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2015 (4) TMI 688 - SC - CustomsConviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985 - Offence punishable under Sections 457 and 380 of the Indian Penal Code - Assessee broke open the lock of the malkhana of the Court and stolen the opium - accused appellant led to discovery - Held that - the term possession for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. - requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. - person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. - Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the accused-appellant cannot take the plea that he had committed an offence under Section 9 of the Opium Act and not under Section 18 of the NDPS Act. After dealing with the concept of possession, we think it apt to address the issue raised by the learned counsel for the appellant that he could have convicted and sentenced under the Opium Act, as that was the law in force at the time of commission of an offence and if he is convicted under Section 18 of the NDPS Act, it would tantamount to retrospective operation of law imposing penalty which is prohibited under Article 20(1) of the Constitution of India. Article 20(1) gets attracted only when any penal law penalises with retrospective effect i.e. when an act was not an offence when it was committed and additionally the persons cannot be subjected to penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. The Article prohibits application of ex post facto law. In Rao Shiv Bahadur Singh and Anr. v. State of Vindhya Pradesh 1953 (5) TMI 12 - SUPREME COURT , while dealing with the import under Article 20(1) of the Constitution of India, the Court stated what has been prohibited under the said Article is the conviction and sentence in a criminal proceeding under ex post facto law and not the trial thereof. High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to comply with sub Sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non-compliance of Section 42(2) does not arise. On perusal of the evidence, it is clear that there has been substantial compliance of Section 57 of the NDPS Act and, therefore, the question of prejudice does not arise. There is no shadow of doubt that the accused-appellant was in police custody. Section 27 of the Indian Evidence Act, 1872 provides that when any fact is deposed to as discovery in consequence of the information received from a person accused of any offence in custody of a police officer, so much of such information whether it amounts to confession or not as relates distinctly to the fact thereby discovered may be proved. It is well settled in law that the components or portion which was the immediate cause of the discovery could be acceptable legal evidence See A.K. Subraman and Others v. Union of India and Others 1974 (12) TMI 71 - SUPREME COURT The words employed in Section 27 does not restrict that the accused must be arrested in connection with the same offence. The FSL report, Ex. P-14, dated 15.9.1986 states that a letter along with a sealed packet was received with seals intact. The said report further mentions that packet was covered in white cloth and on opening of the packet, the examiner found a cylindrical tin and the substance on examination was found to be an opium having 1.44% morphine. The seal being intact, the description of the case number and the impression of seal having been fixed on memo of recovery, there is no reason or justification to discard the prosecution case on the ground of delay on this score. - Decided against the appellant.
Issues Involved:
1. Legal applicability of NDPS Act versus Opium Act. 2. Concept and proof of "possession" under NDPS Act. 3. Compliance with procedural requirements under NDPS Act, specifically Sections 42 and 57. 4. Validity of evidence obtained through disclosure statements. 5. Delay in sending seized articles for chemical examination. Issue-wise Detailed Analysis: 1. Legal Applicability of NDPS Act versus Opium Act: The appellant contended that the NDPS Act, which came into force on 14.11.1985, should not apply to the theft of contraband substances that occurred on the intervening night of 12th/13th November 1985. The Court held that the appellant's possession of the contraband continued even after the NDPS Act came into force, making the offence punishable under Section 18 of the NDPS Act rather than Section 9 of the Opium Act. The Court emphasized that possession is a continuing offence, and the appellant was in possession of the contraband when the NDPS Act was enacted, thus falling under its purview. 2. Concept and Proof of "Possession" under NDPS Act: The Court discussed the concept of "possession," emphasizing that it includes both physical control and mental intent (animus). The Court referred to various legal definitions and precedents to establish that possession under the NDPS Act implies conscious possession. The appellant had the requisite degree of control over the contraband substance, and his actions demonstrated the necessary animus to exercise dominion over it. The Court concluded that the appellant was in possession of the contraband when the NDPS Act came into force, thus making him liable under Section 18 of the Act. 3. Compliance with Procedural Requirements under NDPS Act: The appellant argued non-compliance with Sections 42 and 57 of the NDPS Act. The Court noted that the information was given to the competent authority, and the recovery was made by an empowered officer in a public place, thus invoking Section 43 instead of Section 42. The Court referred to the Constitution Bench decision in Karnail Singh v. State of Haryana, which allows for delayed compliance with satisfactory explanation. The Court found substantial compliance with Section 57, as the report of arrest and seizure was made within the stipulated time, dismissing the appellant's contention. 4. Validity of Evidence Obtained through Disclosure Statements: The appellant contended that his disclosure statement made while in custody for a different case (FIR No. 95 of 1985) should not be used for the present case (FIR No. 96 of 1985). The Court held that Section 27 of the Indian Evidence Act allows for the admissibility of such statements if they lead to the discovery of a fact. The Court found that the recovery of the contraband was proven through the appellant's disclosure, making the evidence valid and admissible. 5. Delay in Sending Seized Articles for Chemical Examination: The appellant argued that the delay in sending the seized articles for chemical examination should vitiate the prosecution's case. The Court referred to the FSL report, which confirmed that the seals on the packet were intact, ensuring no tampering. The Court cited the case of Hardip Singh v. State of Punjab, where a similar delay was deemed immaterial as long as the integrity of the sample was maintained. The Court concluded that the delay did not affect the validity of the evidence. Conclusion: The Supreme Court dismissed the appeal, affirming the conviction and sentence under Section 18 of the NDPS Act. The Court found that the appellant was in conscious possession of the contraband when the NDPS Act came into force, and there was substantial compliance with procedural requirements. The evidence obtained through the appellant's disclosure was valid, and the delay in sending the seized articles for chemical examination did not prejudice the case.
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