DHARAMPAL SINGHversusSTATE OF PUNJAB

_,




                            [2010] 10 S.C.R. 1160


     A                       DHARAMPAL SINGH
                                       v.
                             STATE OF PUNJAB
                     (Criminal Appeal No. 1479 of 2008)
                            SEPTEMBER 09, 2010
     B
            [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                           PRASAD, JJ.]

               Narcotic Drugs and Psychotropic Substances Act, 1985
     C   - ss. 18, 35 and 54 - Punishment for contravention in relation
         to opium poppy and opium - Factum of 'conscious possession'
         - Held: Under s. 18, possession has to be conscious
         possession - Initial burden of proof of possession, lies on
         prosecution and once it is discharged legal burden shifts on
     D   accused - Once possession is established accused, who
         claims that it was not a conscious possession, has to establish
         it because it is within his special knowledge - Possession is a
         mental stqte and s. 35 gives statutory recognition to culpable
         mental state - Once possession is established, court can
     E   presume that accused had culpable mental state and have
         committed the offence - On facts, Conviction and sentence of
         accused and co-accused uls. 18 by High Court, does not call
         for interference - Vehicle driven by accused and occupied by
         co-accused, from which opium was recovered was not a public
     F   transport vehicle - Circumstances lead to conclusion that
         accused were in conscious possession - Circumstances
         appearing against them were put to them in their statement ul
         s. 313 Cr.P. C. - Mere absence of independent witness at the
         time of search and seizure would not render the prosecution
     G   case unreliable - Code of Criminal Procedure, 1973 - s. 313.

            The Station House Officer-PW3 along with other
       police personnel intercepted the car driven by the
       appellant 'OS'. The appellant-'MS' was sitting by the side
       of 'OS' on the front seat. A gunny bag containing opium,
     H                             1160
     DHARAMPAL $1NGH v. STATE OF PUNJAB               1161

weighing 65 kilograms was found in the dicky of the car.      A
The sample of 100 grams was taken, kept in a sealed cover
and sent to the Chemical Examiner for examination. It was
found to be opium. The appellants were charge-sheeted
under Section 18 of the Narcotic Drugs and Psychotropic
Substances Act, 1983. The trial court ~cquitted the           B
appellants of the charge levelled against them since the
prosecution failed to prove the compliance of Section 50
of the Act. The High Court held that the provisions of
Section 50 of the Act was not applicable and set aside the
order of acquittal. The appellants were convicted for the    c
offence under Section 18 of the Act and sentenced to
undergo rigorous imprisonment for a period of 10 years
each. Therefore, the appellants filed the instant appeals.

    Dismissing the appeals, the Court
                                                              D
     HELD: 1.1 As regard the factum of 'conscious
possession', appellant-'DS' was found driving the car
whereas appellant-'MS' was travelling with him and from
the dicky of the car 65 kilograms of opium was recovered.
The vehicle driven by the appellant 'OS' and occupied by E
the appellant 'MS' is not a public transport vehicle. To bring
the offence within the mischief of Section 18 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 possession
has to be conscious possession. The initial burden of proof
of possession lies on prosecution and once it is F
discharged legal burden would shift on accused. The
standard of proof expected from the prosecution is to
prove possession beyond all reasonable doubt but what
is required to prove innocence by the accused would be
preponderance of probability. Once the plea of the accused G
is found probable, discharge of initial 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. The expression
possession is not capable of precise and completely
                                                               H
    1162    SUPREME COURT REPORTS               [2010] 10 S.C.R.


A   logical definition of universal application in 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
B   that it was not a conscious possession has to establish it
    because it is within his special knowledge. Section 54 of
    the Act raises presumption from possession of illicit
    articles. [Para 9] [1170-G-H; 1171-A-E]

         1.2. From a plain reading of Section 54 of the Act, it is
C   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
D   state. It includes knowledge of fact. The possession,
    therefore, has to be understood in the context thereof and
    when tested on this anvil, it is found that the appellants
    have not been able to account for satisfactorily the
    possession of opium. Once possession is established the
E   court can presume that the accused had culpable mental
    state and have committed the offence. [Para 9] [1172-C-E]

         1.3. As part of fair trial, Section 313 Cr.P.C. requires
    giving opportunity to the accused to give his explanation
F   regarding the circumstance appearing against him in the
    evidence adduced by the prosecution. The purpose
    behind it is to enable the accused to explain those
    circumstances. It is not necessary to put entire
    prosecution evidence and elicit answer but only those
    circumstances which are adverse to the accused and his
G
    explanation would help the court in evaluating the
    evidence properly. The circumstances are to be put and
    not the conclusion. It is not an idle formality and
    questioning must be fair and couched in a form intelligible

H
     DHARAMPAL SINGH v. STATE OF PUNJAB                 1163

to the accused. But it does not follow that omission will        A
necessarily vitiate the trial. The trial would be vitiated on
this score only when on fact it is found that it had
occasioned a failure of justice. [Para 12] [117 4-G-H; 1175-
A-B]

      1.4. On consideration of the facts of the instant case, B
it is found that the prosecution intends to prove that the
appellants were in possession of the opium by disclosing
that illicit article was recovered from the dicky of the
vehicle driven and occupied by them. Possession is a
mental state and what has been unfolded by the C
prosedution is that on search of dicky of the car opium was
recovered. The said circumstances lead to the conclusion
that the appellants were in conscious possession. Thus,
the circumstances appearing against the appellants in the
evidence have been reproduced and on fact found that the D
circumstances appearing against them were put to them
in their statement under Section 313 Cr.P.C. It cannot be
said that appellants were not told to explain the
circumstances appearing against them in the evidence. In
any of the view it has not occasioned failure of justice. E
[Paras 13 and 14] [1175-C-G]

     Avtar Singh and Ors. v. State of Punjab 2002 (7) SCC 419;
State of Punjab vs. Hari Singh and Ors. 2009(4) SCC 200,
distinguished.
                                                                 F
     Sorabkhan Gandhkhan Path an and Anr. vs. State of
Gujarat 2004 (13) SCC 608; Madan Lal and Anr. vs. State of
H.P. 2003 (7) SCC 465, referred to.

     2. The plea that the article recovered from the G
appellants is not opium and, therefore, their conviction is
illegal, in the light of evidence of DW.6, Malkhana Clerk of
the Court of Chief Judicial Magistrate, who in his evidence
stated that as per record 111 kilograms of opium was sent
to Ghazipur and from the report received it was observed H
    1164    SUPREME COURT REPORTS               [2010] 10 S.C.R.


A that the said consignment did not contain any alkaloid, was
  neither raised before the trial court or the High Court and
  though this plea is surprising. The counsel for the
  appellant conveniently left the evidence of OW 6 in the
  cross-examination, wherein he clearly deposed that he
8 cannot tell as to which case the opium related. Otherwise
  also 100 grams opium was sent to the Chemical Examiner
  who found that to be opium. OW 6 had in mind a case in
  which 111 kilograms of opium was sent. Therefore, the
  report referred to by DW.6 is not remotely connected with
C the instant case. [Para 15] (1175-G-H; 1176-A-D]

       3. The case of the prosecution cannot be rejected only
  on the ground that independent witnesses was not
  examined, in case on appraisal of the evidence on record
  the court finds the case of prosecution to be trustworthy.
D It has come in the evidence of the prosecution witnesses
  that an attempt was made to join person from public at the
  time of search but none was available. In the face of it mere
  absence of independent witness at the time of search and
  seizure will not render the case of the prosecution
E unreliable. (Para 16) (1176-E-G]
                         Case Law Reference:
         2004 (13) sec 608          Referred to.         Para 8,
    10
F
         2003 (7) sec 465            Referred to.        Para 9
         2002 (7) sec 419            Distinguished.      Para 10
         2009(4) sec 200             Distinguished.      Para 14
G       CRIMINAL AP PELLATE JURISDICTION: Criminal Appeal
    No. 1479 of 2008.

        From the Judgment & Order dated 22.01.2008 of the High
    Court of Punjab & Haryana at Chandigarh in Crl. Appeal No. 686-
H   DBA of 1997
     DHARAMPAL SINGH v. STATE OF PUNJAB                    1165


                             WITH                                   A

Crl. A.No. 1470 of 2008

    Nagendra Rai, Pt. Parmanand Katara, Rishi Malhotra,
Prem Malhotra for the Appellant.
                                                                    B
     Kuldip Singh for the Respondent.

    The Judgment of the Court was delivered by

     CHANDRAMAUU KR. PRASAD, J. 1. Appellants have
preferred these appeals separately, aggrieved by the judgment       C
and order dated 22nd January, 2008 passed by the Punjab and
Haryana High Court in Criminal Appeal No.686-DBA      f
                                                        of 1997,
whereby while reversing the judgment of acquittal dated 7th May,
1997 passed by the Sessions Judge, Faridkot in Sessions Case
No.73 of 1994 (Sessions Trial No.71 of 1994) convicted the          D
appellants for the offence under Section 18 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to
as the 'Act') and sentenced them to undergo rigorous
imprisonment for a period of 10 years each and to pay a fine of
Rs.1 lac each and in default to undergo further rigorous            E
imprisonment for a period of one year each.

     2. According to the prosecution, on 4th June, 1994 PW.3,
Jagmohan Singh, Station House Officer of Police Station, Mehna
along with Assistant Sub-Inspector of Police, Ranjit Singh and      F
other police personnel were on a routine picket duty near the
passage leading to the various colonies from Ajitwal. While they
were on duty a white Maruti Car, bearing No.PIO 6096 was seen
coming from the side of village Kokri Kalan through an unmetalled
road and when signalled by Jagmohan Singh, it stopped. On
enquiry the person driving the car disclosed his name as            G
appellant Dharampal Singh whereas the other person sitting by
his side on the front seat disclosed his name as appellant Major
Singh. According to the prosecution, the Station House Officer
apprised them that they intend to search their car and whether
                                                                    H
    1166     SUPREME COURT REPORTS                  (2010] 10 S.C.R.


A   they wish to be searched in the presence of a Magistrate or a
    Gazetted Officer. Both of them expres~ed their desire to be
    searched by a Gazetted Police Officer and accordingly on his
    wireless message Narinderpal Singh, Superintendent of Police,
    Moga along with security personnel reached there. According
B   to the prosecution an attempt was made to join independent
    persons to witness to the search but none were available. Hence,
    the car was searched by Jagmohan Singh in the presence of the
    Superintendent of Police and in the dicky of the car a gunny bag ·
    containing opium, wrapped in a glazed paper was found. Total
c   weight of the opium found was 65 kilograms and from that
    sample of 100 grams was taken and kept in a sealed cover. The
    sample so taken was sent to the Chemical Examiner, who found
    the same to be opium. After completion of the investigation
    charge-sheet was submitted under Section 18 of the Act and
    ultimately the appellants were put on trial for commission of the
0
    offence punishable under the aforesaid Section.

         3. The prosecution in support of its case altogether
    examined seven witnesses and the report of the Chemical
    Examiner was tendered as evidence. In the statement under
E   Section 313 of the Code of Criminal Procedure they pleaded
    false implication and examined six defence witnesses. The trial
    court on appreciation of evidence came to the conclusion that
    the prosecution had failed to prove, the compliance of Section
    50 of the Act and accordingly acquitted both the appellants of
F   the charge levelled against them. In this connection the trial court
    had observed as follows:

                "In this case, there is non compliance of the provisions
         of Section 50 of the Narcotic Drugs and Psychotropic
         Substances Act, which has been held to be a mandatory.
G
         In this case, admittedly no consent memo was prepared. In
         case State of Punjab vs. Labh Singh reported as 1997(1)
         Recent Criminal Reports 565 where there was no evidence
         that the accused was informed in writing of his right to be
         searched before a Gazetted Officer or a Magistrate, and
H
     DHARAMPAL SINGH v. STATE OF PUNJAB                    1167
        [CHANDRAMAULI KR. PRASAD, J.]

    the accused had been acquitted by the Court, the Hon'ble A
    Supreme Court refused to interfere in the order of acquittal.
    In case State of Punjab-appellant Vs. Kulwant Singh,
    reported as 1994(1) Recent Criminal Report 303 in para
    No.57 at page 320, it was held by our own Hon'ble High
    Court that the non compliance of the provisions of Section B
    50 of the Act would per se result in vitiating the trial and
    conviction and it would amount to taking away the most -
    valuable and substantive right of the suspected person in
    establishing his innocence and rendering the recovery of the
    Narcotic Drugs and Psychotropic Substances is illegal qua c
    the possession of the accused. This shows that the non
    compliance of the provisions of Section 50 is fatal to the
    case of the prosecution."

     4. Aggrieved by the order of acquittal, State preferred
appeal and the High Court by the impugned judgment has set          D
aside the order of acquittal and convicted the appellants as
above. The High Court has found that since the recovery was
effected from the dicky of the car and not from the person of the
appellants the provisions of Section 50 of the Act were not
applicable and as such the question of violation thereof did not    E
arise at all. The High Court further held that they were in
possession of 65 Kilograms of opium. The finding of the High
Court in this regard reads as follows:

    "It is proved from the cogent, convincing, reliable and         F
    unimpeachable evidence of Jagmohan Singh, Inspector,
    Station House Officer, P.S. Mehna, PW-3, the Investigating
    Officer of this case, and Narinder Pal Singh, Superintendent
    of Police, PW-2, that Dharampal Singh, accused, was
    driving Car No.PIO 6096 and Major Singh, accused, was           G
    sitting by his side, on the front seat, at the relevant time,
    when the recovery of 65 K.gms of opium, wrapped in a
    glazed paper, from a gunny bag, lying in the dicky of the
    same, was effected. The Car, in question, belonged to the
    brother of Dharampal Singh, accused, as per the
                                                                    H
    1168     SUPREME COURT REPORTS                [2010) 10 S.C.R.


A       registration certificate, referred to above. Since no enmity
        against the prosecution witnesses, was either alleged or
        proved, it could not be imagined that such a big haul of
        opium, could be planted, against the accused, by them.
        Since, the recovery of opium, was effected from the dicky
B       of the Car, aforesaid, being driven by Dharampal Singh,
        accused, by the side of whom, on the front seat, Major Singh,
        accused was sitting, it can be safely held that both of them
        were found in possession of the same (opium)."

C        5. The High Court further taking into account the provisions
    of Sections 35 and 54 of the Act came to the conclusion that they
    were in conscious possession of opium and accordingly
    convicted and sentenced the appellants as above.

      6. Mr. Nagendra Rai, learned Senior Counsel appears on
D behalf of the appellant in Criminal Appeal No.1479 of 2008
  whereas the appellant in Criminal Appeal No.1470 of 2008 is
  represented by Pandit Parmanand Katara, learned Senior
  Counsel. They concede that in facts of the present case, Section
  50 of the Act is not attracted, the ground on which the trial court
E had acquitted the appellants but they assail the conviction of the
  appellants on the ground mentioned hereinafter.

       7. Mr. Rai, submits that for the conviction under Section 18
  of the Act the possession has to be a conscious possession and
F merely the fact that the opium was found in the dicky of the car,
  which the appellant was driving itself, shall not establish
  conscious possession. In support of his submission he has
  placed reliance on a judgment of this Court in the case of Avtar
  Singh and others vs. State of Punjab, 2002 (7) sec 419, and
  our attention has been drawn to the following passage from
G paragraph 6 of the judgment which reads as follows:

              "Possession is the core ingredient to be established
        before the accused in the instant case are subjected to the
        punishment under Section 15. If the accused are found to
H       be in possession of poppy straw which is a narcotic drug
DHARAMPAL SINGH v. STATE OF PUNJAB                       1169
   [CHANDRAMAULI KR. PRASAD, J.]

within the meaning of clause (xiv) of Section 2, it is for them   A
to account for such possession satisfactorily; if not, the
presumption under Section 54 comes into play. We need
not go into the aspect whether the possession must be
conscious possession. Perhaps taking a cue from the
decision of this Court in lnder Sain v. State of Punjab arising   B
under the Opium Act, the learned trial Judge charged the
accused of having conscious possession of poppy husk.
Assuming that poppy husk comes within the expression
poppy straw, the question, however, remains whether the
prosecution satisfactorily proved the fact that the accused       C
were in possession of poppy husk. Accepting the evidence
of PW 4, the Head Constable, it is seen that Appellant 3
(Accused 4) was driving the vehicle loaded with bags of
poppy husk. Appellants 1 and 2 (Accused 1 and 2) were
sitting on the bags placed in the truck. As soon as the vehicle
                                                                  0
was stopped by ASI (PW 2), one person sitting in the cabin
by the side of the driver and another person sitting in the
back of the truck fled. No investigation has been directed
to ascertain the role played by each of the accused and the
nexus between the accused and the offending goods. The
word "possession" no doubt has different shades of                E
meaning and it is quite elastic in its connotation. Possession
and ownership need not r'ways go together but the
minimum requisite element which has to be satisfied is
custody or control over 'the goods. Can it be said, on the
basis of the evidence available on record, that the three         F
appellants - one of whom was driving the vehicle and the
other two sitting on the bags, were having such custody or
control? It is difficult to reach such conclusion beyond
reasonable doubt. It transpires from the evidence that the
appellants were not the only occupants of the vehicle. One        G
of the persons who was sitting in the cabin and another
person sitting at the back of the truck made themselves
scarce after seeing the police and the prosecution could not
establish their identity. It is quite probable that one of them
could be the custodian ofthe goods whether or not he was          H
i
'
J

        1170    SUPREME COURT REPORTS                 [2010] 10 S.C.R.


    A       the proprietor. The persons who were merely sitting on the
            bags, in the absence of proof of anything more, cannot be
            presumed to be in possession of the goods."

            8. Another decision on which reliance is placed is the
        decision of this Court in the case of Sorabkhan Gandhkhan
    8
        Pathan and another vs. State of Gujarat, 2004 (13) SCC 608,
        wherein it has been held as follows:

                   "7. However, we notice that so far as Accused 1,
            Appellant 1 herein is concerned, the contraband in question
    c       has been seized from his possession and, in our opinion,
            the prosecution has established the case against the said
            accused and the courts below have rightly convicted the said
            appellant. Whereas in regard to Appellant 2, it is the
            prosecution case itself that he was travelling in the
    D       autorickshaw, along with three other persons. The
            prosecution has not produced any material whatsoever to
            establish that either this appellant had the knowledge that
            Appellant 1 was carrying the contraband or was, in any
            manner, conniving with the said accused in carrying the
    E       contraband. In the absence of any such material, to convict
            the second appellant only on the ground that he was found
            in the autorickshaw, in our opinion, is not justified. As a
            matter of fact, the courts below have rightly acquitted the
            other two accused on similar ground and, in our opinion, the
            said benefit ought to have gone to Accused 2 also. For the
    F
            reasons stated, we find the prosecution has failed to
            establish its case against Appellant 2. Therefore, this
            appeal, so far as he is concerned, succeeds and the same
            is allowed. The said Appellant 2, if in custody, shall be
            released forthwith, if not wanted in any other case. However,
    G       the appeal of the first appellant is dismissed."

           9. We do not find any substance in this submission of the
      learned counsel. Appellant, Dharmpal Singh was found driving
      the car whereas appellant, Major Singh was travelling with him
    H and from the dicky of the car 65 Kilograms of opium was
     DHARAMPAL SINGH v. STATE OF PUNJAB                    1171
        [CHANDRAMAULI KR. PRASAD, J.]

recovered. The vehicle driven by the appellant, Dharampal Singh A
and occupied by the appellant, Major Singh is not a public
transport vehicle. It is trite that to bring the offence within the
mischief of Section 18 of the Act possession has to be conscious
possession. The initial burden of proof of possession lies on
prosecution and once it is discharged legal burden would shift B
on accused. Standard of proof expected from the prosecution
is to prove possession beyond all reasonable doubt but what is
required to prove innocence by the accused would be
preponderance of probability. Once the accused plea is found
probable, discharge of initial burden by the prosecution will not c
nail him with offence. Offences under the Act being more serious
in nature higher degree of proof is required to convict an
accused. It needs no emphasis that the expression possession
is not capable of precise and completely logical definition of
universal application in context of all the statutes. Possession is
                                                                    0
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. Section
54 of the Act raises presumption from possession of illicit E
articles. It reads as follows :

    "54. Presumption from possession of illicit articles. - In
    trials under this Act, it may be presumed, unless and until
    the contrary is proved, that the accused has committed an       F
    offence under this Act in respect of -

      (a)   any narcotic drug or psychotropic substance or
            controlled substance;

      (b)   any opium poppy, cannabis plant or coca plant           G
            growing on any land which he has cultivated;

      (c)   any apparatus specially designed or any group of
            utensils specially adopted for the manufacture of any
            narcotic drug or psychotropic substance or controlled   H
     I
,i

             1172         SUPREME COURT REPORTS              [2010] 10 S.C.R.


         A                 substance; or

                    (d)    any materials which have undergone any process
                           towards the manufacture of a narcotic drug or
                           psychotropic substance or controlled substance, or
                           any residue left of the materials from which any
         8
                           narcotic drug or psychotropic substance or controlled
                           substance has been manufactured,

                 for the possession of which he fails to account satisfactorily."

         c        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
         D 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
           have not been able to account for satisfactorily the possession
           of opium. Once possession is established the Court can
           presume that the accused had culpable mental state and have
         E committed the offence. In somewhat similar facts this Court had
           the occasion to consider this question in the case of Madan Lal
           and another vs. State of H.P., 2003 (7) sec 465, wherein it has
           been held as follows:

         F       "26. 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 position because of the presumption
         G       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.
                 27. In the factual scenario of the present case, not only
                 possession but conscious possession has been
         H
          DHARAMPAL SINGH v. STATE OF PUNJAB                        1173
             [CHANDRAMAULI KR. PRASAD, J.)

          established. It has not been shown by the accused- A
          appellants that the possession was not conscious in the
          logical background of Sections 35 and 54 of the Act."
..         10. Now, referring to the decision of this Court in the case
     of Avtar Singh (supra), the same is clearly distinguishable. In the
     said case, according to the prosecution itself, the vehicle loaded     8
     with 'bags of poppy husk was a truck and when it was stopped
     one person sitting ·in the cabin and another person-sitting in the
     back of the truck fled away. The accused in the said case were
     not the only occupants and in the said background this Court held
     that they cannot be presumed to be in the possession of the            C
     goods and it is quite probable that one of those who fled away
     could have been the custodian thereof. However, in the present
     case the vehicle in question is not a transport vehicle and,
     therefore, the test applied in the case of public transport vehicles
     in which several persons travel cannot be applied in the facts of      D
     the present case. Similarly, in the case of Sorabkhan Gandhkhan
     Pathan(supra) the contraband was recovered from an
     autorickshaw and in the absence of specific case that the
     accused had knowledge of carrying the contraband, only on the
     ground that he was travelling,in an autorickshaw, possession           E
     cannot be inferred. For the reasons aforesaid this case is of no
     assistance to the appellants.
           11. Mr. Rai, then- submits that circumstance that the
     appellants were in conscious possession of the opium was not
     put to them while being examined underSection 313 of the Code F
     of Criminal Procedure and hence the conviction of the appellants
     is vitiated on this ground alone. He points out that this is very
     valuable right and its breach ·is sufficient to hold appellants'
     conviction to be bad in law. In support of the contention reference
     has been made to paragraph 9 and 18 of the judgment of this G
     Court in the case of State of Punjab vs. Hari Singh and others,
     2009(4) sec 200, same reads as follows:
          "9. Stand of the accused persons before the High Court was
          that there was no evidence to show any conscious
          possession which is a sine qua non for recording conviction       H
    1174    SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A       under Section 15 of the Act. Additionally, it was submitted
        that no question regarding possession was put to any of
        them in their examination under Section 313 of the Code of
        Criminal Procedure•. 1973 (in short "the Code").
        18. When the accused was examined under Section 313
B       CrPC, the essence of accusation was not brought to his
        notice, more particularly, that possession aspect, as was
        observed by this Court in Avtar Singh v. State of Punjab. The
        effect of such omission vitally affects the prosecution case."
C         12. We are not at all impressed by this submission of Mc
    Rai. One of the circumstances appearing in the evidence put
    to the appellants while being examined under Section 313 of the
    Code of Criminal Procedure, and its answer read as follows:
        "Q. It is in evidence against you that in the presence of S.P.
D       Narinderpal Singh, Jagmohan Singh Inspector searched the
        dicky of the car and recovered gunny bag containing opium
        from the dicky. On weighing the opium came to be 65
        Kilograms 100 grams of opium was taken out as sample
        and the remaining opium was put in five tin boxes which were
E       sealed with the seal of NPS of S.P. Narinderpal Singh and
        JS of Inspector Jagmohan singh. Box boxes containing
        opium Ex.P2 to Ex.P6 along its sample parcel were taken
        into possession vide memo Ex.PB impression of the seal
        was also prepared which are Ex.P7 and Ex.PB and both the
        seals after use were handed over to ASI Ranjit Singh. What
F
        have you got to say about it?
        A. It is incorrect."
         As part of fair trial, Section 313 of the Code of Criminal
  Procedure requires giving opportunity to the accused to give his
G explanation regarding the circumstance appearing against him
  in the evidence adduced by the prosecution. The purpose behind
  it is to enable the accused to explain those circumstances. It is
  not necessary to put entire prosecution evidence and elicit
  answer but only those circumstances which are adverse to the
H accused and his explanation would help the court in evaluating

                                                                         t
     DHARAMPAL SINGH v. STATE OF PUNJAB                        1175
        [CHANDRAMAULI KR. PRASAD, J.]
the evidence properly. The circumstances are to be put and not          A
the conclusion. It is not an idle formality and questioning must
be fair and couched in a form intelligible to the accused. But it
does not follow that omission will necessarily vitiate the trial. The
trial would be vitiated on this score only when on fact it is found
that it had occasioned a failure of justice.                            B
      13. Bearing in mind the aforesaid principle when we
consider the facts of the present case we find that the
prosecution intends to prove that the appellants were in
possession of the opium by disclosing that illicit article was
recovered from the dicky of the vehicle dri'v;en and occupied by        C
them. Possession is a mental state and what has been unfolded
by the prosecution is that on search of dicky of the car opium
was recovered. Circumstances aforesaid lead to the conclusion
that the appellants were in conscious possession. Therefore, it
cannot be said that appellants were not told to explain the             D
circumstances appearing against them in the evidence.
      14. Now, referring to the decision of this Court in Hari Singh
(supra) relied on by the appellants, the same is clearly
distinguishable. In the said case no question regarding
possession was put to the accused in the examination under E
Section 313 of the Code of Criminal Procedure, which would
be evident from paragraph 9 of the; idgment quoted above and
in the background thereof the Court held such omission to be
vital affecting the case of the prosecution. In the case in hand
we have in extenso reproduced the circumstances appearing F
against the appellants in the evidence and on fact found that the
circumstances appearing against them were put to them in their
statement under Section 313 of the Code of Criminal
 Procedure. In any of the view it has not occasioned failure of
justice.                                                             G
    15. Pandit Katara while adopting the submission of Mr. Rai
submits that the article recovered from the appellants is not
opium and, therefore, their conviction is illegal. Aforesaid
submission is founded in the light of evidence_of DW.6, Swaran
Kumar, Malkhana Clerk of the Court of Chief Judicial Magistrate,        H
    I

I
         1176     SUPREME·COURT REPORTS                 [2010) 10 S.C.R.


    A    who in hls evidence has stated that as per record 111 Kilograms
         of opium was'sent to Ghaz!pur and from the report received it
         has been observed that the said consignmentdid not contain
         any alkaloid. No·such plea was .• raised'either before the Trial
         Court or the·High Court and though 'this plea surprised us, we
    s·   have examined the same; We have no doubt in mind that in case
         report pertains to the case in hand, the appellants cannot be held
         guilty of possessing the opium and have to be acquitted. But, it
         is·not so. Pandit Katara has conveniently left the evidence of this
         witness in the cross-examination, wherein he has clearly
    c    deposedJhat he cannot tell as to which case the opium related.
         Otherwise also in the present case 100 grams opium was sent
         tb the Chemical Examiner who found that to be opium. This
         witness had in mind a case in which 111 Kilograms of opium
         was. sent. Therefore, the report referred to by DW.6 Sarwan
         Kumar is not remotely connected with the present case.
    D
               16. Pandir Katara had further submitted that no
         independent witness of search and seizure had been examined
         and on this ground alone the search and seizure is rendered
         illegal. He submits that rigours of Section 100 of the Code of
    E    Criminal Procedure are applicable and there being no
         independent witness, the case of the prosecution deserves to
         be rejected. We do not find any substance in the submission of
         Mr. Katara. The case of the prosecution cannot be rejected only
         on the ground that independent witnesses have not been
    F    examined, in case on appraisal of the evidence on record the
         court finds the case of prosecution to be trustworthy. It has come
         in the evidence of the prosecution witnesses that an attempt was
         made to join person from public at the time of search but none
         was available. In the face of it mere absence of independent
    G    witness at the time of search and seizure will not render the case
         of the prosecution unreliable.
             17. We do not find any merit in these appeals and they are
         dismissed accordingly.
                                                    Appeals dismissed.
    H