Facts Of The Case:
In this case, the appellants and one other person faced trial for the alleged commission of an offense punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ["NDPS ACT, 1985"]. All the five accused who were found guilty of the alleged offense were sentenced to undergo rigorous imprisonment for a term of 10 years and were ordered to pay compensation of Rs. 1 Lakh. Later on, the High Court of Himachal Pradesh at Shimla dismissed the appeals filed by the accused-appellants. In Appeals Nos. 786 and 788 of 2002 at the Special Leave Petition (SLP) stage, there were four petitioners. The SLP so far as petitioner Goyal Nath is concerned, was dismissed by an order dated 05-08-2002.

On 05th October 1999, Assistant Superintendent of Police (ASP) namely Sunder Lal received a secret phone call wherein it was communicated that a blue Maruti Esteem car bearing Number CHO-IE-2764 was coming towards Oachghat was transporting Charas. The ASP reduced the said information in writing and directed the SHO, Police Station Salon to share the same information with the Superintendent of Police (SP) and then immediately reach to the final destination where the said car was about to arrive. The SHO formed a raiding party consisting of two personnel. The raiding party reached the spot and stopped the blue car. It was found that the accused Manjit Singh was driving the car and the remaining accused persons were sitting therein.

Recovery On Personal Search:
In the presence of witnesses, one of the members of the raiding party namely Jainarain provided the option to the accused person as to whether they wanted to be searched by a Magistrate or by him. The accused-appellants consented to be searched by him. On personal search of the accused persons nothing suspicious was found in their possession. However, when the car was being searched, a black-colored bag was found inside the car. The bag contained a steel doloo kept in a plastic bag.

The said doloo contained 820 grams of charas. After separating two samples of 25 grams each, the remaining charas were separately sealed and samples were sent to the Officer-in-Charge, Police Station Solan for registration of a case.

Registration Of The F.I.R.:
On the basis of the said information, an FIR was registered at the police station. The car along with the documents and the key was also seized. Further, the sealed parcels of the case property were handed over to the SHO, who resealed them. The samples were analysed by the Chemical Examiner and it was found thereof that the samples were that of charas. After being satisfied regarding the commission of offence under Section 20 of the Act, a charge-sheet was submitted and further the charges were framed and the accused persons faced trial.

Submissions By The Parties:
Appellants:
Learned amicus curiae appearing for the accused-appellants submitted that the prosecution was totally without basis and there were several irretrievable infractions od statutory provisions which render the trial vitiated and consequently, the judgments are unsustainable. Additionally, the counsel on behalf of the Appellants submitted that the mandatory requirements of sections 42 and 50 were not complied with.

Further, it was submitted that 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, the other accused-appellants should not have been convicted. There was no material to prove that there was any conscious possession of the contraband articles. Moreover, it was submitted that the accused-appellant Manjit Singh was only the driver of the vehicle and was not supposed to know what the other occupants were bringing.

Respondents:
The Counsel on behalf of the respondents, Learned Additional Advocate General appearing for the State of Himachal Pradesh, submitted that all the points presently urged were considered by the trial court and the High Court, and after detailed analysis of the legal and factual position have been rightly rejected.

Issues:

1. Whether There Was Any Non-compliance With Sections 42 And 50 Of The NDPS Act, 1985?
2. Whether There Was Conscious Possession?

Analysis:
Hon'ble Court dealt with Section 42 and Section 50 separately before pronouncing the judgment. Section 42 deals with the power of entry, search, seizure and arrest without warrant or authorization to any such officer (superior in rank to a peon, sepoy or constable) who has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offense punishable under the NDPS Act has been committed. Section 42(2) states that 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 thereto to his immediate official superior.

The Hon'ble Court while dealing with the issue of non-compliance with Section 42 answered that the materials clearly establish that the information was sent without delay to the immediate superior officer i.e. Superintendent of Police (SP). That being the position the Court held that the contention regarding con-compliance with provisions of Section 42 is clearly without substance.

Then the Court proceeded to deal with the issue of non-compliance with provisions of Section 50 which pertains to conditions under which search of persons shall be conducted. The Court highlighted that a bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. In this regard, the Court placed reliance on Kalema Tumba v. State of Maharashtra[1], State of Punjab v. Baldev Singh,[2] and Gurbax Singh v. State of Haryana[3].

The Court held that the language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to the search of premises, vehicles, or articles. The Court emphasised that this position was settled beyond doubt by the Constitution Bench in the Baldev Singhs Case. Above being the position, the contention regarding non-compliance with Section 50 of the NDPS Act is also without any substance.

Further, the Court dealt with the second issue regarding whether there was conscious possession. The plea arose from the statement of the accused Goyal Nath that he alone was in possession of the contraband bags. This plea centered around the statement of Jainarain (PW1) who stated that Goyal Nath told him that the contraband articles belonged to him.

The court found that the statement was made totally out of context and no credence can at all be attached to the statement. The accused Goyal Nath in his examination under Section 313 of the Code of Criminal Procedure (CrPC), 1973 did not state that he alone was in possession of the contraband articles. On the contrary, he stated that he did not know anything about the alleged seizure.

The Court highlighted that this issue of possession needs to be determined with reference to the factual backdrop. The facts that can be culled out from the evidence on record were all that all the accused persons were traveling in a vehicle and as noted by the trial Court they travelled together from the same destination in a vehicle which was not a public vehicle.

The Court took reference to Section 20(b) of the act which makes possession of contraband articles an offence. Moreover, in order to make the possession illicit, there must be a conscious possession. It should be noted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 will not be attracted.

Understanding the terms "Conscious" & "Possession":
In this case, the Court clarified the concept of the terms "conscious" & "possession". The expression "possession" is a polymorphous term which assumes different color in different contexts. It may carry different meanings in contextually different backgrounds. In the case of Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja[4] the Court observed that it is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes.

The word "Conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. The word "possession" means the legal right to possession[5]. In Gunwantlal v. State of M.P.[6] it was noted that possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.

Judgment:
The Court held that 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 possession because of the 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.

Further, the Court held that in the instant case, not only possession but conscious possession has been established. It has not been shown by the appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act and the evidence clearly establishes that they knew about the transportation of charas, and each had a role in the transportation and possession with conscious knowledge of what they were doing.

The Court stated that the accused-appellant Manjit Singh does not stand on a different footing merely because he was the driver of the vehicle. The logic applicable to other accused also applies to the driver Manjit Singh. Therefore, the presumption available by application of logic flowing from Sections 35 and 54 of the Act clearly applies to the facts of the present case and the judgment of the trial Court and the High Court suffer from no infirmity to warrant interference, and hence the appeal was dismissed by the Hon'ble Court.

End Notes:

1. (1999) 8 SCC 257: 1999 SCC (Cri) 1422 : JT (1999) 8 SC 293.
2. (1999) 6 SCC 172: 1999 SCC (Cri) 1080 : JT (1999) 4 SC 595.
3. (2001) 3 SCC 28: 2001 SCC (Cri) 426.
4. Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, AI.R 1980 SC 52.
5. Heath v. Drown, (1972) 2 All ER 561: 1973 AC 498: (1972) 2 WLR 1306 (HL).
6. Gunwantlal v. State of M.P. (1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756.

Written By: Amar Kumar Pandey