and Anr Vs. State of Himachal
Pradesh  Insc
388 (19 August 2003)
Raju & Arijit Pasayat.
APPEAL NOS. 788/2002 AND 905/2003 ARIJIT PASAYAT,J Since these three appeals
involve identical issues they are disposed of by this common judgment.
appellants and one other person faced trial for alleged commission of offence
punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (in short 'the Act').
the five accused were found guilty of the alleged offence and all of them were
sentenced to undergo rigorous imprisonment for a term of 10 years and to pay a
fine of Rs.1 lakh with a default stipulation of a further rigorous imprisonment
of 3 months in case of default to pay the fine.
impugned judgment the High Court of Himachal Pradesh at Shimla dismissed the
appeals filed by the accused appellants.
appeal Nos. 786/2002 and 788/2002 at the Special Leave Petition stage, there
were four petitioners. The special leave petition so far as petitioner Goyal Nath
is concerned was dismissed by an order dated 5.8.2002.
which led to the trial of the accused appellants in a nutshell is as follows:
5.10.1999, a secret telephonic message was recorded by Sunder Lal, A.S.P. (PW-11)
that charas was being transported in a Maruti Esteem blue car bearing
No.CHO-IE-2764 which was coming towards Oachghat. The information was reduced
by him into writing. He gave directions to the SHO, Police Station, Solan to
send the information to the Superintendent of Police and thereafter proceeded
towards the spot where the car was expected to come. On reaching the spot, he
formed a raiding party consisting of Jainarain (PW-1) and Ashwani Kumar Gupta
(PW-2) and the car was stopped by the raiding party. Accused, Manjit Singh was
driving the car and the remaining accused persons were sitting therein. In the
presence of witnesses, Jainarain (PW-1) gave an option to the accused persons
as to whether they wanted to be searched by a Magistrate or by him. Accused
appellants consented for the search by Jainarain (PW-1). On personal search of
the accused persons nothing incriminating was found on their person. When the
car was searched, a black coloured bag was found which contained a steel doloo
kept in a plastic bag. The said doloo contained 820 grams of charas. After
separating two samples of 25 grams each the remaining charas were separately
sealed and samples were sent to the Officer Incharge, Police Station, Solan for
registration of a case. On the basis of the information FIR was recorded at the
Police Station. The car along with the documents and the key were also seized.
The sealed parcels of the case property were handed over to the SHO (PW-9) who
samples were analysed by the Chemical Examiner who filed a report vide
Ext.PW-10/A with the finding that the samples were that of charas.
being satisfied about commission of offence under Section 20 of the Act, a
charge sheet was submitted. After framing of charge, the accused persons faced
substantiate its accusation, prosecution examined 11 witnesses. The accused
appellants pleaded innocence. On consideration of the evidence on record, the
accused persons were convicted and sentenced as aforesaid. The appeals
preferred by the accused appellants were dismissed by the impugned judgment.
Chaturvedi, learned amicus curiae appearing for the accused appellants
submitted that the prosecution was totally without basis and there were several
irretrievable infractions of statutory provisions which render the trial
vitiated and consequently the judgments are unsustainable.
it was submitted that the mandatory requirements of Sections 42 and 50 were not
complied with. Further, the officials had tampered with the samples as the
weight of the sample was less than what was indicated.
the different pleas, it was submitted that there was no material to show that
the information which was required to be transmitted to the superior authority
was so done. Further, the finding that there was no requirement to comply with
the requirement of Section 50 when a vehicle has been searched is not correct.
When accused Goyal Nath whose SLP has been dismissed, admitted that the seized charas
belonged to him, other accused appellants should not have been convicted. There
was no material to prove that there was any conscious possession of the
case of accused-appellant Manjit Singh it was additionally submitted that he
was only the driver of the vehicle and was not supposed to know what the other
occupants were bringing.
response, it was submitted by learned Additional Advocate General appearing for
the State of Himachal
Pradesh that all the
points presently urged were considered by the Trial Court and the High Court,
and after detailed analysis of the legal and factual position have been rightly
first aspect which needs to be considered is whether there was any
non-compliance of Sections 42 and 50 of the Act as pleaded. So far as these two
provisions are concerned, they read as follows:
42: Power of entry, search, seizure and arrest without warrant or
Any such officer (being an officer superior in rank to a peon, sepoy or
constable) of the departments of central excise, narcotics, customs, revenue
intelligence or any other department of the Central Government including para-military
forces or armed forces as is empowered in this behalf by general or special
order by the Central Government, or any such officer (being an officer superior
in rank to a peon, sepoy or constable)of the revenue, drugs control, excise,
police or any other department of a State Government as is empowered in this
behalf by general or special order of the State Government, if he has reason to
believe from persons knowledge or information given by any person and taken
down in writing that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence punishable under this Act
has been committed or any document or other article which may furnish evidence
of the commission of such offence or any illegally acquired property or any
document or other article which may furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or concealed in any building, conveyance or
enclosed place, may between sunrise and sunset,-
into and search any such building, conveyance or place;
case of resistance, break open any door and remove any obstacle to such entry;
seize such drug or substance and all materials used in the manufacture thereof
and any other article and any animal or conveyance which he has reason to
believe to be liable to confiscation under this Act and any document or other
article which he has reason to believe may furnish evidence of the commission
of any offence punishable under this Act or furnish evidence of holding any
illegally acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act; and
and search, and, if he thinks proper, arrest any person whom he has reason to
believe to have committed any offence punishable under this Act.
that if such officer has reason to believe that a search warrant or
authorization cannot be obtained without affording opportunity for the
concealment or evidence or facility for the escape of an offender, he may enter
and search such building, conveyance or enclosed place at any time between sunset
and sunrise after recording the grounds of his belief.
Where an officer takes down any information in writing under sub-section (1) or
records grounds for his belief under the proviso thereto, he shall within
seventy-two hours send a copy thereof to his immediate official superior.
50: Conditions under which search of persons shall be conducted-
When any officer duly authorized under Section 42 is about to search any person
under the provisions of Section 41, section 42 or section 43, he shall, if such
person so requires, take such person without unnecessary delay to the nearest Gazetted
Officer of any of the departments mentioned in section 42 or to the nearest
such requisition is made, the officer may detain the person until he can bring
him before the Gazetted Officer or the Magistrate referred to in sub-section
The Gazetted Officer or the Magistrate before whom any such person is brought
shall, if he sees no reasonable ground for search, forthwith discharge the
person but otherwise shall direct that search be made.
female shall be searched by anyone excepting a female.
When an officer duly authorized under section 42 has reason to believe that it
is not possible to take the person to be searched to the nearest Gazetted
Officer or Magistrate without the possibility of the person to be searched
parting with possession of any narcotic drug or psychotropic substance, or
controlled substance or article or document, he may, instead of taking such person
to the nearest Gazetted Officer or Magistrate, proceed to search the person as
provided under section 100 of the Code of Criminal Procedure, 1973(2 of 1974).
After a search is conducted under sub-section (5), the officer shall record the
reasons for such belief which necessitated such search and within seventy-two
hours send a copy thereof to his immediate official superior."
evidence of the witnesses i.e. PWs. 5, 8 and 11 throw considerable light on
this controversy. In fact the original register which recorded the transmission
of the information to the Superintendent of Police was perused by the High
Court. On 27.12.2000 after perusing the register, the High Court noted that
there was no over-writing or cutting in respect of the relevant entries.
Constable (PW-8) has stated that he had taken a copy of the daily diary
regarding receipt of information about transportation of charas (Ext.PW-5/A)
and handed over to the reader of the Superintendent of Police at 10.40 a.m. the relevant document. PW-5 has corroborated this
statement of PW-8 about delivery of the copy of information and he has stated
that the same was placed before the concerned Superintendent of Police. In
other words, the materials clearly establish that the information was sent without
delay to the immediate superior officer of PW-11 i.e. Superintendent of Police.
That being the position, contention regarding non-compliance of provisions of
Section 42 is clearly without substance.
the question whether there was non-compliance of Section 50 of the Act.
reading of Section 50 shows that it only applies in case of personal search of
a person. It does not extend to search of a vehicle or a container or a bag, or
premises.(See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999 (8) SC 293), The State of Punjab v. Baldev Singh (JT 1999 (4) SC
595), Gurbax Singh v. State of Haryana
(2001(3) SCC 28). The language of Section 50 is implicitly clear that the
search has to be in relation to a person as contrasted to search of premises,
vehicles or articles. This position was settled beyond doubt by the
Constitution Bench in Baldev Singh's case (supra). Above being the position,
the contention regarding non-compliance of Section 50 of the Act is also
without any substance.
to the plea that there was reduction in weight of the samples sent for analysis
and there was tampering, it has to be noted that this aspect has also been
considered by the Trial Court which has recorded the reasons for rejecting the
same. It has been noted that the seals were intact and there was no tampering.
The view has been endorsed by the High Court. On considering the reasoning
indicated that there was very minimal and almost ignorable variation in weight,
we find no reason to interfere with the findings.
other plea which was emphasized was the alleged statement of accused Goyal Nath
that he alone was in possession of the contraband bags. The plea centers round
a statement of search witness PW-1, who stated that Goyal Nath told him that
contraband articles belonged to him. The statement was made totally out of
context and no credence can at all be attached to the statement. The accused Goyal
Nath in his examination under Section 313 of the Code of Criminal Procedure,
1973 (in short the 'Code') did not state that he was alone in possession of the
contraband articles. On the contrary, he stated that he did not know anything
about the alleged seizure.
there was conscious possession has to be determined with reference to the
factual backdrop. The facts which can be culled out from the evidence on record
is that all the accused persons were traveling in a vehicle and as noted by the
Trial Court they were known to each other and it has not been explained or
shown as to how they travelled together from the same destination in a vehicle
which was not a public vehicle.
20(b) makes possession of contraband articles an offence. Section 20 appears in
chapter IV of the Act which relates to offence for possession of such articles.
It is submitted that in order to make the possession illicit, there must be a
highlighted that unless the possession was coupled with requisite mental
element, i.e. conscious possession and not mere custody without awareness of
the nature of such possession, Section 20 is not attracted.
expression 'possession' is a polymorphous term which assumes different colours
in different contexts. It may carry different meanings in contextually
different backgrounds. It is impossible, as was observed in Superintendent
& Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR
1980 SC 52), to work out a completely logical and precise definition of
"possession" uniformally applicable to all situations in the context
of all statutes.
word 'conscious' means awareness about a particular fact. It is a state of mind
which is deliberate or intended.
noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a
given case need not be physical possession but can be constructive, having
power and control over the article in case in question, while the person whom
physical possession is given holds it subject to that power or control.
word 'possession' means the legal right to possession (See Health v. Drown (1972)
(2) All ER 561 (HL). In an interesting case it was observed that where a person
keeps his fire arm in his mother's flat which is safer than his own home, he
must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness
(1976 (1) All ER 844 (QBD).
possession is established the person who claims that it was not a conscious
possession has to establish it, because how he came to be in possession is
within his special knowledge. Section 35 of the Act gives a statutory recognition
of this position because of presumption available in law. Similar is the
position in terms of Section 54 where also presumption is available to be drawn
from possession of illicit articles.
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.
fact the evidence clearly establishes that they knew about transportation of charas,
and each had a role in the transportation and possession with conscious
knowledge of what they are doing. The accused-appellant Manjit Singh does not
stand on a different footing merely because he was a driver of the vehicle. The
logic applicable to other accused-appellants also applies to Manjit Singh.
the presumption available by application of logic flowing from Sections 35 and
54 of the Act clearly applies to the facts of the present case. The judgments
of the Trial Court and the High Court suffer from no infirmity to warrant
interference. The appeals deserve dismissal, which we direct.