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TMI Blog2003 (8) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT CRIMINAL APPEAL NOS. 788/2002 AND 905/2003 ARIJIT PASAYAT,J Since these three appeals involve identical issues they are disposed of by this common judgment. The appellants and one other person faced trial for alleged commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act ). All the five accused were found guilty of the alleged offence and all of them were sentenced to undergo rigorous imprisonment for a term of 10 years and to pay a fine of Rs.1 lakh with a default stipulation of a further rigorous imprisonment of 3 months in case of default to pay the fine. By the impugned judgment the High Court of Himachal Pradesh at Shimla dismissed the appeals filed by the accused appellants. In appeal Nos. 786/2002 and 788/2002 at the Special Leave Petition stage, there were four petitioners. The special leave petition so far as petitioner Goyal Nath is concerned was dismissed by an order dated 5.8.2002. Accusations which led to the trial of the accused appellants in a nutshell is as follows: On 5.10.1999, a secret telephonic message was recorded by Sunder Lal, A.S.P. (PW-11) that charas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was submitted that the mandatory requirements of Sections 42 and 50 were not complied with. Further, the officials had tampered with the samples as the weight of the sample was less than what was indicated. Elaborating the different pleas, it was submitted that there was no material to show that the information which was required to be transmitted to the superior authority was so done. Further, the finding that there was no requirement to comply with the requirement of Section 50 when a vehicle has been searched is not correct. When accused Goyal Nath whose SLP has been dismissed, admitted that the seized charas belonged to him, other accused appellants should not have been convicted. There was no material to prove that there was any conscious possession of the contraband articles. In case of accused-appellant Manjit Singh it was additionally submitted that he was only the driver of the vehicle and was not supposed to know what the other occupants were bringing. In response, it was submitted by learned Additional Advocate General appearing for the State of Himachal Pradesh that all the points presently urged were considered by the Trial Court and the High Court, and afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom he has reason to believe to have committed any offence punishable under this Act. Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment or evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. Section 50: Conditions under which search of persons shall be conducted- (1) When any officer duly authorized 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 nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. Coming to the plea that there was reduction in weight of the samples sent for analysis and there was tampering, it has to be noted that this aspect has also been considered by the Trial Court which has recorded the reasons for rejecting the same. It has been noted that the seals were intact and there was no tampering. The view has been endorsed by the High Court. On considering the reasoning indicated that there was very minimal and almost ignorable variation in weight, we find no reason to interfere with the findings. The other plea whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is given holds it subject to that power or control. The 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). 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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