Punjab Vs. Lakhwinder Singh & ANR.  INSC 253 (5 April 2010)
SUPREME COURT OF INDIA CRIMINIAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 32
OF 2009 STATE OF PUNJAB ...APPELLANT VERSUS
The present appeal is an appeal filed by the State of Punjab
challenging the judgment and order dated 20.08.2007 passed by the High Court of
Punjab & Haryana whereby the High Court acquitted the respondents herein of
the charge under Section 15 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 [for short "NDPS Act"], thereby 1 reversing the judgment
and order of conviction and sentence passed by the trial Court, i.e., the
Special Court, Patiala. The trial Court convicted the respondents herein under
the aforesaid section and sentenced each of them to suffer rigorous
imprisonment for a period of 12 years and to pay a fine of Rs. 1 lakh each, and
in default of payment of fine, to further undergo rigorous imprisonment for two
The prosecution case, in brief, is that on 23.04.2002 Sub-
Inspector, Tejinder Singh [PW-4], who was the then Station House Officer [for
short "SHO"] of the Police Station, Ghagga accompanied by
Sub-Inspector Ajaib Singh, Assistant Sub- Inspector Surinderpaljit Singh [PW-3]
and constables, viz., Faqir Chand, Kulwant Singh and other police officials
were present at village Shahpur and were going around in the course of their
routine duty of checking of the religious places in the said village. It was
during the course of patrolling that they also visited a temple of Udasi
Community on Shahpur Tilla and saw that on the nearby passage a man and woman
were sitting on some plastic 2 bags. As soon as the respondents saw the police
party, they tried to hide themselves behind the said bags. On seeing the
aforesaid conduct of the respondents, the police party became suspicious and
therefore approached them to enquire from them their identity. Respondent no. 1
gave his name as Lakhwinder Singh @ Lakha whereas the woman [respondent no. 2]
disclosed her name as Balwinder Kaur.
The SHO [PW-4] then informed the respondents about his suspicion
of the said bags containing contraband and also of his intention to conduct a
search of the bags.
PW-4 offered them as to whether they wanted to be searched by him or by a
Gazetted Officer or a Magistrate. At this, respondents refused to be searched
by PW-4 and consequently, the Sub-Inspector sent a wireless message to send a
Gazetted Officer or a Magistrate. Upon this Jaspreet Singh Sindhu, DSP, Samana
arrived at the said place and disclosed his identity to the accused persons and
separately asked the respondents as to whether they wanted their search to be
conducted by a Gazetted Officer or a Magistrate. Lady Constable Harjit Kaur was
also called 3 at the spot. On being so asked, both the respondents gave their
consent to be searched before the DSP. In the meantime, Gurnam Singh, Lamberdar
of village Kakrala also joined the police party and he also thumb marked the
consent memo. Thereafter, a search of the bags on which the respondents were
sitting, numbering 35, was conducted and poppy husk was found in all the 35
On recovery of the aforesaid poppy husk from the said bags, two
samples of 250 grams each were separated from each bag and separate parcels
were prepared. The bags were numbered from Nos. 1 to 35. The bags as well as
the sample parcels were separately sealed by PW-4 with his seal TS, and the
sample seal was separately prepared. The seal after use was handed over to
Gurnam Singh, Lamberdar of village Kakrala. The case property was taken into
possession through recovery memo. Intimation for grounds of arrest was given to
the respondents and they were accordingly arrested and on return to the police
station, case property was deposited with the MHC. The case property and the
sample parcels were produced before the 4 learned Sub-Divisional Judicial
Magistrate, Samana on 24.04.2002. On the analysis of the samples, the Chemical
Examiner submitted a report whereby he confirmed the contents of the samples
seized and sealed to be poppy husk.
prepared and sent to the Police Station Ghagga, on the basis of which a formal
First Information Report was drawn and registered. After completing the
investigation, the challan was presented in the Court.
The trial Court after receipt of the chargesheet filed under
Section 15 of the NDPS Act charged the respondents under the said Section. The
respondents herein pleaded not guilty to the charge and claimed trial.
Consequently, a trial was conducted, during the course of which, the
prosecution examined four witnesses whereas the defence examined none. The
respondents were examined under Section 313 CrPC.
Upon completion of the trial, the learned Judge, Special Court,
Patiala passed a judgment and order dated 07.07.2005 whereby the trial Court
convicted the 5 respondents herein under Section 15 of the NDPS Act and
sentenced them as aforesaid.
Being aggrieved by the aforesaid judgment and order of conviction
and sentence, the respondents herein filed an appeal before the High Court of
Punjab and Haryana. The High Court after hearing the parties passed a judgment
and order dated 20.08.2007 allowing the appeal filed by the respondents herein.
The Division Bench of the High Court set aside the order of conviction and
sentence passed by the trial Court and acquitted the respondents of all the
aggrieved by the aforesaid order of acquittal, the present appeal was filed by
the State of Punjab on which we have heard the learned counsel appearing for
The counsel appearing for the State submitted before us that the
order of acquittal is palpably wrong and perverse. It was also submitted that
the findings recorded by the High Court that there were glaring discrepancies
in the prosecution case is based on irrelevant materials and that the order of
acquittal was passed on frivolous grounds. It was also submitted by the counsel
appearing for the 6 appellant that conscious possession of the illegal substance
by the respondents was established and the said finding having not been
discredited, the High Court was not justified in interfering with the order of
conviction recorded by the trial Court.
In order to appreciate the aforesaid contention, we have gone
through the records. The discrepancies which are referred to by the High Court
as glaring discrepancies appear to us to be very minor discrepancies which do
not in any manner affect the sub-stratum of the case and the offence alleged
against the respondents. The High Court has held that both the respondents were
required to be acquitted because Surinderpaljit Singh [PW-3] had stated that
the seal was handed over to Gurnam Singh, Lamberdar of village Kakrala whereas
the Investigating Officer had stated that the seal was handed over to
Sub-Inspector Ajaib Singh. The other ground which was considered and relied
upon by the High Court for acquitting the respondents was that the DSP, who had
been called at the option of the respondents who wanted to be searched in front
of the 7 gazetted officer was not brought into the witness box and was given up
by the prosecution as being unnecessary.
grounds which have been recorded by the High Court for acquitting the
respondents were that the police officials were travelling in a private jeep
but the number of that jeep was not given by the prosecution and that the Sub-
Inspector Tejinder Singh [PW-4], the Investigation Officer did not
categorically say as to who was driving the jeep and who was the owner of the jeep.
The High Court has also held that the delay of about seven days in sending the
samples of the case property to the Forensic Science Laboratory was fatal,
inasmuch as in the intervening period tampering of the case property could have
been easily done.
aforesaid reasons, the High Court passed the order of acquittal.
Counsel appearing for the respondents disputed the fact of
conscious possession by the respondents and submitted that merely because the
respondents were sitting on the bags it could not be said that they were in
conscious possession of the bags. The expression "possession" came to
8 be analysed by this Court in several decisions. The first case in point of
time to which our attention was drawn is the decision in the case of Inder Sain
v. State of Punjab reported in (1973) 2 SCC 372. In the said decision also this
Court was called upon to answer the question as to whether the appellant was in
possession of opium. In the said decision, this Court held that the word
"possess" connotes some sort of knowledge about the thing possessed.
It was also held that the prosecution must prove that accused was in control of
something in the circumstances which showed that he was assenting to being in
control of it. This Court further held that once it is proved by the
prosecution that the accused was in physical custody of opium, it is for the
accused to prove statutorily that he has not committed an offence by showing
that he was not knowingly in possession of opium. Thus, the burden of proving the
fact that the accused was not knowingly in possession of the contraband would
lie on the shoulders of the accused person.
Section 15 of the NDPS Act makes possession of contraband articles
an offence. Section 15 appears in 9 Chapter IV of the Act which relates to the
offence of possession of poppy straw.
In Madan Lal and another v. State of H.P. reported in (2003) 7 SCC
465 this Court held that 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 of the same is within his special knowledge. It was also
held in that case that Section 35 of the Act gives a statutory recognition to
this position by making it a statutory 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.
In Gunwantlal v. State of M.P. reported in (1972) 2 SCC 194 it was
held by this Court that 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
also is subject to such power or control.
In the backdrop of the aforesaid settled position of law we have
to examine the facts of the present case in order to hold as to whether or not
the respondents could be said to have been in conscious possession of the
was led by the prosecution to establish that the respondents were found sitting
on the aforesaid bags of poppy husk. It was also stated by the Sub-Inspector as
also the Assistant Sub-Inspector that the presence of the accused respondents
at such an early hour, i.e., 8.00 a.m.
religious place with such large number of bags and their sitting on them and on
seeing the police party their conduct of trying to hide themselves behind the
bags prove and establish that they were in possession of the aforesaid bags.
The very fact that they tried to hide themselves behind the bags made the
police party suspicious about the contents of the bags which led to a search of
the said bags and on search being carried out in accordance with law, the
aforesaid suspicion that the bags contained contraband was confirmed.
The respondents, during the trial, could not give any satisfactory
reply as to how and why they came from Haryana and were found sitting on bags
of poppy husk.
subsequent conduct of hiding behind the bags also shows their guilty mind.
Reference could also be made to Exhibits PC and PD which are memos
prepared by the Investigating Officer. In the said memos, it was clearly stated
that the contraband was contained in the bags which were kept in the possession
of the respondents. There were separate memos prepared and each one of them is
signed by the two respondents respectively and separately. The aforesaid
documents, therefore, clearly establish that the respondents were in possession
of the said contraband. The evidence adduced by both the Sub-Inspectors as also
by the Assistant Sub- Inspector examined as PW-3 and PW-4 also prove and
establish that both the respondents were in conscious possession of the
contraband goods. So far as the seizure of the contraband goods is concerned,
the discrepancies pointed out by the High Court in our opinion are very minor
12 and they are not very material. The prosecution has been able to establish
and prove that the aforesaid bags which were 35 in number contained poppy husk
and accordingly the same were seized after taking samples therefrom which were
properly sealed. The defence has not been able to prove that the aforesaid
seizure and seal put in the samples were in any manner tampered with before it
was examined by the Chemical Examiner. There was merely a delay of about seven
days in sending the samples to the Forensic Examiner and it is not proved as to
how the aforesaid delay of seven days has affected the said examination when it
could not be proved that the seal of the sample was in any manner tampered
with. The seal having been found intact at the time of the examination by the
Chemical Examiner and the said fact having been recorded in his report, a mere
observation by the High Court that the case property might have been tampered
with, in our opinion is based on surmises and conjectures and cannot take the
place of proof.
We may at this stage refer to a decision of this Court in Hardip
Singh v. State of Punjab reported in (2008) 8 SCC 557 in which there was a
delay of about 40 days in sending the sample to laboratory after the same was
seized. In the said decision, it was held that in view of cogent and reliable
evidence that the opium was seized and sealed and that the samples were intact
till they were handed over to the Chemical Examiner, the delay itself was held
to be not fatal to the prosecution case. In our considered opinion, the ratio
of the aforesaid decision squarely applies to the facts of the present case in
The case property was produced in the Court and there is no
evidence to show that the same was ever tampered with.
Considering the facts and circumstances of the case, we are of the
considered opinion that the view taken by the High Court is palpably wrong and
the findings recorded are also perverse. In our considered opinion, the
aforesaid reasons which are stated hereinabove are sufficient and cogent
grounds to disturb the acquittal. Accordingly, the 14 judgments and order
passed by the High Court is set aside and the order of the trial Court is
The respondents, if at liberty, are hereby directed to surrender
forthwith and undergo the remaining term of imprisonment as directed by the
trial Court. The appeal stands disposed of in terms of the aforesaid order.
....................................J. [Dr. Mukundakam Sharma]
.......................................J. [A.K. Patnaik]
APRIL 5, 2010.