IMPORTANT POINTS
Meaning of possession would depend upon the object and purpose of the enactment.
Under NDPS Act, once possession is proved, the burden shifts to the accused to explain the same.
Non-compliance of section 42 is impermissible, but sufficient compliance or delayed compliance in exceptional circumstances is permissible
Section 27 of Evidence Act does not require that the accused must be arrested in connection with the same offence.
Delay in sending the sample for forensic analysis is not fatal.

Headnote:(a) Words and Phrases – Possession – Cannot be construed in the strict narrow sense of “actus of physical control and custody” – There may be “possession in fact”, “possession in law”, “corporeal possession” and “possession of right” or “incorporeal possession” – There is a degree of flexibility in the use of the term – Meaning of possession would depend upon the object and purpose of the enactment – An appropriate meaning has to be assigned to the word to effectuate the object of the enactment. (Para 8, 11)
       (b) Narcotic Drugs and Psychotropic Substances Act 1985 – Section 18 and 35 – Possession for section 18 and 35 means conscious possession – Section 35 raises a presumption as to knowledge and culpable mental state – Once possession is proved, the burden shifts to the accused to explain the same. (Para 12, 15, 16)
       (2008) 16 SCC 417; (2011) 11 SCC 653; (2010) 9 SCC 608 – Relied upon
       (2002) 7 SCC 419; (2004) 13 SCC 608 – Referred
       (c) Narcotic Drugs and Psychotropic Substances Act 1985 – Section 18 – FIR registered for possession of contraband one day prior to the act coming into force – Accused having possessed the contraband had the right and intention of using it even after coming into force of the Act – Still in possession of the contraband when the Act came into force – Offence u/s 18 is made out – Opium Act, 1878 not applicable. (Para 16)
       AIR 1965 SC 444; (1983) 1 SCC 177; (2004) 3 SCC 609; (2005) 3 SCC 551 – Referred
       (d) Constitution of India – Article 20(1) r/w section 18, NDPS Act – Prohibition on application of ex post facto law – What is prohibited is conviction and sentence under ex post facto law and not the trial thereof – Section 18 does not operate retrospectively – Instantly accused was still in possession when the act came into force – Possession continuing – Article 20(1) not attracted. (Para 17, 22)
       AIR 1953 SC 394; (1972) 2 SCC 890; (2013) 2 SCC 435; (1986) 1 SCC 445 – Relied upon
       AIR 1959 SC 798; (1991) 2 SCC 141; AIR 1955 Bom 161 – Referred
       (2011) 4 SCC 441 – Distinguished
       (e) Narcotic Drugs and Psychotropic Substances Act 1985 – Section 42 and 43 – Non-compliance of section 42 is impermissible – However sufficient compliance or delayed compliance in exceptional circumstances is permissible – Moreover search having been made in a public place, section 43 comes into play and section 42 is not attracted. (Para 25)
       (2009) 8 SCC 539; (2011) 8 SCC 130; (2008) 2 SCC 370; (2007) 11 SCC 314 – Relied upon
       (2000) 2 SCC 513; (2001) 6 SCC 692 – Referred
       (f) Indian Evidence Act, 1872 – Section 27 – The components or portion of a statement being the immediate cause of the discovery could be acceptable legal evidence – Statement of accused in one case leading to discovery of stolen contraband, subject matter of another case – Covered u/s 27 – Section 27 does not require that the accused must be arrested in connection with the same offence – Recovery rightly accepted. (Para 30)
       AIR 1976 SC 483 – Relied upon
       (g) Narcotic Drugs and Psychotropic Substances Act 1985 – Section 18 – Recovery proved – Seals on the sample intact – Description on forwarding memo matching – Delay not material. (Para 31)
       (2008) 8 SCC 557 – Relied upon
       Facts of the case:
       Appellant was convicted u/s 18 of the NDPS Act and sections 457 and 380, IPC.
       High Court affirmed the conviction and sentenced him to rigorous imprisonment for 10 years and pay a fine of Rs. 1 lakh, in default, to suffer one year simple imprisonment under the NDPS Act. He was separately sentenced u/s 457 and 380 IPC with a stipulation that all the sentences would run concurrently.
       Finding of the Court:
       There is no merit in the appeal.
       Result: Appeal dismissed.

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 at Jodhpur whereby the learned Single Judge has affirmed the conviction and sentence recorded by the learned Additional Sessions Judge, Jodhpur in Sessions Case No. 9 of 1986 convicting the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short, ‘the NDPS Act’) and sentencing him to suffer rigorous imprisonment for 10 years and pay a fine of Rs. 1 lakh, in default, to suffer one year simple imprisonment and also for offence punishable under Sections 457 and 380 of the Indian Penal Code (IPC) and imposing separate sentences for the said offences with a stipulation that all the sentences would run concurrently.

2. The relevant facts giving rise to the prosecution are that on 13.11.1985, at 9.30 a.m., Bhanwarlal, PW-8, posted in the Court of the Magistrate, Osian, lodged an FIR, exhibit P-3, at Police Station, Osian informing that when he went to the Court to meet the night chowkidar, he was absent and it was found by him that locks of the main gate of the malkhana were broken and the goods were scattered. An information was given at the concerned police station, but as the details of the stolen articles could only be provided by the Criminal Clerk after he came from the Diwali holidays, an FIR was lodged for an offence under Section 457 IPC. After the courts reopened, the Presiding Officer, Ummed Singh, PW-6, on being informed, visited the premises, got malkhana articles verified and got an inventory prepared by Narain Singh, Criminal Clerk, in-charge of Malkhana, PW-4, on 16.11.1985, and it was found that 10 kgs. 420 gms opium and some other articles were stolen from several packets. In course of investigation, the accused Mohan Lal was arrested for the offence punishable under Sections 457 and 380 IPC. While in custody, it was informed by him that he had broke open the lock of the malkhana of the Court and stolen the opium and kept it in a white bag and concealed it in a pit dug by him underneath a small bridge situate between Gupal Sariya and Madiyai. His disclosure statement has been brought on record as Exhibit P-14A. The accused-appellant led to discovery in presence of independent witnesses. The bag and cloth were taken out by the accused digging the pit and the bag contained 10 kgs and 200 gms of opium as is reflected from seizure memo, Exhibit P-6. 200 gms of opium was packed separately, sealed and sent 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, for it came into force only on 14.11.1985 and hence, the offence was punishable under the Opium Act, 1878, (for short ‘the Opium Act’); that the alleged recovery was on 16.1.1985 while the appellant was in custody in connection

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2015 Supreme(SC) 316

SUPREME COURT OF INDIA Dipak Misra, S.A. BOBDE, JJ.Mohan Lal – AppellantVersus State of Rajasthan – RespondentCRIMINAL APPEAL NO. 1393 OF 2010Decided On : 17-04-2015

Cases Referred (25)

SUPREME COURT OF INDIA
Dipak Misra, S.A. BOBDE, JJ.
Mohan Lal – Appellant
Versus
State of Rajasthan – Respondent
CRIMINAL APPEAL NO. 1393 OF 2010
Decided On : 17-04-2015