Kaur Vs. State of Punjab  INSC 1153 (7 July 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2108
OF 2008 Balbir Kaur .... Appellant Versus State of Punjab .... Respondent
Mukundakam Sharma, J.
This appeal is directed against the judgment and order passed by
the High Court of Punjab and Haryana at Chandigarh on 15.05.2008 whereby and
whereunder the High Court upheld the order of conviction passed against the
appellant herein for the offence punishable under Section 15 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the
NDPS Act') and sentenced her to undergo rigorous imprisonment for a period of
ten years, and to pay a fine of Rs. 1 lac, and in default of payment of the
same to undergo rigorous imprisonment for another period of two years, for
having found in possession of 2 bags containing 61 Kgs. of poppy husk, without
any permit or licence
The facts stated in brief are that on 19.12.1988, Sub Inspector
Uttam Singh along with ASI Kasturi Lal and other police officials, was going
from village Shambu to Village Tepla, Rajgarh and Ram Nagar Sainia, for patrol
duty and when the police party reached near the turning of Village Darian, the
appellant was found sitting on two bags. It is alleged that on seeing the
police party, the appellant turned her face towards her village.
the conduct and behaviour of the appellant and on suspicion, Sub Inspector
Uttam Singh asked her about the contents of the bags. She replied by stating
that the bags contained poppy husk. It was also alleged that in the meanwhile,
Rajwant Pal Singh, an independent witness came there and he also joined the
police party. It is alleged that then Sub Inspector Uttam Singh gave option to
the accused whether she wanted to be searched before the Gazetted Officer or
Magistrate to which she replied that she wanted to be searched before a
Gazetted Officer and by a lady.
Sub Inspector Uttam Singh sent wireless message to D.S.P. Harcharan Singh
Bhullar and also requested for presence of a lady 2 constable. In the
meanwhile, D.P.S. Harcharan Singh Bhullar alongwith Charanjit Kaur, a lady SPO
came to the aforesaid place. D.P.S. Harcharan Singh Bhullar thereafter
disclosed his identity and that of lady SPO to the appellant. Then SI Uttam
Singh conducted the search and both the bags were found to contain poppy husk,
and therefore, two samples of 250 gms each from both the bags were taken out as
samples. The first bag contained 30 kg 500 gms whereas the second bag contained
29 kgs. 500 gms of poppy husk. Sample parcels and the bags were sealed and then
after completing the necessary formalities the SI Uttam Singh arrested the
accused and recorded the statement of the witnesses. SI Uttam Singh thereafter
deposited the case property with the MHC Gurmail Singh and on receipt of the
report of the Chemical Examiner and on completion of other necessary
investigation formalities, charge sheet against the appellant was presented.
The court framed charges against the appellant and the case was put down for
trial of accused.
During trial, the prosecution examined a number of witnesses. The
statement of the appellant was also recorded under Section 313 of the Criminal Procedure
Code, 1973 (in short "the CrPC") wherein she denied the charges and
stated that she was innocent. In her defence, Rajwant Pal Singh (DW-1) and Budh
Kaur (DW-2) were examined. The trial court 3 thereafter examined the records
including the depositions of all the witnesses and after examination of the
records passed its Judgment and Order dated 20.02.1999 holding that the
prosecution has been able to prove its case beyond reasonable doubt. The court
held that on 19.02.1998 the appellant was found in possession of two bags
containing 61 Kgs of poppy husk without any permit or licence. Consequently,
the trial court held the appellant guilty under Section 15 of the NDPS Act and
passed an order of conviction. Thereafter, the trial court heard the appellant
on the question of sentence. After hearing the parties, the trial court
sentenced the appellant to undergo minimum sentence of rigorous imprisonment
for a period of ten years and to pay a fine of Rs. 1 lac under section 15 of
the NDPS Act and in default thereof to undergo rigorous imprisonment for
another period of two years.
Being aggrieved by the aforesaid order, the appellant filed an
appeal before the High Court of Punjab and Haryana challenging the aforesaid
order of conviction and sentence. The High Court after hearing the parties
passed the Judgment and Order on 15.05.2008 whereby the High Court upheld the
Judgment and Order passed by the trial court after dismissing the appeal filed
by the appellant herein.
Being aggrieved by the Judgment and Order passed by the High
Court, the present appeal was filed by way of special leave.
Ms. Kamini Jaiswal, learned counsel appearing for the appellant
submitted that no case of conviction and sentence was made out on the basis of
evidence on record. It was also submitted by her that the appellant was a lady
of about 70 years and that there was some bias of the police officers against
her as she had initiated certain proceedings against them in the past. It was
further submitted that there was no independent witness examined by the
prosecution and it had examined only official witnesses although independent
witnesses were present at the time of occurrence, who, however, deposed against
the prosecution and in favour of the appellant. She also submitted that at the
time of search of the appellant - accused, there was total non-compliance of
Sections 52 and 57 of the NDPS Act inasmuch as the police officers did not
inform her that she had a right to be searched in the presence of a Gazetted
Officer and such a Gazetted Officer was made available only when the appellant
herself asked for the presence of such an officer. It was also submitted by her
that there are material discrepancies in the statement of witnesses. There was
also delay in sending samples as alleged recovery of poppy husk was made on
19.02.1988 whereas the sample was deposited in the office of the 5 Chemical
Examiner on 23.02.1988 and the said delay have not been explained by the
prosecution, and therefore, the order of conviction and sentence is required to
be set aside. It was also submitted that the prosecution has failed to prove
and establish its case beyond reasonable doubt on the basis of the evidence on
record that the appellant was in conscious possession of the contraband goods. It
was submitted that the appellant was found sitting on two bags containing poppy
husk and when she was asked as to what was contained therein she told that the
same contained poppy husk and therefore the only allegation against her is that
she was sitting on two bags on an open road, from which it cannot be presumed
that she was in conscious possession of the contraband goods.
With the able help and assistance of the counsel appearing for the
parties, we have examined the entire evidence on record as also the relevant
provisions of the Act. The evidence, which has come on record, indicates that
just before her search, the appellant was found sitting on two bags and that on
seeing the police party the appellant turned her face towards her village. When
Sub Inspector - Uttam Singh asked the appellant about the contents of the bags,
she replied by stating that the bags contained poppy husk. The said Sub
Inspector - Uttam Singh (PW-6) has categorically stated this in his evidence.
Not even a suggestion was put to him in the 6 cross examination in that regard.
What actually was done was that when the said statement came on evidence the
same appears to have been objected to but there was no suggestion given in the
cross examination on the behalf of the appellant at the time of examination of
the said witness.
case the said two bags were carried by the appellant as stated by the said
witness, and upon search the same were found to contain poppy husk.
Since recovery of poppy husk was made from the bags carried by the
appellant, therefore, the submission that there was violation of the provisions
of Sections 52 - 57 of the NDPS Act is baseless and devoid of any merit.
Reference in this regard may be made to the decision of this Court in State of
Punjab v. Baldev Singh, (1999) 6 SCC 172; Avtar Singh v. State of Punjab,
(2002) 2 SCC 419; State of Punjab v. Balkar Singh, (2004) 3 SCC 582; Dilip v.
State of M. P.; State of Haryana v. Mai Ram, (2008) 8 SCC 292; and Hardip Singh
v. State of Punjab, (2008) 8 SCC 557.
In Madan Lal v. State of H. P., (2003) 7 SCC 465, it was held by
this Court that the issue with regard to conscious possession is to be
determined on the fact situation of each case. The Court observed as follows in
"19. Whether there was conscious possession has to be determined with
reference to the factual backdrop. The facts which can be culled out from the
evidence on record are that all the accused persons were travelling in a
vehicle and as noted by the trial court they were known to each other and it
has not been explained or shown as to how they travelled together from the same
destination in a vehicle which was not a public vehicle.
Section 20(b) makes possession of contraband articles an offence. Section 20
appears in Chapter IV of the Act which relates to offences for possession of
such articles. It is submitted that in order to make the possession illicit,
there must be a conscious possession.
21. It is
highlighted that unless the possession was coupled with the 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 Supdt.
& Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja4 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. State of M.P.5 possession in a given case need not be
physical possession but can be constructive, having power and control over the
article in the case in question, while the person to whom physical possession
is given holds it subject to that power or control.
word "possession" means the legal right to possession (see Heath v.
Drown6). In an interesting case it was observed that where a person keeps his
firearm 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
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.
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 were
also presumption is available to be drawn from possession of illicit articles.
She was found sitting on the bags in the road and seeing the
police party she behaved in a suspicious manner. Nothing has come on evidence
to show that at that time any other person was present at the scene of
occurrence. When she was asked about the contents in the bag she herself
admitted that it contained poppy husk. Therefore, her possession of the
contraband goods was conscious possession. So far as the submission with regard
to alleged bias of the prosecution is concerned, we are of the view that no
case of bias has been made out for the earlier proceedings which were initiated
by the appellant herself by filing an application under section 438 CrPC for
anticipatory bail. Another incident which is referred to and relied upon by the
defence to show bias is that Sub Inspector Uttam Singh (PW-6) along with other
police officials raided the appellant's residence but nothing incriminating was
recovered from there. That itself does not make out a case of bias when she was
found in broad light having in possession two bags of poppy husk.
In view of the concurrent findings of the trial court and as also
the High Court holding that the appellant was in conscious possession of the
said contraband goods, the allegation of non-disclosure of the purpose of
search and the grounds of arrest to her are all of technical nature and without
being any material force in them. The appellant herself knew that she was being
searched for possession of contraband goods, and therefore, she had also sought
for protection as provided under Section 52 and 57 of the NDPS Act. She was
being searched and arrested on account of possession of contraband goods. The
violation of the provisions of the NDPS Act was clearly known to her. The
allegation that she herself asked for such protection instead of prosecution
giving her the option to be searched before a Gazetted Officer, as required
under the law, would not in any manner adversely affect her conviction and
order of sentence passed by both the courts below. No prejudice could be shown
by the appellant against the DSP, who was a Gazetted Officer and the lady
officer present at the time of search.
It is also to be noted at this stage that the recovery of poppy
husk was made from the bags carried by the appellant, so the submission that
there was violation of the provisions of Section 50 is legally untenable. This
Court has recently in State of Haryana v. Maniram, (2008) 8 SCC 292 10 @ p. 295
reiterating the well-settled legal position in this regard as follows:
So far as the applicability of Section 50 is concerned, the High Court's view
is clearly indefensible. Section 50 reads as follows:
Conditions under which search of persons shall be conducted.--(1) When any
officer duly authorised 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
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
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."
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 Maharashtra1, State of Punjab v. Baldev
Singh2 and Gurbax Singh v. State of Haryana3.)
language of Section 50 is implicitly (sic explicitly) 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 case2.
question was examined in Madan Lal v. State of H.P.4
being the position, the finding regarding non- compliance with Section 50 of
the Act is also without any substance."
As far as delay in sending the samples are concerned, we find the
said contention untenable in law. Reference in this regard may be made to the
decision of this Court in Hardip Singh case (supra), wherein there was a 11 gap
of 40 days between seizure and sending the sample to chemical examiner. Despite
the said fact the Court held that in view of cogent evidence that opium was
seized from the appellant and the seals put on the sample were intact till it
was handed over to the chemical examiner, delay itself is not fatal to
prosecution case. In the present appeal, the contraband goods were recovered
from the possession of the appellant on 19.02.1998 and the same were sent to
the chemical examiner for chemical examination on 23.02.1998, the aforesaid
delay has no consequence for the fact that the recovery of the said sample from
the possession of the appellant stands proved and established by cogent and
reliable evidence led in the trial.
it cannot be said that there was any delay in sending the said sample for
examination. Since the appellant was sitting on the two bags and her conduct on
turning her face towards the village on seeing the police party and thereafter
telling the police party on asking by the police that the said bags contained
poppy husk clearly establishes that she was in conscious possession of the
contraband goods. So far as examination of no independent witness is concerned,
we find that there was only one independent witness at the time of recovery of
the contraband goods, who was won over by the defence. It is established from
the facts that the said independent witness was examined by the defence as her
witness in the 12 trial. It is not disclosed that any other independent person
was present at the time of search and at the time of recovery of the contraband
goods, and therefore, it cannot be said that the search and recovery are in any
In this view of the matter, we find no merit in this appeal.
Accordingly, the appeal is dismissed.
................................J. (Dr. Mukundakam Sharma)