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TMI Blog2009 (7) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... s going from village Shambu to Village Tepla, Rajgarh and Ram Nagar Sainia, for patrol duty and when the police party reached near the turning of Village Darian, the appellant was found sitting on two bags. It is alleged that on seeing the police party, the appellant turned her face towards her village. Due to the conduct and behaviour of the appellant and on suspicion, Sub Inspector Uttam Singh asked her about the contents of the bags. She replied by stating that the bags contained poppy husk. It was also alleged that in the meanwhile, Rajwant Pal Singh, an independent witness came there and he also joined the police party. It is alleged that then Sub Inspector Uttam Singh gave option to the accused whether she wanted to be searched before the Gazetted Officer or Magistrate to which she replied that she wanted to be searched before a Gazetted Officer and by a lady. Upon this Sub Inspector Uttam Singh sent wireless message to D.S.P. Harcharan Singh Bhullar and also requested for presence of a lady constable. In the meanwhile, D.P.S. Harcharan Singh Bhullar alongwith Charanjit Kaur, a lady SPO came to the aforesaid place. D.P.S. Harcharan Singh Bhullar thereafter disclosed his ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Order passed by the trial court after dismissing the appeal filed by the appellant herein. 5. Being aggrieved by the Judgment and Order passed by the High Court, the present appeal was filed by way of special leave. 6. Ms. Kamini Jaiswal, learned counsel appearing for the appellant submitted that no case of conviction and sentence was made out on the basis of evidence on record. It was also submitted by her that the appellant was a lady of about 70 years and that there was some bias of the police officers against her as she had initiated certain proceedings against them in the past. It was further submitted that there was no independent witness examined by the prosecution and it had examined only official witnesses although independent witnesses were present at the time of occurrence, who, however, deposed against the prosecution and in favour of the appellant. She also submitted that at the time of search of the appellant - accused, there was total non-compliance of Sections 52 and 57 of the NDPS Act inasmuch as the police officers did not inform her that she had a right to be searched in the presence of a Gazetted Officer and such a Gazetted Officer was made available only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void of any merit. Reference in this regard may be made to the decision of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172; Avtar Singh v. State of Punjab, (2002) 2 SCC 419; State of Punjab v. Balkar Singh, (2004) 3 SCC 582; Dilip v. State of M. P.; State of Haryana v. Mai Ram, (2008) 8 SCC 292; and Hardip Singh v. State of Punjab, (2008) 8 SCC 557. 9. In Madan Lal v. State of H. P., (2003) 7 SCC 465, it was held by this Court that the issue with regard to conscious possession is to be determined on the fact situation of each case. The Court observed as follows in relevant paras:: "19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution is concerned, we are of the view that no case of bias has been made out for the earlier proceedings which were initiated by the appellant herself by filing an application under section 438 CrPC for anticipatory bail. Another incident which is referred to and relied upon by the defence to show bias is that Sub Inspector Uttam Singh (PW-6) along with other police officials raided the appellant's residence but nothing incriminating was recovered from there. That itself does not make out a case of bias when she was found in broad light having in possession two bags of poppy husk. 11.In view of the concurrent findings of the trial court and as also the High Court holding that the appellant was in conscious possession of the said contraband goods, the allegation of non-disclosure of the purpose of search and the grounds of arrest to her are all of technical nature and without being any material force in them. The appellant herself knew that she was being searched for possession of contraband goods, and therefore, she had also sought for protection as provided under Section 52 and 57 of the NDPS Act. She was being searched and arrested on account of possession of contraban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench in Baldev Singh case2. A similar question was examined in Madan Lal v. State of H.P.4 16. Above being the position, the finding regarding noncompliance with Section 50 of the Act is also without any substance." 13. As far as delay in sending the samples are concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case (supra), wherein there was a gap of 40 days between seizure and sending the sample to chemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to prosecution case. In the present appeal, the contraband goods were recovered from the possession of the appellant on 19.02.1998 and the same were sent to the chemical examiner for chemical examination on 23.02.1998, the aforesaid delay has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial. Therefore, it cannot be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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