that are  described  as  continuing

22.   We have dwelled  upon the said submission, as the learned counsel  for
the State has seriously addressed that it is a continuing offence.  We  have
already opined that on the date the NDPS Act came into force,  the  accused-
appellant was still in possession of the contraband article.  Thus,  it  was
possession in continuum and hence, the principle with regard  to  continuing
offence gets attracted.
23.   It is submitted by  Ms.  Aishwarya  Bhati,  learned  counsel  for  the
appellant that there has been non-compliance of Section 42 of the  NDPS  Act
and hence, the conviction  is  vitiated.   It  is  urged  by  her  that  the
Investigating Officer has not reduced the information  to  writing  and  has
also not led any evidence of having made a  full  report  to  his  immediate
official superior.   The  High  Court  has  taken  note  of  the  fact  that
information given to Bheem Singh, PW-12, and recovery was made  by  him  who
was the Sub-Inspector and SHO at the police station.  That  apart,  in  this
context, we may refer with profit to  the  Constitution  Bench  decision  in
Karnail Singh v.  State  of  Haryana[31],  wherein  the  issue  emerged  for
consideration is whether Section  42  of  the  NDPS  Act  is  mandatory  and
failure to take down the information in  writing  and  forthwith  sending  a
report to his immediate  officer  superior  would  cause  prejudice  to  the
accused.  The Court was required to reconcile the decisions in Abdul  Rashid
Ibrahim Mansuri v. State of  Gujarat[32]  and  Sajan  Abraham  v.  State  of
Kerala[33].  The Constitution Bench  explaining  the  position  opined  that
Abdul Rashid (supra) did not  require  about  literal  compliance  with  the
requirements of Section 42(1) and 42(2) nor did Sajan Abraham  (supra)  hold
that requirement of Section 42(1) and 42(2) need not be  fulfilled  at  all.
The larger Bench summarized the effect of two decisions.  The  summation  is
reproduced below:-
"(a) The officer on receiving the information of the nature referred  to  in
sub-section (1) of Section 42 from any person had to record  it  in  writing
in the register concerned  and  forthwith  send  a  copy  to  his  immediate
official superior, before proceeding to take action in terms of clauses  (a)
to (d) of Section 42(1).

(b) But if the information was received when the  officer  was  not  in  the
police station, but while he was on  the  move  either  on  patrol  duty  or
otherwise, either by mobile phone,  or  other  means,  and  the  information
calls for immediate action and any delay would have resulted  in  the  goods
or evidence being  removed  or  destroyed,  it  would  not  be  feasible  or
practical to take down in writing the information given to him,  in  such  a
situation, he could take action as per clauses (a) to (d) of  Section  42(1)
and thereafter, as soon as  it  is  practical,  record  the  information  in
writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of  Sections  42(1)
and 42(2) in regard to writing down the information received and  sending  a
copy thereof to the superior officer, should  normally  precede  the  entry,
search and seizure by the officer. But in  special  circumstances  involving
emergent situations,  the  recording  of  the  information  in  writing  and
sending a copy thereof to the official  superior  may  get  postponed  by  a
reasonable period, that  is,  after  the  search,  entry  and  seizure.  The
question is one of urgency and expediency.

(d) While total non-compliance with requirements  of  sub-sections  (1)  and
(2) of Section 42 is impermissible,  delayed  compliance  with  satisfactory
explanation about the delay will be acceptable compliance with  Section  42.
To illustrate, if any delay may result in the accused escaping or the  goods
or evidence being  destroyed  or  removed,  not  recording  in  writing  the
information received, before initiating action, or non-sending of a copy  of
such information to the official superior forthwith, may not be  treated  as
violation of Section 42. But  if  the  information  was  received  when  the
police officer was in the  police  station  with  sufficient  time  to  take
action,  and  if  the  police  officer  fails  to  record  in  writing   the
information received, or fails to send  a  copy  thereof,  to  the  official
superior, then it will be a suspicious circumstance being a clear  violation
of Section 42 of the Act. Similarly,  where  the  police  officer  does  not
record the information at all, and does not inform the official superior  at
all, then also it will be a clear  violation  of  Section  42  of  the  Act.
Whether there is adequate or substantial compliance with Section 42  or  not
is a question of fact to be decided in each case.  The  above  position  got
strengthened with the amendment to Section 42 by Act 9 of 2001."

24.   In Rajinder Singh v. State of Haryana[34],  placing  reliance  on  the
Constitution Bench, it has been opined that total  non-compliance  with  the
provisions of sub-sections  (1)  and  (2)  of  Section  42  of  the  Act  is
impermissible but delayed compliance with satisfactory explanation  for  the
delay can, however, be countenanced.
25.   In the present case, the High Court has  noted  that  the  information
was given to the competent  authority.   That  apart,  the  High  Court  has
further opined that in the case at hand Section 43 applies.  Section  43  of
the NDPS Act contemplates seizure made in the public  place.    There  is  a
distinction between Section 42 and Section 43 of the NDPS Act.  If a  search
is made in a public place, the officer taking the search is not required  to
comply with sub Sections (1) and (2) of Section 42 of the NDPS Act.  As  has
been stated earlier, the seizure has taken place beneath a bridge of  public
road accessible to public.   The  officer,  Sub-Inspector  is  an  empowered
officer under Section 42 of the Act.  As the place is  a  public  place  and
Section 43 comes into play, the question of non-compliance of Section  42(2)
does not arise.  The aforesaid view  gets  support  from  the  decisions  in
Directorate of Revenue and Anr. v. Mohammed Nisar Holia[35] and  State,  NCT
of Delhi v. Malvinder Singh[36].
26.   Learned counsel for the appellant has also contended  that  there  has
been non-compliance of Section 57 of the NDPS Act, which reads as follows:-
"Report of arrest and seizure - Whenever any  person  makes  any  arrest  or
seizure under this Act, he shall, within fortyeight hours  next  after  such
arrest or seizure, make a full report of all the particulars of such  arrest
or seizure to his immediate official superior."

27.   A three-Judge Bench in Sajan  Abraham  (supra),  placing  reliance  on
State of Punjab v. Balbir  Singh[37],  has  held  that  Section  57  is  not
mandatory in nature and when substantial compliance is made,  it  would  not
vitiate the prosecution case.  In Karnail Singh  (supra),  the  Constitution
Bench, while explaining the  ratio  laid  down  in  Sajan  Abraham  (supra),
analysed the requirement of Section 42(1) and  42(2)  and  opined  that  the
said pronouncement never meant that those provisions need not  be  fulfilled
at all.  However, the Constitution Bench has not delved into  the  facet  of
Section 57 of the NDPS Act.
28.   In Kishan Chand v. State of Haryana[38], the Court while dealing  with
the compliance of Sections 42, 50 and 57, has opined thus:-
"21. When there is total and definite  non-compliance  with  such  statutory
provisions, the question of prejudice loses its significance.  It  will  per
se amount to prejudice. These are indefeasible, protective rights vested  in
a  suspect  and  are  incapable  of  being  shadowed  on  the  strength   of
substantial compliance.

22. The purpose of these provisions  is  to  provide  due  protection  to  a
suspect against false implication  and  ensure  that  these  provisions  are
strictly  complied  with  to  further  the  legislative  mandate   of   fair
investigation and trial. It will be opposed to the very essence of  criminal
jurisprudence, if upon  apparent  and  admitted  non-compliance  with  these
provisions in their entirety, the  court  has  to  examine  the  element  of
prejudice.  The  element  of  prejudice  is  of  some   significance   where
provisions  are  directory  or  are  of  the  nature  admitting  substantial
compliance. Where the duty is absolute, the element of  prejudice  would  be
of least relevance. Absolute duty coupled with strict compliance would  rule
out the element of prejudice where there is total  non-compliance  with  the

      After so stating, the Court proceeded to address the  separate  rights
and protection under the said provisions and in that context ruled:-
"Reliance placed by the learned counsel appearing for  the  State  on  Sajan
Abraham is entirely misplaced, firstly in view  of  the  Constitution  Bench
judgment of this Court in Karnail Singh. Secondly, in that  case  the  Court
was also dealing with the application of the provisions  of  Section  57  of
the Act which are worded differently and  have  different  requirements,  as
opposed to Sections 42 and 50 of the Act. It is not a case where any  reason
has come in evidence as to why the secret information  was  not  reduced  to
[pic]writing and sent to the higher officer, which is the requirement to  be
adhered to "pre-search". The question of sending it  immediately  thereafter
does not arise in the present case, as  it  is  an  admitted  position  that
there is total non-compliance with Section 42 of the  Act.  The  sending  of
report as required under Section 57 of the  Act  on  20-7-2000  will  be  no
compliance, factually and/or in the eye of the  law  to  the  provisions  of
Section 42 of the Act. These are separate rights and  protections  available
to an accused and their compliance has to be done  in  accordance  with  the
provisions of  Sections  42,  50  and  57  of  the  Act.  They  are  neither
interlinked nor interdependent so as to dispense compliance of one with  the
compliance of another. In fact, they operate  in  different  fields  and  at
different stages. That distinction has to be kept  in  mind  by  the  courts
while deciding such cases."

29.   In the instant case, on perusal of the  evidence,  it  is  clear  that
there has been substantial compliance of Section 57 of  the  NDPS  Act  and,
therefore, the question of prejudice does not arise.
30.   Ms. Bhati, learned counsel for the appellant has also  contended  that
the appellant was in custody in connection with  FIR  no.  95  of  1985  and
while in custody, he suffered a disclosure statement and  led  to  discovery
of the contraband articles.  Submission  of  the  learned  counsel  for  the
appellant is that the said statement cannot be taken aid of for the  purpose
of discovery in connection with the present case.  It is  demonstrable  from
the factual matrix that in connection with  FIR  No.  95  of  1985,  he  was
arrested and while he was interrogated, he led to  discovery  in  connection
with the stolen contraband articles from the malkhana which was  the  matter
of investigation in FIR no. 96 of 1985.  There is no shadow  of  doubt  that
the accused-appellant was in police  custody.   Section  27  of  the  Indian
Evidence Act, 1872 provides that when any fact is deposed  to  as  discovery
in consequence of the information received from  a  person  accused  of  any
offence in custody of a police officer, so much of such information  whether
it amounts to confession or not as relates distinctly to  the  fact  thereby
discovered may be proved.   It is well settled in law  that  the  components
or portion  which  was  the  immediate  cause  of  the  discovery  could  be
acceptable legal evidence [See A.K. Subraman and Others v.  Union  of  India
and Others[39]].  The words employed in Section 27 does  not  restrict  that
the accused must be arrested in connection with the same offence.  In  fact,
the emphasis is on receipt of information  from  a  person  accused  of  any
offence.  Therefore, when the accused-appellant was already  in  custody  in
connection with FIR no. 95 of 1985 and  he  led  to  the  discovery  of  the
contraband articles, the plea that it was not done in  connection  with  FIR
no. 96 of 1985, is absolutely unsustainable.  Be it stated  here,  that  the
recovery has been proven to the  hilt.   The  accused,  accompanied  by  the
witnesses, had gone beneath  the  bridge  built  between  Gupal  Sariya  and
Madiyai and he himself had removed the big stone and dug the earth and  took
out the packet which was bound in a long  cloth  from  which  a  packet  was
discovered and the said packet contained 10 kg and 200 gms  of  opium.   The
learned trial Judge as well as the High Court has, by  cogent  and  coherent
reasons, accepted the recovery.  On a scrutiny of the  same,  we  also  find
that there is nothing on record to differ with the  factum  of  recovery  of
the contraband articles.
31.   Another submission that has been advanced by the learned  counsel  for
the appellant is that the seized articles  were  not  sent  immediately  for
chemical examination.  The FSL report,  Ex.  P-14,  dated  15.9.1986  states
that a letter along with a sealed packet was  received  with  seals  intact.
The said report further mentions that packet was covered in white cloth  and
on opening of the packet, the examiner  found  a  cylindrical  tin  and  the
substance on examination was found to be an  opium  having  1.44%  morphine.
The  seal  being  intact,  the  description  of  the  case  number  and  the
impression of seal having been fixed  on  memo  of  recovery,  there  is  no
reason or justification to discard the prosecution case  on  the  ground  of
delay on this score.    In Hardip Singh v. State of Punjab[40], a  two-Judge
Bench while dealing with the question of delay in  sending  the  samples  of
opium to the FSL, opined that it was of no consequence, for the fact of  the
recovery of the said sample from the possession of the  appellant  had  been
proven and established by cogent and reliable evidence and  that  apart,  it
had also come in evidence that till the date  of  parcels  of  samples  were
received by the Chemical Examiner, the seal put on that parcel  was  intact.
Under these circumstances, the Court  ruled  that  the  said  facts  clearly
proves and establishes that there was no tampering with the  aforesaid  seal
in the sample at any stage and  the  sample  received  by  the  analyst  for
chemical examination contained the same opium which was recovered  from  the
possession of the appellant.  The plea that there  was  40  days  delay  was
immaterial and would not dent the prosecution case.
32.   In view of the aforesaid analysis, we do not  perceive  any  substance
in this appeal and accordingly, the same is dismissed.

                                                               [Dipak Misra]

          [S.A. BOBDE]
New Delhi
April 17, 2015

        (2011) 4 SCC 441
[2]     AIR 1965 SC 444
[3]     (1983) 1 SCC 177
[4]     (2004) 3 SCC 609
[5]     (2005) 3 SCC 551
[6]     219 Kan. 616, 549 p.2d 568, 569
[7]     Tex. Cr. App. 487 S.W. 2d 132, 135
[8]     105 Wash. 2d 120, 713 p.2d 71, 74
[9]     C.A. Tenn, 522 F.2d 29, 31
[10]   176 Ga. App, 268, 335 S.E.2d 640, 647
[11]   C.A. Ariz, 520 F.2d 882, 884
[12]    48 Ala.App.  523, 266 So.2d 328, 333
[13]    C.A. Cal., 469 F.2d 413, 415
[14]   12 Or.APP. 496 507 P.2d 837, 837
[15]   [1972] 1 W.L.R. 64
[16]    Published in "Oxford Essays on Jurisprudence" (Edited by A G Guest,
First Series,  Clarendon Press,
[17]    (2008) 16 SCC 417
[18]   (2011) 11 SCC 653
[19]    (2010) 9 SCC 608
[20]    (2002) 7 SCC 419
[21]    (2004) 13 SCC 608
[22]   (2003) 7 SCC 465
[23]    AIR 1953 SC 394
[24]    (1972) 2 SCC 890
[25]    (2013) 2 SCC 435
[26]    AIR 1959 SC 798
[27]    (1991) 2 SCC 141
[28]    (1986) 1 SCC 445
[29]    AIR 1955 Bom 161
[30]    (1981) 2 SCC 790
[31]    (2009) 8 SCC 539
[32]    (2000) 2 SCC 513
[33]    (2001) 6 SCC 692
[34]    (2011) 8 SCC 130
[35]    (2008) 2 SCC 370
[36]    (2007) 11 SCC 314
[37]    (1994) 3 SCC 299
[38]    (2013) 2 SCC 502
[39]    AIR 1976 SC 483
[40]    (2008) 8 SCC 557

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