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TMI Blog2015 (4) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. - CRIMINAL APPEAL NO. 1393 OF 2010 - - - Dated:- 17-4-2015 - Dipak Misra And S.A. Bobde JJ For the Appellant : Ms. Aishwarya Bhati, Adv.,Mr. T. Gopal, Adv.,Ms. Neha Meena, Adv.,Ms. Madhurima Ghosh, Adv.,Mr. Hemendra Sharma, Adv.,Mr. Adarsh K. Tiwari, Adv. For the Respondent : Mr. Shiv Mangal Sharma, AAG, Mr. Akshat Anand, Adv.,Mr. Shrey Kapoor, Adv. Judgment Dipak Misra, J. Calling in question the legal pregnability of the judgment and order dated 16.7.09 passed by the learned Single Judge of the High Court of Judicature of Rajasthan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for FSL examination. The remaining substance and other items were separately sealed. After receiving the FSL report and completing the investigation, chargesheet under Section 18 of the NDPS act and Sections 457 and 380 of the IPC was filed before the appropriate Court and eventually the matter travelled to the Court of Session. The accused pleaded not guilty and claimed to be tried. 3. The prosecution, in order to substantiate the charges, examined 14 witnesses. The main witnesses are Ummed Singh, PW-6, the concerned, Magistrate, Narain Singh, PW-4, the Criminal Clerk, in-charge of Malkhana, ASI, Achlu Ram, PW-13, ASI Hanuman Singh, PW-3, Koja Ram, PW-10, Gulab Singh, PW-14, and Su-Inspector-cum-SHO, Bheem Singh, PW- 12 are witnesses to the recovery. The FSL report was exhibited as Exhibit P-14. The defence chose not to examine any witness. 4. The learned trial Judge, on the basis of the evidence brought on record, found the accused guilty of the charges and accordingly convicted him, as has been stated hereinbefore. In appeal, it was contended that incident, as per the prosecution, had occurred between 12th/13th November, 1985 on which date the NDPS Act was not in force, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d principle of criminal jurisprudence that the accused cannot be subject to an offence under a new Act which was not in force on the date of theft and the possession of contraband articles, as a matter of fact, had taken place prior to coming into force of the NDPS Act. She has commended us to the decision in Harjit Singh v. State of Punjab (2011) 4 SCC 441 Learned counsel would also contend that there can be rationalization of structure of punishment, which is an ameliorative provision, for it reduces the punishment and the same can be made applicable to category of accused persons. In that regard, she has drawn inspiration from Rattan Lal v. State of Punjab (1983) 1 SCC 177 , T. Barai v. Henry Ah Hoe (1983) 1 SCC 177 , Basheer v. State of Kerala (2004) 3 SCC 609 and Pratap Singh v. State of Jharkhand (2005) 3 SCC 551 Pyramiding the said facet, it is urged by Ms. Bhati that in the instant case, the sentence being higher for the offence of possession under the NDPS Act, such a provision cannot be made retrospectively applicable to him. To appreciate the said submission, it is appropriate to refer to Section 9 of the Opium Act. It reads as follows:- 9. Penalty for illegal cultiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classical theory of English law on the term possession is fundamentally dominated by Savigny-ian corpus and animus doctrine. Distinction has also been made in possession in fact and possession in law and sometimes between corporeal possession and possession of right which is called incorporeal possession . Thus, there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression. The word possession may have one meaning in one connection and another meaning in another. 9. The term possession consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of possession given in Black s Law dictionary is as follows: Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel 219 Kan. 616, 549 p.2d 568, 569 . The detention and control or the manual or ideal custody, of anything which may be the subject of property, for one s use and enjoyment, either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute possession of a concealable weapon under statue proscribing possession of a concealable weapon by a felon, it is sufficient that defendant have constructive possession and immediate access to the weapon. State v. Kelley 12 Or.APP. 496 507 P.2d 837, 837. 10. In Stroud s dictionary, the term possession has been defined as follows: Possession (Drugs (Prevention of Misuse) Act 1964 (c. 64), s.1 (1)). A person does not lose possession of an article which is mislaid or thought erroneously to have been destroyed or disposed of, if, in fact, it remains in his care and control (R. v. Buswell [1972] 1 W.L.R. 64). 11. Dr. Harris, in his essay titled The Concept of Possession in English Law Published in Oxford Essays on Jurisprudence (Edited by A G Guest, First Series, Clarendon Press, Oxford. while discussing the various rules relating to possession has stated that possession is a functional and relative concept, which gives the Judges some discretion in applying abstract rule to a concrete set of facts. The learned author has suggested certain factors which have been held to be relevant to conclude whether a person has acquired possession for the purposes of a parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object. 12. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word possession refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows:- 35. Presumption of culpable mental state. - (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. - In this section culpable mental state includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. 14. In Bhola Singh v. State of Punjab (2011) 11 SCC 653, the Court, after referring to the pronouncement in Noor Aga (supra), concurred with the observation that only after the prosecution has discharged the initial burden to prove the foundational facts, then only Section 35 would come into play. While dislodging the conviction, the Court stated:- it is apparent that the initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting narcotics still lay on the prosecution, as would be clear from the word knowingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden by the prosecution will not nail him with. offence Offences under the Act being more serious in nature higher degree of proof is required to convict an accused. 13. It needs no emphasis that the expression possession is not capable of precise and completely logical definition of universal application in the context of all the statutes. Possession is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18 of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge. xxx xxx xxx xxx 15. From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the 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 accusedappellant 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, as we find, 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. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enhancing the punishment. Therefore, if a person is in possession of the banned substance on the date when the NDPS Act was enforced, he would commit the offence, for on the said date he would have both the corpus and animus necessary in law. 18. We would be failing in our duty, if we do not analyse the decision in Harjit Singh (supra). In the said case the Court was dealing with the Notification dated 18.11.2009 that has replaced the part of the Notification dated 19.10.2001. Dealing with the said aspect, the Court held:- 13. Notification dated 18-11-2009 has replaced the part of the Notification dated 19-10-2001 and reads as under: In the Table at the end after Note 3, the following Note shall be inserted, namely: (4) The quantities shown in Column 5 and Column 6 of the Table relating to the respective drugs shown in Column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Code, 1973, (CrPC) the Court has stated that the expression continuing offence has not been defined in CrPC because it is one of those expressions which does not have a fixed connotation and, therefore, the formula of universal application cannot be formulated in this respect. The court referred to Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan AIR 1959 SC 798 , Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath (1991) 2 SCC 141 and eventually held thus: Thus, in view of the above, the law on the issue can be summarised to the effect that, in the case of a continuing offence, the ingredients of the offence continue i.e. endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue. 21. In this context, it would be fruitful to refer to a threeJudge Bench decision in Maya Rani Punj v. Commissioner of Income Tax, Delhi (1986) 1 SCC 445. In the said case, the Court approved what has been said by the High Court of Bombay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution Bench explaining the position opined that Abdul Rashid (supra) did not require about literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham (supra) hold that requirement of Section 42(1) and 42(2) need not be fulfilled at all. The larger Bench summarized the effect of two decisions. The summation is reproduced below:- (a) The officer on receiving the information of the nature referred to in sub-section (1) of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The aforesaid view gets support from the decisions in Directorate of Revenue and Anr. v. Mohammed Nisar Holia (2008) 2 SCC 370 and State, NCT of Delhi v. Malvinder Singh (2007) 11 SCC 314 . 26. Learned counsel for the appellant has also contended that there has been non-compliance of Section 57 of the NDPS Act, which reads as follows:- Report of arrest and seizure - Whenever any person makes any arrest or seizure under this Act, he shall, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt was also dealing with the application of the provisions of Section 57 of the Act which are worded differently and have different requirements, as opposed to Sections 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to pre-search . The question of sending it immediately thereafter does not arise in the present case, as it is an admitted position that there is total non-compliance with Section 42 of the Act. The sending of report as required under Section 57 of the Act on 20-7-2000 will be no compliance, factually and/or in the eye of the law to the provisions of Section 42 of the Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Sections 42, 50 and 57 of the Act. They are neither interlinked nor interdependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases. 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge as well as the High Court has, by cogent and coherent reasons, accepted the recovery. On a scrutiny of the same, we also find that there is nothing on record to differ with the factum of recovery of the contraband articles. 31. Another submission that has been advanced by the learned counsel for the appellant is that the seized articles were not sent immediately for chemical examination. 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. In Hardip Singh v. State of Punjab (2008) 8 SCC 557 , a two-Judge Bench while dealing with the question of delay in sending the samples of opium to the FSL, opined that it was of no consequence, for the fact of the recovery of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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