2003 (8) TMI 474 - SC - Customs

Whether there was any non-compliance of Sections 42 and 50 of the Act as pleaded? Held that - Appeal dismissed. 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. In 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. he presumption available by application of logic flowing from Sections 35 and 54 of the Act clearly applies to the facts of the present case

Issues Involved:
1. Compliance with Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Alleged tampering with the samples.
3. Conscious possession of contraband articles.
4. Role of the driver in the commission of the offense.

Detailed Analysis:

1. Compliance with Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985:

The appellants argued that the mandatory requirements of Sections 42 and 50 were not complied with, rendering the trial vitiated. Section 42 involves the power of entry, search, seizure, and arrest without a warrant, while Section 50 pertains to the conditions under which the search of persons shall be conducted. The evidence from witnesses PWs. 5, 8, and 11 indicated that the information regarding the transportation of charas was promptly transmitted to the Superintendent of Police. The High Court verified the original register and found no discrepancies in the entries. Consequently, the contention regarding non-compliance with Section 42 was dismissed.

Regarding Section 50, it was clarified that this provision applies only to the personal search of a person and not to the search of a vehicle, container, or bag. This interpretation was supported by precedents such as Kalema Tumba v. State of Maharashtra and Anr., The State of Punjab v. Baldev Singh, and Gurbax Singh v. State of Haryana. Therefore, the argument concerning non-compliance with Section 50 was also found to be without merit.

2. Alleged Tampering with the Samples:

The appellants claimed that there was tampering with the samples as the weight was less than indicated. However, both the Trial Court and the High Court found that the seals were intact and there was no tampering. The minimal variation in weight was deemed negligible and did not warrant interference with the findings. Thus, the plea of sample tampering was rejected.

3. Conscious Possession of Contraband Articles:

The appellants contended that there was no conscious possession of the contraband articles. The term "possession" was discussed in depth, highlighting that it must be coupled with the requisite mental element, i.e., conscious possession. The evidence showed that all the accused were traveling together in a non-public vehicle and were known to each other. The concept of "conscious possession" was supported by Sections 35 and 54 of the Act, which allow for presumptions to be drawn from possession of illicit articles. The Court concluded that the appellants had conscious possession of the charas, as they were aware of the transportation and each had a role in it.

4. Role of the Driver in the Commission of the Offense:

The appellant Manjit Singh, who was the driver of the vehicle, argued that he was merely driving and unaware of the contents. However, the Court found that the logic applicable to other accused also applied to him. His role as a driver did not exempt him from the presumption of conscious possession established under Sections 35 and 54 of the Act.

Conclusion:

The Supreme Court found no infirmity in the judgments of the Trial Court and the High Court. The appeals were dismissed, upholding the conviction and sentences of the accused. The judgment emphasized the importance of compliance with statutory provisions and the concept of conscious possession in narcotic cases.

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