Supreme Court of India
MOHAN LALversusSTATE OF RAJASTHAN
- Citation
- 2015 INSC 334
- Decided
- 17 April 2015
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
The NDPS Act applies to the continuing possession after its commencement, and the prosecution’s compliance with Sections 43, 57 and evidentiary rules suffices to uphold the conviction.
Summary
Mohan Lal was convicted for possession of 10 kg of opium under Section 18 of the NDPS Act and for theft under Sections 457 and 380 of the IPC. He argued that the offence occurred before the NDPS Act came into force, that applying the Act was retrospective and violative of Art.20(1) of the Constitution, that the seizure violated Sections 42 and 57 of the NDPS Act, and that his disclosure statement made while in custody for a different FIR was inadmissible. The Supreme Court held that the accused remained in possession when the NDPS Act commenced, making the Act applicable without retrospective effect; the seizure was made in a public place, so Section 43, not Section 42(2), applied; substantial compliance with Section 57 was sufficient; the disclosure statement was admissible under Section 27 of the Evidence Act; and the delay in sending the seized opium for chemical analysis did not prejudice the prosecution. Consequently, the conviction and sentence were upheld.
Issues considered
- The NDPS Act's applicability to a possession offence that began before its commencement and whether its application violates Art.20(1) of the Constitution.
- The proper interpretation of 'possession' under Section 18 of the NDPS Act, including the concepts of conscious and continuing possession.
- Whether Section 42(2) compliance is required when the seizure is made in a public place under Section 43.
- The effect of non‑compliance or delayed compliance with Section 57 of the NDPS Act on the validity of the conviction.
- The admissibility of a disclosure statement made while the accused was in police custody for a different FIR under Section 27 of the Evidence Act.
- The relevance of the delay in forwarding the seized opium for forensic examination.
Legislation cited
- Code of Criminal Procedure, 1973s. 472
- Constitution of Indias. Art.20(1)
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 380, s. 457
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 35, s. 42, s. 43, s. 57
Subjects
NDPS Actpossessionretrospective lawArticle 20(1) Constitutioncontinuing offenceSection 42 NDPSSection 43 NDPSSection 57 NDPSEvidence Act Section 27opium theftcriminal appeal
Judgment
[2015] 5 S.C.R. 435
MOHAN LAL A
v.
STATE OF RAJASTHAN
(Criminal Appeal No.1393of2010) B
APRIL 17, 2015
[DIPAK MISRA ANDS.A. BOBDE, JJ.]
Narcotic Drugs and Psychotropic Substances Act, C
1985- ss. 18, 35, 42, 43 and 57 - Prosecution uls. 18 rlw. ss.
457 and 380 of Penal Code - For theft of opium and
possession thereof - Recovery of the contraband at the
instance of the accused from a public place where he had
0
concealed the same - Conviction by courts below - On
appeal, pleas of accused that the Act was not applicable since
the offence was committed before enforcement thereof; that
conviction under the Act would tantamount to retrospective
operation which is against Art. 20(1) of the Constitution; that E
conviction is vitiated for non-compliance of ss. 42(2) and 57;
that disclosure statement of the accused not admissible since
it was made while the accused was in police custody in
connection with another case; and that there was delay in
sending the seized articles for chemical examination - Held: F
The Act is applicable in the present case because, the
accused remained in possession of the contraband
substance even when the Act came into force - Thus was
rightly convicted uls. 18 - Therefore, it cannot be said that G
acts of possession was made punishable with retrospective
affect, hence violation of Art. 20(1) would not arise - In the
present case, since the contraband substance was recovered
from a public place, s. 43 would be applicable and not s.
42(2)- Evidence of the case show that there was substantial H
435
436 SUPREME COURT REPORTS (2015] 5 S.C.R.
A compliance of s. 57 - The recovery of the contraband articles
has been proved to the hilt and the fact that recovery
statement was made while in police custody in respect of
another case, would not affect the admissibility of the
statement - On the facts of the case, delay in sending the
B seized articles for chemical examination would not affect the
prosecution case - Conviction upheld - Penal Code, 1860
-ss. 457 and 380- Constitution oflndia, 1950-Art. 20(1).
Evidence Act, 1872 - s. 27 - Scope of- Held: s. 27
C does not restrict that the accused must have been arrested
in connection with the same offence.
Constitution of India, 1950-Art. 20(1) -Applicability
of- Discussed.
D Words and Phrases - 'Possession' - Meaning of, in
the context of Narcotic Drugs and Psychotropic Substances
Act, 1881.
Dismissing the appeal, the Court
E HELD: 1.1 When one conceives of possession, it
appears in the strict sense that the concept of
possession is basically connected to "actus of physical
control and custody". Attributing this meaning in the
F strict sense would be understanding the factum of
possession in a narrow sense. With the passage of time
there has been a gradual widening of the concept and
the quintessential meaning of the word possession. The
classical theory of English law on the term "possession"
G is fundamentally dominated by Savigny-ian "corpus"
and "animus" doctrine. Distinction has also been made
in "possession in fact" and "possession in law" and
sometimes between "corporeal possession" and
"possession of right" which is called "incorporeal
H possession". Thus, there is a degree of flexibility in the
MOHAN LAL v. STATE OF RAJASTHAN 437
use of the said term and that is why the word possession A
can be usefully defined and understood with reference
to the contextual purpose for the said expression. The
word possession may have one meaning in one
connection and another meaning in another. The term
"possession" consists of two elements. First, it refers B
to the corpus or the physical control and the second, it
refers to the animus or intent which has reference to
exercise of the said control. [Paras 8 and 9] [449-G-H;
450-A-D]
c
1.2 The courts have refrained from adopting a
doctrinaire approach towards defining possession. A
functional and flexible approach in defining and
understanding the possession as a concept is
0
acceptable and thereby emphasis has been laid on
different possessory rights according to the commands
and justice of the social policy. Thus, the word
"possession" in the context of any enactment would
depend upon the object and purpose of the enactment E
and an appropriate meaning has to be assigned to the
word to effectuate the said object. [Para 11] [453-H; 454-
A-B]
1.3 In the context of Section 18 of the NDPS Act, it F
would have a reference to the concept of conscious
possession. The legislature while enacting the said law
was absolutely aware of the said element and that the
word "possession" refers to a mental state as is
noticeable from the language employed in Section 35 of G
the NDPS Act. Possession includes knowledge of a fact.
That apart, Section 35 raises a presumption as to
knowledge and culpable mental state from the
possession of illicit articles. T)'le expression "possess
or possessed" is often used in connection with statutory H
438 SUPREME COURT REPORTS [2015] 5 S.C.R.
A offences of being in possession of prohibited drugs and
contraband substances. Conscious or mental state of
possession is necessary and that is the reason for
enacting Section 35 of the NDPS Act. [Para 12] [454-C,
H; 455-A·B]
B
1.4 The term "possession" for the purpose of
Section 18 of the NDPS Act could mean physical
possession with animus, custody or dominion over the
prohibited substance with animus or even exercise of
C dominion and control as a result of concealment. The
animus and the mental intent is the primary and
significant element to show and establish possession.
Further, personal knowledge as to the existence of the
"chattel" i.e. the illegal substance at a particular location
0
or site, at a relevant time and the intention based upon
the knowledge, would constitute the unique relationship
and manifest possession. In such a situation, presence
and existence of possession could be justified, for the
E intention is to exercise right over the substance or the
chattel and to act as the owner to the exclusion of others.
In the present case, the appellant, had the requisite
degree of control, even if the said narcotic substance
was not within his physical control at that moment. [Para
F 16] [459-G-H; 460-A-B]
1.5 The accused-appellant was in possession of
the prohibited or contraband substance which was an
offence when the NDPS Act came into force. Hence, he
G remained in possession of the prohibited substance and
as such offence under Section 18 of the NDPS Act is
made out. The possessory right would continue unless
there is something to show that he had been divested of
it. On the contrary, he led to discovery of the substance
H which was within his special knowledge. In such a
MOHAN LAL v. STATE OF RAJASTHAN 439
situation, the accused-appellant cannot take the plea that A
he had committed an offence u/s. 9 of the Opium Act and
not under Section 18 of the NDPS Act. [Para 16] [460-E-
H; 461-A] -..
Noor Aga v. State of Punjab and Anr. (2008) 16 SCC B
417: 2008 (10) SCR 379; Bhola Singh v. State of Punjab
(2011) 11 SCC 653: 2011 (2) SCR 642; Dharampa/
Singh v. State of Punjab (2010) 9 SCC 608: 2010 (10)
SCR 1160; Avtar Singh v. State of Punjab (2002) 7 SCC
419: 2002 (2) Suppl. SCR 482- relied on. c
Black's Law Dictionary; Stroud's dictionary -
referred to.
2.1 Article 20(1) gets attracted only when any D
penal law penalises with retrospective effect i.e. when
an act was not an offence when it was committed and
additionally the persons cannot be subjected to penalty
greater than that which might have been inflicted under
the law in force at the time of commission of the offence. E
The Article prohibits application of ex post facto law.
[Para 17] [461-C-D]
2.2 In the instant case, Article 20(1) would have no
application. The actus of possession is not punishable F
with retrospective affect. No offence is created under
Section 18 of the NDPS Act with retrospective effect.
What is punishable is possession of the prohibited article
on or after a particular date when the statute was enacted,
creating the offence or enhancing the punishment. G
Therefore, if a person is in possession of the banned
substance on the date when the NDPS Act was enforced,
he would commit the offence, for on the said date, he
would have both the 'corpus' and 'animus' necessary in H
440 SUPREME COURT REPORTS [2015) 5 S.C.R.
A law. [Para 17] [462-B-C]
Rao Shiv Bahadur Singh and Anr. v. State of Vindhya
Pradesh AIR 1953 SC 394: 1953 SCR 1188 - relied
on.
B
Harjit Singh v. State of Punjab (2011) 4 SCC 441: 2011
(5) SCR 691 - distinguished.
3. The offence in question is a continuing offence,
for the offence is basically a possession of the
C contraband articles. On the date the NDPS Act came into
force, the accused-appellant was still in possession of
the contraband article. Thus, it was possession in
continuum and hence, the principle with regard to
D continuing offence gets attracted. [Paras 19 and 22] (463-
E; 465-G]
State of Bihar v. Deokaran Nenshi & Anr. (1972) 2 SCC
890: 1973 (3) SCR 1004; Udai Shankar Awasthi v.
E state of Uttar Pradesh and Anr. (2013) 2 SCC 435: 2013
(3) SCR 935; Ba/akrishna Sava/ram Pujari Waghmare
v. Shree Dhyaneshwar Maharaj Sansthan AIR 1959 SC
798: 1959 Suppl. SCR 476; Gokak Patel Vo/kart Ltd.
v. Dundayya Gurushiddaiah Hiremath (1991) 2 SCC
F 141: 1991 (1) SCR 396 -relied on.
Maya Rani Punj v. Commissioner of Income Tax, Delhi
(1986) 1 SCC 445: 1985 (3) Suppl. SCR 827; State
v. A.H. Bhiwandhiwalia AIR 1955 Born 161 - referred
G to.
4. Section 43 of the NDPS Act contemplates
seizure made in the public place. There is a distinction
between Section 42 and Section 43 of the NDPS Act. If a
H search is made in a public place, the officer taking the
MOHAN LAL v. STATE OF RAJASTHAN 441
search is not required to comply with sub Sections (1) A
and (2) of Section 42 of the NDPS Act. The seizure has
taken place beneath a bridge of public road accessible
to public. The officer, is an empowered officer u/s. 42 of
the Act. As the place is a public place and Section 43
comes into play, the question of non-compliance of B
Section 42(2) does not arise. [Para 25] [468-F-H]
Directorate of Revenue and Anr. v. Mohammed Nisar
Holia (2008) 2 SCC 370: 2007 (12) SCR 906; State,
NCT of Delhi v. Malvinder Singh (2007) 11 SCC 314: c
2007 (7) SCR 1109 - relied on.
Kamai/ Singh v. State of Haryana (2009) 8 SCC 539:
2009 (11) SCR 470; Abdul Rashid Ibrahim Mansuri
v. State of Gujarat (2000) 2 SCC 513: 2000 (1) SCR D
542; Sajan Abraham v. State of Kera/a (2001) 6 SCC
692: 2001 (1) Suppl. SCR 335; Rajinder Singh v.
State ofHaryana (2011) 8SCC130: 2011 (9) SCR 879
- referred to.
E
5. Section 57 is not mandatory in nature and when
substantial compliance is made, it would not vitiate the
prosecution case. In the instant case, on perusal of the
evidence, it is clear that there has been substantial
compliance of Section 57 of the NDPS Act and, therefore, F
the question of prejudice does not arise. [Paras 27 and
29] [469-D; 470-E]
State of Punjab v. Balbir Singh (1994) 3 SCC 299: 1994
(2) SCR 208; Kishan Chand v. State of Haryana G
(2013) 2 SCC 502: 2012 (11) SCR 1010-relied on.
6.1 There is no shadow of doubt that the accused-
appellant was in police custody. Section 27 of the
H
442 SUPREME COURT REPORTS [2015) 5 S.C.R.
A Evidence Act, 1872 provides that when any fact is
deposed to, as discovery in consequence ot the
information received from a person accused of any
offenc:e in custody of a police officer, so much of such
information whether it amounts to confession or not as
B relates distinctly to the fact thereby discovered may be
proved. It is well settled in law that the components or
portion which was the immediate cause of the discovery
could be acceptable legal evidence. [Para 30) [471-H; 472-
C A-BJ
6.2 The words employed in Section 27 does not
restrict that the accused must be arrested in connection
with the same offence. In fact, the emphasis is on receipt
of information from a person accused of any offence.
0
Therefore, when the accused-appellant was already in
custody in connection with FIR No. 95 of 1985 and he
led to the discovery of the contraband articles, the plea
that it was not done in connection with FIR No. 96 of
E 1985 (present case), is absolutely unsustainable. The
recovery has been proven to the hilt. The trial Judge as
well els the High Court has, by cogent and coherent
reasons, accepted the recovery. There is nothing on
record to differ with the factum of recovery of the
F contraband articles. [Para 30) [472-C-F]
A.K. Subraman and Others v. Union of India and Others
AIR 1976 SC 483: 1976 (1) SCR 715 - referred to.
G 7. The seal being intact on the FSL report, the
description of the case number and the impression of
seal having been fixed on memo of recovery, there is no
reason or justification to discard the prosecution case
on the ground of delay in sending the seized articles for
H chemical examination. [Para 31) [472-G-H; 473-B]
MOHAN LAL v. STATE OF RAJASTHAN 443
Hardip Singh v. State of Punjab (2008) 8 SCC 557: A
2008 (12) SCR 311- relied on.
Rattan Lal v. State of Punjab AIR 1965 SC 444: 1964
SCR 676: T. Barai v. Henry Ah Hoe(1983)1SCC177:
1983 (1) SCR 905; Basheerv. State of Kera/a (2004) B
3 SCC 609: (2004) 3 SCC 609; Pratap Singh v. State
of Jharkhand (2005) 3 sec 551 - cited.
Case Law Reference
2011 (5) SCR 691 distinguished. Para 6 and 31 c
1964 SCR 676 cited Para 6
1983 (1) SCR 905 cited Para 6
(2004) 3 sec 609 cited Para 6
2005 (1) SCR 1019 cited Para 6
D
2008 (10) SCR 379 relied on. Para 13
2011 (2) SCR 642 relied on. Para 14
2010 (10) SCR 1160 relied on. Para 15
2002 (2) Suppl. SCR482 relied on. Para 15
(2004) 13 sec 608 relied on. Para 15 E
1953 SCR 1188 relied on. Para 17
1973 (3) SCR 1004 relied on. Para 19
2013 (3) SCR 935 relied on. Para 20
1959 Suppl. SCR 476 relied on Para 20 F
1991 (1_) SCR 396 relied on. Para 20
1985 (3) Suppl.SCR 827 relied on. Para 21
AIR 1955 Born 161 referred to. Para 21
2009 (11) SCR 470 referred to. Para 23
referred to. Para 23
G
2000 (1) SCR 542
2001 (1) Suppi.SCR 335 referred to. Para 23
2011 (9) SCR 879 referred to. Para 24
2007 (12) SCR 906 relied on. Para 25
2007 (7) SCR 1109 relied on. Para 25 H
444 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 1994 (2) SCR 208 relied on. Para 27
2012 (11) SCR 1010 relied on. Para 28
1976 (1) SCR 715 referred to. Para 30
2008 (12) SCR 311 relied on. Para 31
B CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1393 of2010.
From the Judgment and Order dated 16.07.2009 of the
High Court of Judicature for Rajasthan at Jodhpur in S.B.
C Criminal Appeal No. 287of1989.
Aishwarya Bhati, Sanjoli Mittal, Anshuman, Amit Verma,
Pawan Kumar for the Appellant.
Shiv Mangal Sharma, aag, Sitesh Narayan Singh, A.
0
Mahapatra, AkshatAnand, Milind Kumar for the Respondent.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Calling in question the legal
E 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
F 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
G 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.
H
MOHAN LAL v. STATE OF RAJASTHAN 445
[DIPAK MISRA, J.]
2. The relevant facts giving rise to the prosecution are A
thaton·13.11.1985, at9.30a.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 B
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 C
an offence under Section 457·1PC. 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 D
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 E
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 F
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 G
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 H
446 SUPREME COURT REPORTS [2015) 5 S.C.R.
A 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
B Singh, PW-6, the concerned, Magistrate, Narain Singh, PW-
4, the Criminal Clerk, in-charge of Malkhana,ASl,Achlu Ram,
PW-13, ASI Hanuman Singh, PW-3, Koja Ram, PW-10, Guiab
Singh, PW-14, and Su-lnspector-cum-SHO, Bheem Singh,
PW-12 are witnesses to the recovery. The FSL report was
C 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
D 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 NDPSAct was not in force, for it came into
force only on 14.11.1985 and hence, the offence was
E 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 with FIR No. 95of1986
and not in custody in connection with this case i.e. FIR No. 96
F of 1985; that recovery of disclosure at the instance of the
accused-appellant had not been proven and that he was never
in possession of the said articles, and that there has been
total non-compliance of Section 42 and 57 of the NDPS Act
and, therefore, the conviction was vitiated in law. The High
G Court repelled all the submissions and affirmed the conviction
and sentence as recorded by the learned trial Judge.
5. We have heard Ms. Aishwarya Bhati, learned counsel
for the appellant and Mr. Shiv Mangal Sharma, learned
H Additional Advocate General for the State of Rajasthan.
MOHAN LAL v. STATE OF RAJASTHAN 447
[DIPAK MISRA, J.]
6. First, we shall deal with the issue of possession. The A
principal submission of Ms. Bhati, learned counsel for the
appellant is that the appellant cannot be convicted and
punished under the NDPS Act when admittedly the theft of
contraband substance was prior to coming into force of the
NDPSAct, for the FIR was lodged prior to coming into force of B
the NDPSAct. Learned counsel would submit that offence of
possession of contraband substance also commenced prior
to coming into force of NDPS Act as the FIR would clearly
reveal that the theft was committed on the intervening night of C
12th/131h November, 1985, whereas the NDPS Act came into
force on 14.11.1985. Learned counsel would submit that the
recovery of opium was done on 16.1.1986 pursuant to the
disclosure statement made by the accused-appellant who was
already under arrest in a different matter and under such o
circumstances, the appellant could not have been convicted
under Section 18 of the NDPS Act, but should have been
convicted under Section 9 of the Opium Act. Elaborating the
said submission, the learned counsel has contended that the
offence of possession of contraband substance was E
punishable under both the laws but there is a huge difference
in the sentence prescribed. Under Section 9 of the Opium
Act, the sentence was extend able to one year whereas under
Section 18 of the NDPS Act, the prescribed punishment is
minimum 1Oyears apart from imposition of huge fine. Learned F
counsel would submit that it is the settled principle of criminal
jurisprudence that the accused cannot be subject to an offence
under a new Act which was not in force on the date of theft and
the possession of contraband articles, as a matter of fact, had G
·taken place prior to coming into force of the NDPSAct. She
has commended us to the decision in Harjit Singh v. State
of Punjab 1• Learned counsel would also contend that there
can be rationalization of structure of punishment, which is an
1. (2011)4SCC441 H
448 SUPREME COURT REPORTS [2015] 5 S.C.R.
A ameliorative provision, for it reduces the punishment and the
same can be made applicable to category of accused persons.
In that regard, she has drawn inspiration from Rattan Lal v.
State of Punjab2, T. Barai v. Henry Ah Hoe3 , Basheer v.
State of Kera/a4 and Pratap Singh v. State of Jharkhand'.
B Pyramiding the said facet, it is urged by Ms. Bhati that in the
instant case, the sentence being higher for the offence of
possession under the NDPSAct, such a provision cannot be
made retrospectively applicable to him. To appreciate the said
C submission, it is appropriate to refer to Section 9 of the Opium
Act. It reads as follows:-
"9. Penalty for illegal cultivation poppy, etc.
Any person who, in contravention of this Act, or of rules
D made and notified under section 5 or Section 8,-
(a) possesses opium, or
(b) transports opium, or
E (c) imports or exports opium, or
(d) sells opium, or
(e) omits to warehouse opium, or removes or does any
F act in respect of warehoused opium,
And any person who otherwise contravenes any such rule,
shall, on conviction before a Magistrate, be punished for
each such offence with imprisonment for a term which
G may extend to one year, or with fine which may extend to
one tho1Jsand rupees, or with both;
2 AIR 1965 SC 444
• (1983) 1 sec 111
H • (2004) 3 sec 609
• c2005) 3 sec 551
MOHAN LAL v. STATE OF RAJASTHAN 449
[DIPAK MISRA, J.]
And, where a fine is imposed, the convicting Magistrate A
shall direct the offender to be imprisoned in default of
payment of the fine for a term which may extend to six
months, and such imprisonment shall be in excess of any
other imprisonment to which he may have been
sentenced." B
7. On a perusal of the aforesaid provision, the
possession of opium is an offence and the sentence is
imprisonment for a term which may extend to one year or with
fine which may extend to Rs.1,000/- or both. Section 18 of the C
NDPSAct provides for punishment for contravention in relation
to opium poppy and opium. The provision as it stood at the
relevant time read as follows:
"18. Punishment for contravention in relation to D
opium poppy and opium.- Whoever, in contravention
of any provision of this Act, or any rule or order made or
condition of licence granted thereunder cultivates the
opium poppy or produces, manufactures, possesses,
sells, purchases, transports, imports inter-State, exports E
inter-State or uses opium shall be punishable with
rigorous imprisonment for a term which shall not be less
than ten years but which may extend to twenty-years and
shall also be liable to fine which shall not be less than F
one lakh rupees but which may extend to two lakh rupees
Provided that the Court may, for reasons to be recorded
in the judgment, impose a fine exceeding two lakh
rupees."
G
8. When one conceives of possession, it appears in
the strict sense that the concept of possession is basically
connected to "actus of physical control and custody". Attributing
this meaning in the strict sense would be understanding the H
factum of possession in a narrow sense. With the passage of
450 SUPREME COURT REPORTS [2015] 5 S.C.R.
A time there has been a gradual widening of the concept and
the quintessential meaning of the word possession. The
classical theory of English law on the term "possession" is
fundamentally dominated by Savigny-ian "corpus" and "animus"
doctrine. Distinction has also been made in "possession in
B fact" and "possession in law" and sometimes between
"corporeal possession" and "possession of right" which is
called "incorporeal possession". Thus, there is a degree of
flexibility in the use of the said term and that is why the word
C possession can be usefully defined and understood with
reference to the contextual purpose for the said expression.
The word possession may have one meaning in one connection
and another meaning in another.
9. The term "possession" consists of two elements.
D First, it refers to the corpus or the physical control and the
second, it refers to the animus or intent which has reference to
exercise of the said control. One of the definitions of
possession given in Black's Law dictionary is as follows:
E "Having control over a thing with the intent to have and to
exercise such control. Oswald v. Weigefd. The detention
and control or the manual or ideal custody, of anything
which may be the subject of property, for one's use and
enjoyment, either as owner or as the proprietor of a
F
qualified right in it, and either held personally or by another
who exercises it in one's place and name. Act or state
of possessing. That condition of facts under which one
can exercise his power over a corporeal thing at his
G pleasure to the exclusion of all other persons. The law, in
general, recognizes two kinds of possession: actual
possession and constructive possession. A person who
knowingly has direct physical control over a thing, at a
given time, is then in actual possession of it. A person
H who, although not in actual possession, knowingly has
• 219 Kan. 616, 549 p.2 d 568, 569
MOHAN LAL v. STATE OF RAJASTHAN 451
[DIPAK MISRA, J.]
both the power and the intention at given time to exercise A
dominion or control over a thing, either directly or through
another person or persons, is then in constructive
possession of it. The law recognizes also that
possession may be sole or joint. If one person alone
has actual or constructive possession of a thing, B
possession is sole. If two or more persons share actual
or constructive possession of a thing, possession is joint."
In the said dictionary, the term "possess" in the context
of narcotic drug law means:- C
"Term "possess." Under narcotic drug laws, means actual
control, care and management of the drug. Collini v.
State7• Defendant 'possesses' controlled substance when
defendant knows of substance's presence, substance D
is immediately accessible, and defendant exercises
"dominion or control" over substance. State v.
Homaday8."
And again E
"Possession as necessary for conviction of offense of
possession of controlled substances with intent to
distribute may be constructive as well as actual, U.S. v.
Craig9 ; as well as joint or exclusive, Garvey v. State 10. F
The defendants must have had dominion and control over
the contraband with knowledge of its presence and
character. U. S, v. Morando-Alvarez 11 •
Possession, as an element of offense of stolen goods, G
7 Tex. Cr. App. 487 S.W. 2d 132, 135
• 105 Wash. 2d 120, 713 p.2d 71, 74
• C.A. Tenn, 522 F.2d 29, 31
10
176 Ga. App, 268, 335 S.E.2d 640, 647
11
H
C.A. Ariz, 520 F.2d 882, 884
452 SUPREME COURT REPORTS [2015) 5 S.C.R.
A is not limited to actual manual control upon or about the
person, but extends to things under one's.power and
dominion. McConnell v. State 12 •
Possession as used in indictment charging possession
B of stolen mail may mean actual possession or
constructive possession. U.S. v. Ellison 13•
To constitute "possession" of a concealable weapon
under statue proscribing possession of a concealable
c weapon by a felon, it is sufficient that defendant have
constructive possession and immediate access to the
weapon. State v. Kelley 14 ."
10. In Stroud's dictionary, the term possession has been
D defined as follows:
""Possession" (Drugs (Prevention of Misuse) Act 1964
(c. 64), s.1 (1)). A person does not lose "possession" of
an article which is mislaid or thought erroneously to have
E been destroyed or disposed of, if, in fact, it remains in
his care and control (R. v. Buswe/f 5}.
·11. Dr. Harris, in his essay titled "The Concept of
Possession in English Law16" while discussing the various rules
F relating to possession has stated that "possession" is a
functional and relative concept, which gives the Judges some
discretion in applying abstract rule to a concrete set of facts.
The learl)ed author has suggested certain factors which have
been held to be relevant to conclude whether a person has
G acquired possession for the purposes of a particular rule of
12 48 Ala.App. 523, 266 So.2d 328, 333
13
C.A. Cal., 469 F.2d 413, 415
14 12 Or.APP. 496 507 P.2d 837, 837
15
[1972) 1 W.L.R. 64
H 16 Publ.ished in "Oxford Essays on Jurisprudence" (Edited by AG Guest, First
Series, Clarendon Press, Oxford.
MOHAN LAL v. STATE OF RAJASTHAN 453
[DIPAK MISRA, J.]
law. Some of the factors enlisted by him are; (a) degree of A
physical control exercised by person over a thing, (b)
knowledge of the person claiming possessory rights over a
thing, about the attributes and qualities of the thing, (c) the
persons' intention in regard to the thing, that is, 'animus
possessionis' and 'animus domini', (d) possession of land on B
which the thing is claimed is lying; also the relevant intention of
the occupier of a premises on which the thing is lying thereon
to exclude others from enjoying the land and anything which
happens to be lying there; and Judges' concept of the social C
purpose of the particular rule relied upon by the plaintiff. The
learned author has further proceeded to state that quite naturally
the policies behind different possessory rules will vary and it
would justify the courts giving varying weight to different factors
relevant to possession according to the particular rule in o
question. According to Harris, the Judges have at the back of
their mind a perfect pattern in which the possessor has
complete, exclusive and unchallenged physical control over
the subject; full knowledge of its existence; attributes and
location, and a manifest intention to act as its owner and E
exclude all others from it. As a further statement he elucidates
that courts realise that justice and expediency compel constant
modification of the ideal pattern. The person claiming
possessory rights over a thing may have a very limited degree
of physical control over the object or he may have no intention F
in regard to an object of whose existence he is unaware of,
though he exercises control over the same or he may have
clear intention to exclude other people from the object, though
he has no physical control over the same. In all this variegated G
situation, states Harris, the person concerned may still be
conferred the possessory rights. The purpose of referring to
the aforesaid principles and passages is that over the years,
it has been seen that courts have refrained from adopting a
doctrinaire approach towards defining possession. A H
454 SUPREME COURT REPORTS [2015] 5S.C.R.
A functional and flexible approach in defining and understanding
the possession as a concept is acceptable and thereby
emphasis has been laid on different possessory rights
according to the commands and justice of the social policy.
Thus, the word "possession" in the context of any enactment
B would depend upon the object and purpose of the enactment
and an appropriate meaning has to be assigned to the word
to effectuate the said object.
12. Coming to the context of Section 18 of the NDPS
C Act, it would have a reference to the concept of conscious
possession. The legislature while enacting the said law was
absolutely aware of the said element and that the word
"possession" refers to a mental state as is noticeable from the
language employed in Section 35 of the NDPS Act. The said
0
provision reads as follows:-
"35. Presumption of culpable mental state. - (1) In
any prosecution for an offence under this Act which
requires a culpable mental state of the accused, the Court
E shall presume the existence of such mental state but it
shall be a defence for the accused to prove the fact that
he had no such mental state with respect to the act
charged as an offence in that prosecution.
F Explanation. - In this section "culpable mental state"
includes intention, motive, knowledge, of a fact and belief
in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be
G .proved only when the Court believes it to exist beyond a
reasonable doubt and not merely when its existence is
established by a preponderance of probability."
On a perusal of the aforesaid provision, it is plain as
H day that it includes knowledge of a fact. That apart, Section
MOHAN LAL v. STATE OF RAJASTHAN 455
[DIPAK MISRA, J.]
35 raises a presumption as to knowledge and culpable mental A
state from the possession of illicit articles. The expression
"possess or possessed" is often used in connection with
statutory offences of being in possession of proh_ibited drugs
and contraband substances. Conscious or mental state of
possession is necessary and that is the reason for enacting B
Section 35 of the NDPSAct.
13. In Noor Aga v. State of Punjab and Anr. 17 , the
Court noted Section 35 of the NDPS Act which provides for
presumption of culpable mental state and further noted that it C
also provides that the accused may prove that he had no such
mental state with respect to the act charged as an offence
under the prosecution. The Court also referred to Section 54
of the NDPS Act which places the burden to prove on the
0
accused as regards possession of the contraband articles on
account of the same satisfactorily. Dealing with the
constitutional validity of Section 35 and 54 of the NDPS Act,
the Court ruled thus:-
"The provisions of Section 35 of the Act as also Section E
54 thereof, in view of the decisions of this Court,
therefore, cannot be said to be ex facie unconstitutional.
We would, however, keeping in view the principles
noticed hereinbefore, examine the effect thereof vis-a- F
vis the question as to whether the prosecution has been
able to discharge its burden hereinafter."
And thereafter proceeded to state that:-
"58. Sections 35 and 54 of the Act, no doubt, raise G
presumptions with regard to the culpable mental state
on the part of the accused as also place the burden of
proof in this behalf on the accused; but a bare perusal of
the said provision would clearly show that presumption
H
11
c2ooa> 16 sec 411
456 SUPREME COURT REPORTS [2015] 5 S.C.R.
A would operate in the trial of the accused only in the event
the circumstances contained therein are fully satisfied.
An initial burden exists upon the prosecution and only
when it stands satisfied, would the legal burden shift. Even
then, the standard of proof required for the accused to
B prove his innocence is not as high as that of the
prosecution. Whereas the standard of proof required to
prove the guilt of the accused on the prosecution is
"beyond all reasonable doubt" but it is "preponderance
of probability" on the accused. If the prosecution fails to
c prove the foundational facts so as to attract the rigours
of Section 35 of the Act, the actus reus which is
possession of contraband by the accused cannot be said
to have been established.
D
59. With a view to bring within its purview the requirements
of Section 54 of the Act, element of possession of the
contraband was essential so as to shift the burden on
the accused. The provisions being exceptions to the
E general rule, the generality thereof would continue to be
operative, namely, the element of possession will have
to be proved beyond reasonable doubt."
14. In Bhola Singh v. State of Punjab 18 , the Court, after
F referring to the pronouncement in Noor Aga (supra), concurred
with the observation that only after the prosecution has
discharged the initial burden to prove the foundational facts,
then only Section 35 would come into play. While dislodging
the conviction, the Court stated:-
G
" .... it is apparent that the initial burden to prove that the
appellant had the knowledge that the vehicle he owned
was being used for transporting narcotics still lay on the
prosecution, as would be clear from the word "knowingly",
H "(2011) 11 sec 653
MOHAN LAL v. STATE OF RAJASTHAN 457
[DIPAK MISRA, J.]
and it was only after the evidence proved beyond A
reasonable doubt that he had the knowledge would the
presumption under Section 35 arise. Section 35 also
presupposes that the culpable mental state of an accused
has to be proved as a fact beyond .reasonable doubt
and not merely when its existence is established by a B
preponderance of probabilities. We are of the opinion
that in the absence of any evidence with regard to the
mental state of the appellant no presumption under
Section 35 can be drawn. The only evidence which the
prosecution seeks to rely on is the appellant's conduct in
c
giving his residential address in Rajasthan although he
was a resident of Fatehabad in Haryana while registering
the offending truck cannot by any stretch of imagination
fasten him with the knowledge of its misuse by the driver D
and others." •
15. Having noted the approach in the aforesaid two
cases, we may take note of the decision in Dharampal Singh
v. State of Punja19 , when the Court was referring to the E
expression "possession" in the context of Section 18 of the
NDPS Act. In the said case opium was found in the dicky of
the car when the appellant was driving himself and the
contention was canvassed that the said act would not establish
conscious possession. In support of the said submission, F
reliance was placed on Avtar Singh v. State of Punjab20 and
Sorabkhan Gandhkhan Pathan v. State of Gujaraf- 1• The
Court, repelling the argument, opined thus:-
"12. We do not find any substance in this submission of G
the learned counsel. The appellant Dharampal Singh was
found driving the car whereas appellant Major Singh was
travelling with him and from the dicky of the car 65 kg of
opium was recovered. The vehicle driven by the appellant
,. c201oi s sec 608 H
20
c2002i 1 sec 419
21 (2004) 13 sec 608
458 SUPREME COURT REPORTS [2015) 5 S.C.R.
A Dharampal Singh 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 the
B prosecution and once it is discharged legal burden would
shift on the 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.
c Once the plea of the accused 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
D convict an accused.
13. It needs no emphasis that the expression
"possession" is not capable of precise and completely
logical definition of universal application in the context of
E 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 that it was not a conscious possession has to
F establish it because it is within his special knowledge.
)()()( )()()( )()()( )()()(
15. From a plain reading of the aforesaid it is evident
that it creates a legal fiction and presumes the person in
G
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
H state. It includes knowledge of fact. The possession,
MOHAN LAL v. STATE OF RAJASTHAN 459
[DIPAK MISRA, J.]
therefore, has to be understood in the context thereof A
and when tested on this anvil, we find that the appellants
have not been able to satisfactorily account for the
possession of opium.
16. Once possession is established the court can B
presume that the accused had culpable mental state and
have committed the offence. In somewhat similar facts
this Court had the occasion to consider this question in
Madan Lalv. State of H.P. 22, wherein it has been held as
follows: (SCC p. 472, paras 26-27) c
"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 D
gives a statutory recognition of this position 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.
E
27. In the factual scenario of the present case, not only
possession but conscious possession has been
established. It has not been shown by the accused-
appellants that the possession was not conscious in the
logical background of Sections 35 and 54 of the Act."" F
16. From the aforesaid exposition of law it is quite vivid
that the term "possession" for the purpose of Section 18 of the
NDPS Act could mean physical possession with animus,
custody or dominion over the prohibited substance with animus G
or even exercise of dominion and control as a result of
concealment. The animus and the mental intent which is the
primary and significant element to show and establish
possession. Further, personal knowledge as to the existence H
22 (2003) 1 sec 465
460 SUPREME COURT REPORTS [2015] 5 S.C.R.
A of the "chattel" i.e. the illegal substance at a particular location
or site, at a relevant time and the intention based upon the
knowledge, would constitute the unique relationship and
manifest possession. In such a situation, presence and
existence of possession could be justified, for the intention is
8 to exercise right over the substance or the chattel and to act
as the owner to the exclusion of others. In the case at hand,
the appellant, we hold, had the requisite degree of control when,
even if the said narcotic substance was not within his physical
C control at that moment. To give an example, a person can
conceal prohibited narcotic substance in a property and move
out thereafter. The said person because of necessary animus
would be in possession of the said substance even if he is
not, at the moment, in physical control. The situation cannot
D be viewed differently when a person conceals and hides the
prohibited narcotic substance in a public space. In the second
category of cases, the person would be in possession because
he has the necessary animus and the intention to retain control
and dominion. As the factual matrix would exposit, the
E accused-appellant was in possession of the prohibited or
contraband substance which was an offence when the NDPS
Act came into force. Hence, he remained in possession of
the prohibited substance and as such offence under Section
18 of the NDPSAct is made out. The possessory right would
F continue unless there is something to show that he had been
divested of it. On the contrary, as we find, he led to discovery
of the substance which was within his special knowledge, and,
therefore, there can be no scintilla of doubt that he was in
G possession of the contraband article when the NDPSAct came
into force. To clarify the situation, we may give an example. A
person had stored 100 bags of opium prior to the NDPS Act
coming into force and after coming into force, the recovery of
the possessed article takes place. Certainly, on the date of
H recovery, he is in possession of the contraband article and
MOHAN LAL v. STATE OF RAJASTHAN 461
[DIPAK MISRA, J.]
possession itself is an offence. In such a situation, the accused- A
appellant cannot take the plea that he had committed an
offence under Section 9 of the Opium Act and not under Section
18 of the NDPSAct.
17. After dealing with the concept of possession, we B
think it apt to address the issue raised by the learned counsel
for the appellant that he could have convicted and sentenced
under the Opium Act, as that was the law in force at the time of
commission of an offence and if he is convicted under Section
18 of the NDPS Act, it would tantamount to retrospective C
operation of law imposing penalty which is prohibited under
Article 20(1) of the Constitution of India. Article 20(1) gets
attracted only when any penal law penalises with retrospective
effect i.e. when an act was not an offence when it was
D
committed and additionally the persons cannot be subjected
to penalty greater than that which might have been inflicted
• under the law in force at the time of commission of the offence.
The Article prohibits application of ex post facto law. In Rao
Shiv Bahadur Singh and Anr. v. State of Vindhya E
Pradesh2-3 , while dealing with the import under Article 20( 1) of
the Constitution of India, the Court stated what has been
prohibited under the said Article is the conviction and sentence
in a criminal proceeding under ex post facto law and not the
trial thereof. The Constitution Bench has held that:- F
".... what is prohibited under Article 20 is only conviction
or sentence under an 'ex post facto' law and not the trial
thereof. Such trial under a procedure different from what
obtained at the time of the commission of the offence or G
by a Court different from that which had competence at
the time cannot 'ipso facto' be held to be unconstitutional.
A person accused of the commission of a particular Court
or by a particular procedure, except in so far as any
H
23 AIR 1953 SC 394
462 SUPREME COURT REPORTS [2015] 5 S.C.R.
A constitutional objection by way of discrimination or the
violation of any other fundamental right may be involved."
In the instant case, Article 20(1) would have no
application. The actus of possession is not punishable with
B retrospective
. affect. No .offence is created under Section 18
of the NDPSActwith retrospective effect. What is punishable
is possession of the prohibited article on or after a particular
date when the statute was enacted, creating the offence or
enhancing the punishment. Therefore, if a person is in
C possession of the, banned substance on the date when the
NDPS Act was enforced, he would commit the offence, for on
the said date he would have both the 'corpus' and 'animus'
necessary in law.
D 18. We would be failing in our duty, if we do not analyse
the decision in Harjit Singh (supra). In the said case the Court
was dealing with the Notification dated 18.11.2009 that has
replaced the part of the Notification dated 19.10.2001.
E Dealing yvoith the said aspect, the Court held:-
"13. Notification dated 18-11-2009 has replaced the part
of the Notification dated 19-10-2001 and reads as under:
"In the Table at the end after Note 3, the following Note
F shall be inserted, namely:
(4) The quantities shown in Column 5 and Column 6
of the Table relating to the respective drugs shown in
Column 2 shall apply to the entire mixture or any
G solution or any one or more narcotic drugs or
psychotropic substances of that particular drug in
dosage form or isomers, esters, ethers and salts of
these drugs, including salts of esters, ethers and
isomers, wherever existence of such substance is
H
MOHAN LAL v. STATE OF RAJASTHAN 463
[DIPAK MISRA, J.]
possible and not just its pure drug content." A
14. Thus, it is evident that under the aforesaid notification,
the whole quantity of material recovered in the form of
mixture is to be considered for the purpose of imposition
of punishment. However; the submission is not B
acceptable as it is a settled legal proposition that a penal
provision providing for enhancing the sentence does not
operate retrospectively. This amendment, in fact,
provides for a procedure which may enhance the
sentence. Thus, its application would be vio)ative of c
restrictions imposed by Article 20 of the Constitution of
India. We are of the view that the said Notification dated
tS-11-2009 cannot be applied retrospectively and
therefore, has no application so far as the instant case is
D
concerned."
The present fact situation is absolutely different and,
therefore, the said decision has no applicability to the case at
hand.
E
19. Learned counsel for the State has contended that
the offence in question is a continuing offence, for the offence
is basically a possession of the contraband articles. He has
commended us to the authority in State of Bihar v. Deokaran
Nenshi &Anr. 24 , wherein it has been held that:- F
"A continuing offence is one which is susceptible of
continuance and is distinguishable from the one which is
committed once and for all. It is one of those offences
which arises out of a failure to obey or comply with a rule G
or its requirement and which involves a penalty, the liability
for which continues until the rule or its requirement is
obeyed or complied with. On every occasion that such
disobedience or .non-compliance occurs and reoccurs,
H
.. (1972) 2 sec s90
464 SUPREME COURT REPORTS [2015] 5 S.C.R.
A there is the offence committed. The distinction between
the two kinds of offences is between an act or omission
which constitutes an offence once and for all and an act
or omission which continues, and therefore, constitutes
a fresh offence every time or occasion on which it
B continues. In the case of a continuing offence, there is
thus the ingredient of continuance of the offence which is
absent in the case of an offence which takes place when
an act or omission is committed once and for all."
C 20. Mr.Shiv Mangal Sharma, learned MG for the State
has also drawn inspiration from Udai Shankar Awasthi v.
State of Uttar Pradesh and Anr. 25 In the said case, while
dealing with the concept of continuing offence, after referring
to Section 472 of Criminal Procedure Code, 1973, (CrPC)
0
the Court has stated that the expression "continuing offence"
has not been defined in CrPC because it is one of those
expressions which does not have a fixed connotation and,
therefore, the formula of universal application cannot be
E formulated in this respect. The court referred to Balakrishna
Sava/ram Pujari Waghmare v. Shree Dhyaneshwar
Maharaj Sansthan 26 , Gokak Patel Vo/kart Ltd. v.
Dundayya Gurushiddaiah Hiremath17 and eventually held
thus:
F
"Thus, in view of the above, the law on the issue can be
summarised to the effect that, in the case of a continuing
offence, the ingredients of the offence continue i.e. endure
even after the period of consummation, whereas in an
G instantaneous offence, the offence takes place once and
for all i.e. when the same actually takes place. In such
25
c2013) 2 sec 435
"" AIR 1959 SC 798
H 21 (1991) 2 sec 141
MOHAN LAL v. STATE OF RAJASTHAN 465
[DIPAK MISRA, J.]
cases, there is no continuing offence, even though the A
damage resulting from the injury may itself continue."
21. In this context, it would be fruitful to refer to a three-
Judge Bench decision in Maya Rani Punj v. Commissioner
of/ncome Tax, DelhP8 . In the said case, the Court approved B
what has been said by the High Court of Bombay in State v.
A.H. Bhiwandhiwa/ia29• For the sake of completeness, we
reproduce the relevant paragraph:-
"ln State v. A.H. Bhiwandiwalla (a decision referred to in c
CWTv. Suresh Seth 30), Gajendragadkar, J. (as hethen
was), after quoting the observations of Beaumount, C.J.
in an earlier Full Bench decision of that Court observed:
"Even so, this expression has acquired a well-recognised o
meaning in criminal law. If an act committed by an
accused person constitutes an offence and if that act
continues from day to day, then from day to day a fresh
offence is committed by the accused so long as the act
continues. Normally and in the ordinary course an offence E
is committed only once. But we may have offences which
can be committed from day to day and it is offences falling
·in this latter category that are described as continuing .
offences.""
F
22. We have dwelled upon the said submission, as
the learned counsel for the State has seriously addressed that
it is a continuing offence. We have already opined that on the
date the NDPS Act came into force, the accused-appellant
was still in possession of the contraband article. Thus, it was G
possession in continuum and hence, the principle with regard
to continuing offence gets attracted.
28
(1986} 1 sec 445
28
AIR 1955 Born 161
H
"' (1981} 2 sec 190
466 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 23. It is submitted by Ms. Aishwarya Bhati, learned
counsel for the appellant that there has been non-compliance
of Section 42 of the NDPS Act and hence, the conviction is
vitiated. It is urged by her that the Investigating Officer has not
reduced the information to writing and has also not led any
B evidence of having made a full report to his immediate official
superior. The High Court has taken note of the fact that
information given to Bheem Singh, PW-12, and recovery was
made by him who was the Sub-Inspector and SHO at the police
C station. That apart, in this context, we may refer with profit to
the Constitution Bench decision in Karnail Singh v. State of
Haryana31 , wherein the issue emerged for consideration is
whether Section 42 of the NDPSAct is mandatory and failure
to take down the information in writing and forthwith sending a
o report to his immediate officer superior would cause prejudice
to the accused. The Court was required to reconcile the
decisions in Abdul Rashid Ibrahim Mansuri v. State of
Gujarat» and Sajan Abraham v. State of Kera/a". The
Constitution Bench explaining the position opined that Abdul
E Rashid (supra) did not require about literal compliance with
the requirements of Section 42(1) and 42(2) nor did Sajan
Abraham (supra) hold that requirement of Section 42(1) and
42(2) need not be fulfilled at all. The larger Bench summarized
the effect of two decisions. The summation is reproduced
F below:-·
"(a) The officer on receiving the information of the nature
referred to in sub-section (1) of Section 42 from any
person had to record it in writing in the register concerned
G and forthwith send a copy to his immediate official
superior, before proceeding to take action in terms of
clauses (a) to (cf) of Section 42(1) .
., (2009) a sec 539
H S2 (2000) 2 sec 513
33 (2001) e sec 692
MOHAN LAL v. STATE OF RAJASTHAN 467
[DIPAK MISRA, J.]
(b) But if the information was received when the officer A
was not in the police station, but while he was on the
move either on patrol duty or otherwise, either by mobile
phone, or other means, and the information calls for
immediate action and any delay would have resulted in
the goods or evidence being removed or destroyed, it B
would not be feasible or practical to take down in writing
the information given to him, in such a situation, he could
take action as per clauses (a) to (d) of Section 42(1) and
thereafter, as soon as it is practical, record the information
in writing and forthwith inform the same to the official
c
superior.
(c) In other words, the compliance with the requirements
of Sections 42( 1) and 42(2) in regard to writing down the
D
information received and sending a copy thereof to the
superior officer, should normally precede the entry, search
and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the
information in writing and sending a copy thereof to the E
official superior may get postponed by a reasonable
period, that is, after the search, entry and seizure. The
question is one of urgency and expediency.
(d) While total non-compliance with requirements of sub- F
sections (1) and (2) of Section 42 is impermissible,
delayed compliance with satisfactory explanation about
the delay will be acceptable compliance with Section 42.
To illustrate, if any delay may result in the accused
escaping or the goods or evidence being destroyed or G
removed, not recording in writing the information
received, before initiating action, or non-sending of acopy
of such information to the official superior forthwith, may
not be treated as violation of Section 42. But if the
H
468 SUPREME COURT REPORTS [2015] 5 S.C.R.
A information was received when the police officer was in
the police station with sufficient time to take action, and
if the police officer fails to record in writing the information
received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance being
B a clear violation of Section 42 of the Act. Similarly, where
the police officer does not record the information at all,
and does not inform the official superior at all, then also
it will be a clear violation of Section 42 of the Act. Whether
there is adequate or substantial compliance with Section
c 42 or not is a question of fact to be decided in each case.
The above position got strengthened with the amendment
to Section 42 by Act 9 of 2001."
24. In Rajinder Singh v. State of Haryana 34 , placing
0
reliance on the Constitution Bench, it has been opined that
total non-compliance with the provisions of sub-sections (1)
and (2) of Section 42 of the Act is impermissible but delayed
compliance with satisfactory explanation for the delay can,
E however, be countenanced.
25. In the present case, the High Court has noted that
the information was given to the competent authority. That
apart, the High Court has further opined that in the case at
F hand Section 43 applies. Section 43 of the NDPS Act
contemplates seizure made in the public place. There is a
distinction between Section 42 and Section 43 of the NDPS
Act. If a search is made in a public place, the officer taking the
search is not required to comply with sub Sections (1) and (2)
G of Section 42 of the NDPS Act. As has been stated earlier,
the seizure has taken place beneath a bridge of public road
accessible to public. The officer, Sub-Inspector is an
empowered officer under Section 42 of the Act. As the place
is a public place and Section 43 comes into play, the question
H
,. c2011) a sec 130
MOHAN LAL v. STATE OF RAJASTHAN 469
[DIPAK MISRA, J.]
of non-compliance of Section 42(2) does not arise. The A
aforesaid view gets support from the decisions in Directorate
of Revenue and Anr. v. Mohammed Nisar Holia35 and
State, NCT of Delhi v. Malvinder Singh36 •
26. Learned counsel for the appellant has also B
contended that there has been non-compliance of Section 57
of the NDPSAct, which reads as follows:-
"Report of arrest and seizure - Whenever any person
makes any arrest or seizure under this Act, he shall, within c
fortyeight hours next after such arrest or seizure, make a
full report of all the particulars of such arrest or seizure to
his immediate official superior."
27. A three-Judge Bench in Sajan Abraham (supra), D
placing reliance on State of Punjab v. Balbir Singh37 , has
held that Section 57 is not mandatory in nature and when
substantial compliance is made, it would not vitiate the
prosecution case. In Karnail Singh (supra), the Constitution
Bench, while explaining the ratio laid down in Sajan Abraham E
(supra), analysed the requirement of Section 42(1) and 42(2)
and opined that the said pronouncement never meant that those
provisions need not be fulfilled at all. However, the Constitution
Bench has not delved into the facet of Section 57 of the NDPS
Act. F
28. In Kishan Chand v. State of Haryana38 , the Court
while dealing with the compliance of Sections 42, 50 and 57,
has opined thus:-
G
"21. When there is total and definite non-compliance with
3
• (2oos) 2 sec 370
,. (2007) 11 sec 314
37 (1994) 3 sec 299
H
3
• (2013) 2 sec so2
470 SUPREME COURT REPORTS [2015] 5 S.C.R.
A such statutory provisions, the question of prejudice loses
its significance. It will per se amount to prejudice. These
are indefeasible, protective rights vested in a suspect
and are incapable of being shadowed on the strength of
substantial compliance.
B
22. The purpose of these provisions is to provide due
protection to a suspect against false implication and
ensure that these provisions are strictly complied with to
further the legislative mandate of fair investigation and
c trial. It will be opposed to the very essence of criminal
jurisprudence, if upon apparent and admitted non-
compliance with these provisions in their entirety, the
court has to examine the element of prejudice. The
element of prejudice is of some significance where
D provisions are directory or are of the nature admitting
substantial compliance. Where the duty is absolute, the
element of prejudice would be of least relevance.
Absolute duty coupled with strict compliance would rule
E out the element of prejudice where there is total non-
compliance with the provision."
After so stating, the Court proceeded to address the
separate rights and protection under the said provisions and
F in that context ruled:-
"Reliance placed by the learned counsel appearing for
the State on SajanAbraham is entirely misplaced, firstly
in view of the Constitution Bench judgment of this Court
in Kamai/ Singh. Secondly, in that case the Court was
G
also dealing with the application of the provisions of
Section 57 of the Act which are worded differently and
have different requirements, as opposed to Sections 42
and 50 of the Act. It is not a case where any reason has
H come in evidence as to why the secret information was
MOHAN LAL v. STATE OF RAJASTHAN 471
[DIPAK MISRA, J.]
not reduced to writing and sent to the higher officer, which A
is the requirement to be adhered to "pre-search". The
question of sending it immediately thereafter does not
arise in the present case, as it is an admitted position
that there is total non-compliance with Section 42 of the
Act. The sending of report as required under Section 57 B
of the Act on 20-7-2000 will be no compliance, factually
and/or in the eye of the law to the provisions of Section
42 of the Act. These are separate rights and protections
available to an accused and their compliance has to be
done in accordance with the provisions of Sections 42,
c
50 and 57 of the Act. They are neither interlinked nor
interdependent so as to dispense compliance of one with
the compliance of another. In fact, they operate in different
fields and at different stages. That distinction has to be D
kept in mind by the courts while deciding such cases."
29. In the instant case, on perusal of the evidence, it is
clear that there has been substantial compliance of Section
57 of the NDPSAct and, therefore, the question of prejudice E
does not arise.
30. Ms. Bhati, learned counsel forthe appellant has also
contended that the appellant was in custody in connection with
FIR no. 95of1985 and while in custody, he suffered a disclosure F
statement and led to discovery of the contraband articles.
Submission of the learned counsel for the appellant is that the
said statement cannot be taken aid of for the purpose of
discovery in connection with the present case. It is
demonstrable from the factual matrix that in connection with G
FIR No. 95 of 1985, he was arrested and while he was
interrogated, he led to discovery in connection with the stolen
contraband articles from the malkhana which was the matter
of investigation in FIR no. 96of1985. There is no shadow of
H
472 SUPREME COURT REPORTS [2015] 5 S.C.R.
A doubt that the accused-appellant was in police custody.
Section 27 of the Indian EvidenceAct, 1872 provides that when
any fact is deposed to as discovery in consequence of the
information received from a person accused of any offence in
custody of a police officer, so much of such information whether
B it amounts to confession or not as relates distinctly to the fact
thereby discovered may be proved. It is well settled in law
that the components or portion which was the immediate cause
of the discovery could be acceptable legal evidence [See A.K
C Subraman and Others v. Union of India and Others39 ]. The
words employed in Section 27 does not restrict that the
accused must be arrested in connection with the same offence.
In fact, the emphasis is on receipt of information from a person
accused of any offence. Therefote, when the accused-
D appellant was already in custody in connection with FIR no. 95
of 1985 and he led to the discovery of the contraband articles,
the plea that it was not done in connection with FIR no. 96 of
1985, is absolutely unsustainable. Be it stated here, that the
recovery has been proven to the hilt. The accused,
E accompanied by the witnesses, had gone beneath the bridge
built between Gupal Sariya and Madiyai and he himself had
removed the big stone and dug the earth and took out the
packet which was bound in a long cloth from which a packet
was discovered and the said packet contained 10 kg and 200
F gms of opium. The learned trial Judge as well as the High
Court has, by cogent and coherent reasons, accepted the
recovery. On a scrutiny of the same, we also find that there is
nothing on record to differ with the factum of recovery of the
G contraband articles ..
31. Another submission that has been advanced by the
learned counsel for the appellant is that the seized articles were
not sent immediately for chemical examination. The FSL report,
H Ex. P-14, dated 15.9.1986 states that a letter along with a
39 AIR 1976 SC 483
MOHAN LAL v. STATE OF RAJASTHAN 473
[DIPAK MISRA, J.]
sealed packet was received with seals intact. The said report A
further mentions that packet was covered in white cloth and on
opening of the packet, the examiner found a cylindrical tin and
the substance on examination was found to be an opium having
1.44% morphine. The seal being intact, the description of the
case number and the impression of seal having been fixed on B
memo of recovery, there is no reason or justification to discard
the prosecution case on the ground of delay on this score. In
Hardip Singh v. State of Punjab40 , a two-Judge Bench while
dealing with the question of delay in sending the samples of C
opium to the FSL, opined that it was of no consequence, for
the fact of the recovery of the said sample from the possession
of the appellant had been proven and established by cogent
and reliable evidence and that apart, it had also come in
evidence that till the date of parcels of samples were received o
by the Chemical Examiner, the seal put on that parcel was
intact. Under these circumstances, the Court ruled that the
said facts clearly proves and establishes that there was no
tampering with the aforesaid seal in the sample at any stage
and the sample received by the analyst for chemical E
examination contained the same opium which was recovered
from the possession of the appellant. The plea that there was
40 days delay was immaterial and would not dent the
prosecution case.
F
32. In view of the aforesaid analysis, we do not perceive
any substance in this appeal and accordingly, the same is
dismissed.
Kalpana K. Tripathy Appeal dismissed. G
'° c2ooa) a sec 557
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