IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1393 OF 2010
Mohan Lal ... Appellant
Versus
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
concurrently.
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-
Alvarez[11].
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
follows:
""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
prosecution.
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
hereinafter."
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
established.
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
doubt."
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
accused.
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.
[pic]
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
held:-
"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
content."
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
all."
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
continue."
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
offences.""
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
provision."
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.
.............................J.
[Dipak Misra]
............................J.
[S.A. BOBDE]
New Delhi
April 17, 2015
-----------------------
[1]
(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,
Oxford.
[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
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1393 OF 2010
Mohan Lal ... Appellant
Versus
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
concurrently.
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-
Alvarez[11].
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
follows:
""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
prosecution.
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
hereinafter."
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
established.
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
doubt."
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
accused.
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.
[pic]
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
held:-
"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
content."
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
all."
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
continue."
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
offences.""
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
provision."
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.
.............................J.
[Dipak Misra]
............................J.
[S.A. BOBDE]
New Delhi
April 17, 2015
-----------------------
[1]
(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,
Oxford.
[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
