2009 Supreme(SC) 1178

2009(5) Supreme 744
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and Dr. B.S. Chauhan, JJ.
Balbir Kaur — Appellant
versus
State of Punjab — Respondent
Criminal Appeal No. 2108 of 2008
Decided on : 07-07-2009

IMPORTANT POINT
The issue with regard to conscious possession is to be determined on the fact situation of each case.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 15 – Conviction of appellant for being found in possession of two bags containing 61 Kgs. of poppy husk without any permit or licence – Appeal – Dismissed by High Court – Appeal – Appellant was found sitting on bags in road and seeing police party she behaved in a suspicious manner – Nothing to show that at that time any other person was present at the scene of occurrence – When appellant was asked about contents in bag she herself admitted that it contained poppy husk – Therefore, her possession of contraband goods was conscious possession – In view of concurrent findings of trial court and as also High Court holding that appellant was in conscious possession of the said contraband goods, allegation of non-disclosure of the purpose of search and grounds of arrest to her held 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 contraband goods – The violation of the provisions of the NDPS Act was clearly known to her – The allegation that she herself asked for such protection instead of prosecution giving her the option to be searched before a Gazetted Officer, as required under the law, not in any manner adversely affected her conviction and order of sentence passed by both the courts below – No prejudice could be shown by the appellant against the DSP, who was a Gazetted Officer and the lady officer present at the time of search – Contraband goods were recovered from the possession of the appellant on 19.02.1998 and same were sent to the chemical examiner for chemical examination on 23.02.1998 – Delay in question was of no consequence for the fact that the recovery of the said sample from the possession of the appellant stood proved and established by cogent and reliable evidence led in the trial – So far as examination of no independent witness is concerned, there was only one independent witness at the time of recovery of the contraband goods, who was won over by the defence – It was not disclosed that any other independent person was present at the time of search and at the time of recovery of the contraband goods – Hence it could not be said that the search and recovery were in any manner vitiated – Appeal having no merit dismissed. (Paras 9 to 14)

       Facts of the Case :

        Present appeal has been filed by appellant against her conviction by Courts below for being found in possession of two bags containing 61 Kgs of poppy husk without any permit or licence.

       Findings of the Court :

        Appellant was found sitting on bags in road and seeing police party she behaved in a suspicious manner. Nothing to show that at that time any other person was present at the scene of occurrence. When appellant was asked about contents in bag she herself admitted that it contained poppy husk. Therefore, her possession of contraband goods was conscious possession. In view of concurrent findings of trial court and as also High Court holding that appellant was in conscious possession of the said contraband goods, allegation of non-disclosure of the purpose of search and grounds of arrest to her held 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 contraband goods. The violation of the provisions of the NDPS Act was clearly known to her.The allegation that she herself asked for such protection instead of prosecution giving her the option to be searched before a Gazetted Officer, as required under the law, not in any manner adversely affectted her conviction and order of sentence passed by both the courts below. No prejudice could be shown by the appellant against the DSP, who was a Gazetted Officer and the lady officer present at the time of search. Contraband goods were recovered from the possession of the appellant on 19.02.1998 and same were sent to the chemical examiner for chemical examination on 23.02.1998. Delay was of no consequence for the fact that the recovery of the said sample from the possession of the appellant stood proved and established by cogent and reliable evidence led in the trial.So far as examination of no independent witness was concerned, there was only one independent witness at the time of recovery of the contraband goods, who was won over by the defence. It was not disclosed that any other independent person was present at the time of search and at the time of recovery of the contraband goods. Hence it could not be said that the search and recovery were in any manner vitiated. Appeal having no merit was dismissed.

       Result : Appeal dismissed.