Singh Vs. State of Punjab  Insc 449 (15 September 2003)
Raju & Arijit Pasayat. Arijit Pasayat, J.
preferred by appellant-Megh Singh questioning his conviction under Section 15
of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the
'Act') was dismissed by learned Single Judge of the Punjab and Haryana High Court by the
impugned judgment. He has questioned the legality thereof in the present
compass of controversy as unfolded during trial by the prosecution is as
22.2.1993, police party headed by SI Chanan Singh, In-charge of Police Station Dharamgarh
(PW 1/B) was going on kacha road towards drain from village Dharamgarh in
connection with patrol duty and when they reached near brick kiln, Santa Singh
son of Bachan Singh met them and joined in the police party. When the police
party was little short of the drain, they saw three persons sitting on gunny
bags. Two of them fled from the spot and the third one, accused-appellant Megh
Singh was apprehended. He disclosed the names of the persons who had run away
to be Baldev Singh and Pillu. Twenty-five bags containing poppy husk were found
at the spot. Two samples of 250 gms. were taken from each bag and after taking
the samples, weight of bags was found to be 36 kgs. 500 gms. each. All the
fifty samples and 25 bags of poppy husk were sealed with seal 'CS' which after
use was handed over to HS Mithu Singh (PW-2).
case property was taken into possession vide recovery memo Exhibit PC attested
by witnesses including Santa Singh. On the basis of ruqa Exhibit PE. F.I.R. Exhibit PE/1 was registered. Baldev Singh who had run away from
the spot was arrested on 27.2.1993 and Pillu Singh was arrested on 10.3.1993.
Case property was produced before Baldev Singh, SHO of Police Station, Sunam
(PW-3) who verified the investigation and sealed the same with seal 'BS'. On
chemical examination, the samples were found to be of poppy husk vide report Exhibit PK.
Court after considering the evidence on record held that the accusations
against appellant-Megh Singh have been found established;
convicted him under Section 15 of the Act and sentenced him to undergo RI for
10 years and to pay a fine of Rs.1 lakh with default condition of further RI
for 1 year. Appellant challenged the conviction and sentence before the High
Court. Primary stand was that accused had been arrested on 19.2.1993 and
telegram had been sent in that regard to the police officials. It was contended
that when benefit of doubt has been given to the other co-accused persons,
there was no basis for convicting the accused-appellant. There was no material
to show any conscious possession which is sine qua non for conviction under
Section 15 of the Act. In any event, requirements of Section 50 were not
complied with. High Court discarded the plea regarding arrest of Megh Singh on
19.2.1993 on the ground that the evidence on record establishes that the
application/telegram was received on 24.2.1993 and merely because an earlier
date was indicated, it cannot be said that the accused was really arrested on
19.2.1993. Coming to the plea of conscious possession it was held that the
prosecution had produced ample evidence that accused was in physical possession
and in terms of Section 54 of the Act conscious possession was presumed unless
proved to the contrary. Accused has failed to do so. Therefore, conscious
possession was established. Accordingly the appeal filed by the accused was
dismissed. It was further held that Section 50 has no application because there
was no personal search of the applicant. Consequentially conviction and
sentence were upheld.
counsel appearing for the accused-appellant submitted that the facts of the
case greatly resemblance with that of Avtar Singh and Ors. v. State of Punjab (2002 (7) SCC 419). Since conscious
possession has not been proved, the conviction of the accused-appellant cannot
be stand on a different footing from those co-accused who have been acquitted.
Non-compliance with requirements of Section 50 of the Act vitiates the
response, learned counsel for the respondent-State submitted that conscious
possession has been established and by application of logic of Section 54 of
the Act when physical possession is established, there is presumption of
conscious possession. Merely because co-accused persons have been acquitted
that cannot be a factor to hold the accused- appellant innocent. It is
submitted that since there was no personal search, Section 50 of the Act has no
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 the accused was sitting atop gunny bags containing the contraband
20(b) makes possession of contraband articles an offence.
20 appears in chapter IV of the Act which relates to offence for possession of
such articles. It is submitted that in order to make the possession illicit,
there must be a conscious possession.
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. This position was highlighted in Madan
Lal and Anr. v. State of Himachal
Pradesh (2003 (6)
factual scenario of the present case not only possession but conscious
possession has been established. It has not been shown by the accused-appellant
that the possession was not conscious in the logical background of Sections 35
and 54 of the Act.
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.
decision in Avtar Singh and Ors. v. State of Punjab (2002 (7) SCC 419) was rendered in a different factual
background. In that case the articles were being carried in a truck. There were
several persons in the truck. It had not been established by evidence that any
one of them had any conscious possession. That also was not the only factor
taken note of. While the accused was examined under Section 313 of the Code of
Criminal Procedure, 1973 (for short 'the Code'), the essence of accusations was
not brought to his notice, more particularly with possession aspect. It was
also noticed that the possibility of the accused persons being labourers of the
truck was not ruled by the evidence. Since the decision was rendered on
consideration of several peculiar factual aspects specially noticed in that
case, it is of no assistance to the accused also.
flexibility, one additional or different fact may make a world of difference
between conclusions in two cases or between two accused in the same case. Each
case depends on its own facts and a close similarity between one case and
another is not enough because a single significant detail may alter the entire
aspect. It is more pronounced in criminal cases where the backbone of
adjudication is fact based.
find no substance in this appeal, which deserves dismissal, and we so direct.