BALBIR KAURversusSTATE OF PUNJAB

                       [2009] 10 S.C.R. 298


A                         BALBIR KAUR
                                 V.
                       STATE OF PUNJAB
               (Criminal Appeal No. 2108 of 2008)
                           JULY 7, 2009
B
         [DR. MUKUNDAKAM SHARMA AND DR. B. S.
                     CHAUHAN, JJ.]

       Narcotic Drugs and Psychotropic Substances Act, 1985
c - ss. 15, 50, 52 and 57 - Accused found in possession of 2
  bags containing 61 kg. of contraband - Search made before
  Gazetted Officer by a Lady Constable at the option of the
  accused - Bias alleged against the prosecution - Delay in
  sending the samples; and non-examination of independent
0 witness, and non-compliance of provisions ulss. 50, 52 and 57
  also alleged - Conviction by Court;.. below - On appeal, held:
  Conscious possession of the accused of the contraband
  proved - Case of bias not made out - Delay has no
  consequence - Allegation of violation of provisions ulss. 52
E and 57 are technical in nature, in view of finding of
  possessions - Recovery having made from the bags, plea
  as regards violation of s.50 legally untenable.
      AppeHant-accused was prosecuted u/s. 15 of
  Narcotic Drugs and Psychotropic Substances Act, 1985
F as she was found in possession of 2 bags containing 61
  kgs. of poppy husk, without any permit or licence. She
  was convicted by trial Court. High Court confirmed the
  conviction. Hence the present appeal.
        Dismissing the appeal, the Court
G
         Held: 1. The issue with regard to conscious
    possession is to be determined on the fact situation of
    each case. The appellant was found sitting on the bags
    in the road and seeing the police party she behaved in a
H                              298
                 BALBIR KAUR v. STATE OF PUNJAB                   299

 )"\   - suspicious manner. Nothing has come on evidence to A
         show that at that time any other person was present at
         the scene of occurrence. When she was asked about the
         contents in the bag she herself admitted that jt contained
         poppy husk. Therefore, her possession of the
         contraband goods was conscious possession. PW-6 has             s
         categorically stated this in his evidence. Not even a
         suggestion was put to him in the cross-examination in
         that regard. In any case the said two bags were carried
         by the appellant as stated by the said witness, and upon
         search the same were found to contain poppy husk .. c
         [Paras 7, 9 and 10] [305-F; 306-B; 307-E-G; 308-A-B]

-·           2. No case of bias has been made out for the earlier
        proceedings which were initiated by the appellant herself
        by filing an application u/s 438 CrPC for anticipatory bail.
        Another incident which is referred to and relied upon by D
        the defence to show bias is that Sub Inspector (PW-6)
        along with other police officials raided the appellant's
        residence but nothing incriminating was recovered from
        there. That itself does not make out a case of bias when
        she was found in broad light having possession of two E
        bags of poppy husk. [Para 10] [308-A-B]
              Madan Lal v. State of H. P. (2003) 7 SCC 465, relied on.
             3. Since recovery of poppy husk was made from the
        bags carried by the appellant, therefore, the submission . F
        that there was violation of the provisions of Sections 52
        - 57 of the NDPS Act is baseless and devoid of any merit.
        [Para 8] [305-G]
            State of Punjab v. Baldev Singh, (1999) 6 SCC 172;
        Avtar Singh v. State of Punjab, (2002) 2 SCC 419; State of G
        Punjab v. Ba/kar Singh, (2004) 3 SCC 582; Dilip v. State of
        M P.; State of Haryana v. Mai Ram, (2008) 8 SCC 292 and
        Hardip Singh v. State of Punjab, (2008) 8 SCC 557, referred
        to.
                                                                         H
     300       SUPREME COURT REPORTS          [2009] 'IO S.C.R.


 A      4. In view of the concurrent findings that the
   appellant was in conscious possession of the said
   contraband goods, the allegation of non-disclosure of the
   purpose of search and the grounds of arrest to her are
   all of technical nature and without being any material
 B force in them. The appellant hersc If knew that she was
   being searched for possession of contraband goods, and
   therefore, she had also sought for protection as provided
   u/ss. 52 and 57 of NDPS Act. The violation of the
   provisions of the NDPS Act was clearly known to her.
 C The allegation that she herself asked for such protection
   instead of prosecution giving her the option to be
   searched before a Gazetted Officer, as required under the
   law, would not in any manner adversely affect her
   conviction and order of sentence passed by the courts
   below. No prejudice could be shown by the appellant
 0
   against the Gazetted Officer and the lady officer present
   at the time of search. [Para 11) [308-B-F]
      5. The recovery of poppy husk was made from the
  bags carried by the appellant, so the submission that
E there was violation of the provisions of Section 50 is
  legally untenable. [Para 12) [308-G)
           State of Haryana v. Maniram, 2008(8) SCC 292, relied
     on.
F.       6. The plea as regards delay in sending the samples
   is untenable in law. In the present case the contraband
   goods were recovered from the possession of the
   appellant on 19.02.1998 and the same were sent to the
   chemical examiner for chemical examination on
   23.02.1998, the aforesaid delay has no consequence for
,G the fact that the recovery of the said samp Ie from the
   possession of the appellant stands proved and
   established by cogent and reliable evidence led in the
   trial. Therefore, it cannot be said that there was any delay

H                                                                 -
        BALBIR KAUR v. STATE OF PUNJAB                  301


in sending the said sample for examination. [Para 13]          A
[308-F-G]
    Hardip singh vs. State of Punjab (2008) 8 SCC 557,
relied on.
     7. As regards examination of no independent witness,      B
there was only one independent witness at the time of
recovery of the contraband goods, who was won over by
the defence. It is established from the facts that the said
independent witness was examined by the defence as
her witness in the trial. It is not disclosed that any other   c
independent person was present at the time of search
and at the time of recovery ofthe contraband goods, and
therefore, it cannot be said that the search and recovery
are in any manner vitiated. [Para 13] [310-E-G]
                    Case Law Reference:                        D
    1999 (6) sec 112         Referred to          Para 8·
    (2002) 2 sec 419         Referred to          Para 8
    (2004) 3 sec 582         Referred to          Para 8
                                                               E
    (2008) 8 sec 292         Referred to          Para 8
    (2008) 8 sec 557         Referred to    Paras 8 and 13
    (2003) 1 sec 465         Relied on.           Para 9
    2008(8) sec 292          Relied on.           Para 12      F
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2108 of 2008.
    From the Judgment & Order dated 15.5.2008 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.     G
228-SB of 1999.
      Kamini Jaiswal, Shomila Bakshiand Abhimanu Shreshtha
for the Appellants.
    Kuldip Singh, R.K. Pandey and T.P. Mishra for the          H
    302       SUPREME COURT REPORTS               [2009] 10 S.C.R.


A Respondents.
          The Judgment of the Court was delivered by
       DR. MUKUNDAKAM SHARMA, J. 1. This appeal is
  directed against the judgment and order passed by the High
B Court of Punjab and Harya.1< at Chandigarh on 15.05.2008
  whereby and whereunder the 1iigh Court upheld the order of
  conviction passed against the appellant herein for the offence
  punishable under Section 15 of the Narcotic Drugs and
  Psychotropic Substances Act, 1985 (hereinafter referred to as
c 'the NDPS Act') and sentenced her to undergo rigorous
  imprisonment for a period of ten years, and to pay a fine of Rs.
  1 lac, and in default of payment of the same to undergo rigorous
  imprisonment for another period of two years, for having found
  in possession of 2 bags containing 61 Kgs. of poppy husk,
D without any permit or licence.
         2. The facts stated in brief are that on 19.12.1988, Sub
    Inspector Uttam Singh along with ASI Kasturi Lal and other
    police officials, was going from village Shambu to Village
    Tepla, Rajgarh and Ram Nagar Sainia, for patrol duty and when
E   the police party reached near the turning of Village Darian, the
    appellant was found sitting on two bags. It is alleged that on
    seeing the police party, the appellant turned her face towards
    her village. Due to the conduct and behaviour of the appellant
    and on suspicion, Sub Inspector Uttam Singh asked her about
F   the contents of the bags. She replied by stating that the bags
    contained poppy husk. It was also alleged that in the meanwhile,
    Rajwant Pal Singh, an independent witness came there and he
    also joined the police party. It is alleged that then Sub Inspector
    Uttam Singh gave option to the accused whether she wanted
G   to be searched before the Gazetted Officer or Magistrate to
    which she replied that she wanted to be searched before a -
    Gazetted Officer and by a lady. Upon this Sub Inspector Uttam
    Singh sent wireless message to D.S.P. Harcharan Singh
    Bhullar and also requested for presence of a lady constable.
H   In the meanwhile, D.P.S. Harcharan Singh Bhullar alongwith
                     BALBIR KAUR v. STATE OF PUNJAB                      303
                      [DR. MUKUNDAKAM SHARMA, J.]
             Charanjit Kaur, a lady SPO came to the aforesaid place. DP.S.      A
     "'      Harcharan Singh Bhullar thereafter disclosed his identity and
            that of lady SPO to the appellant. Then SI Uttam Singh
            conducted the search and both the bags were found to contain
            poppy husk, and therefore, two samples of 250 gms each from
            both the bags were taken out as samples. The first bag              B
            contained 30 kg 500 gms whereas the second bag contained
            29 kgs. 500 gms of poppy husk. Sample parcels and the bags
      ...   were sealed and then after completing the necessary
            formalities the SI Uttam Singh arrested the accused and
            recorded the statement of the witnesses. SI Uttam Singh             c
            thereafter deposited the case property with the MHC Gurmail
            Singh and on receipt of the report of the Chemical Examiner
            and on completion of other necessary investigation formalities,
            charge sheet against the appellant was presented. The court
            framed charges against the appellant and the case was put
                                                                                D
     ~      down for trial of accused.
                  3. During trial, the prosecution examined a number of
             witnesses. The statement of the appellant was also recorded
             under Section 313 of the Criminal Procedure Code, 1973 (in
             short "the CrPC") wherein she denied the charges and stated        E
            that she was innocent. In her defence, Rajwant Pal Singh (OW-
             1) and Budh Kaur (DW-2) were examined. The trial court
            thereafter examined the records including the depositions of all
     ~--i   the witnesses and after examination of the records passed its
            Judgment and Order dated 20.02.1999 holding that the                F
            prosecution has been able to prove its case beyond reasonable
            doubt. The court held that on 19.02.1998 the appellant was
            found in possession of two bags containing 61 Kgs of poppy
            husk without any permit or licence. Consequently, the trial court
            held the appellant guiltY under Section 15 of the NDPS Act and      G
            passed an order of conviction. Thereafter, the trial court heard
            the appellant on the question of sentence. After hearing the
     """'   parties, the trial court sentenced the appellant to undergo
<I          minimum sentence of rigorous imprisonment for a period of ten
            years and to pay a fine of Rs. 1 lac under section 15 of the
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    304     SUPREME COURT REPORTS             [2009] 10 S.C.R.


A NDPS Act and in default thereof to undergo rigorous
  imprisonment for another period of two years.
        4. Being aggrieved by the aforesaid order, the appellant
  filed an appeal before the High Court of Punjab and Haryana
  challenging the aforesaid order of conviction and sentence. The
B High Court after hearing the parties passed the Judgment and
  Order on 15.05.2008 whereby the High Court upheld the
  Judgment and Order passed by the trial court after dismissing
  the appeal filed by the appellant herein.
c        5. Being aggrieved by the Judgment and Order passed
    by the High Court, the present appeal was filed by way of
    special leave.
        6. Ms. Kamini Jaiswal, learned counsel appearing for the
  appellant submitted that no case of conviction and sentence
D was made out on the basis of evidence on record. It was also
  submitted by her that the appellant was a lady of about 70 years
  and that there was some bias of the police officers against her
  as she had initiated certain proceedings against them in the
  past. It was further submitted that there was no independent
E witness examined by the prosecution and it had examined only
  official witnesses although independent witnesses were present
  at the time of occurrence, who, however, deposed against the
  prosecution and in favour of the appellant. She also submitted
  that at the time of search of the appellant - accused, there was   It -

F total non-compliance of Sections 52 and 57 of the NDPS Act
  inasmuch aslhe police officers did not inform her that she had
  a right to be searched in the presence of a Gazetted Officer
  and such a Gazetted Officer was made available only when the
  appellant her.self asked for the presence of such an officer. It
G was also submitted by her that there are material discrepancies
  in the statement of witnesses. There was also delay in sending
  samples as alleged recovery of poppy husk was made on
  19.02.1988 whereas the sample was deposited in the office
  of the Chemical Examiner on 23.02.1988 and the said delay
H have not been explained by the prosecution, and therefore, the
                           BALBIR KAUR v. STATE OF PUNJAB                      305
                            [DR. MUKUNDAKAM SHARMA, J.]

           ""     order of conviction and sentence is required to be set aside. It
                  was also submitted that the prosecution has failed to prove and
                                                                                      A

                  establish its case beyond reasonable doubt on the basis of the
                  evidence on record that the appellant was in conscious
                  possession of the contraband goods. It was submitted that the
                  appellant was found sitting on two bags containing poppy husk       B
                  and when she was asked as to what was contained therein she
                  told that the same contained poppy husk and therefore the only
           ..,,
                  allegation against her is that she was sitting on two bags on
                  an open road, from which it cannot be presumed that she was
                  in conscious possession of the contraband goods.                    c
                        7. With the able help and assistance of the counsel
                  appearing for the parties, we have examined the entire
                  evidence on record as also the relevant provisions of the Act.
                  The Gvidence, which has come on record, indicates that just
           .j     before her search, the appellant was found sitting on two bags      D
                  and that on seeing the police party the appellant turned her face
                  towards her village. When Sub Inspector- Uttam Singh asked
                  the appellant about the contents of the bags, she replied by
                  stating that the bags contained poppy husk. The said Sub
                  Inspector - Uttam Singh (PW-6) has categorically stated this        E
                  in his evidence. Not even a suggestion was put to him in the
                  cross examination in that regard. What actually was done was
'4
           -~     that when the said statement came on evidence the same
                  appears to have been objected to but there was no suggestion
                  given in the cross examination on the behalf of the appellant at    F
                  the time of examination of the said witness. In any case the said
                  two bags were carried by the appellant as stated by the said
                  witness, and upon search the same were found to contain poppy
                  husk.
                       8. Since recovery of poppy husk was made from the bags         G
              ~   carried by the appellant, therefore, the submission that there
     •..          was violation of the provisions of Sections 52 - 57 of the NDPS
                  Act is baseless and devoid of any merit. Reference in this regard
                  may be made to the decision of this Court in State of Punjab
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    306        SUPREME COURT REPORTS                [2009) 10 S.C.R.


A v. Baldev Singh, (1999) 6 SCC 172; Avtar Singh v. State of
  Punjab, (2002) 2 SCC 419; State of Punjab v. Balkar Singh,
  (2004) 3 SCC 582; Dilip v State of M. P.; State of Haryana
  v. Mai Ram, (2008) 8 SCC 292; and Hardip Singh v. State of
  Punjab, (2008) 8 SCC 557.
B     9. In Madan Lal v. State of H. P., (2003) 7 SCC 465, it
    was held by this Court that the issue with regard to conscious
    possession is to be determined on the fact situation of each
    case. The Court observed as follows in relevant paras::

c         "19. Whether there was conscious possession has to be
          determined with reference to the factual backdrop. The
          facts which can be culled out from the evidence on record
          are that all the accused persons were travelling in a vehicle
          and as noted by the trial court they were known to each
          other and it has not been explained or shown as to i1ow
D
          they travelled together from the same destination in a
          vehicle which was not a public vehicle.
          20. Section 20(b) makes possession of contraband articles
          an offence. Section 20 appears in Chapter IV of the Act
E         which relates to offences for possession of such articles.
          It is submitted that in order to make the possession illicit,
          there must be a conscious possession.
          21. It is highlighted that unless the possession was coupled
          with the requisite mental element i.e. conscious possession
F         and not mere custody without awareness of the nature of
          such possession, Section 20 is not attracted.
          22. The expression "possession" is a polymorphous term
          which assumes different colours in different contexts. It may
G         carry different meanings in contextually different
          backgrounds. It is impossible, as was observed in Supdt.
          & Remembrancer of Legal Affairs, W.B. v. Anil Kumar
          Bhunja4 to work out a completely logical and precise            ;   '
          definition of "possession" uniformally applicable to all
          situations in the context of all statutes.
H
                      BALBIR KAUR v. STATE OF PUNJAB                       307
                       [DR. MUKUNDAKAM SHARMA, J.]
      ..._        23. The word "conscious" means awareness about a                 A
                  particular fact. It is a state of mind which is deliberate or
...
                  intended.
                  24. As noted in Gunwant/a/ v. State of M.P. 5 possession
                  in a given case need not be physical possession but can
                  be constructive, having power and control over the article       B
                  in the case in question, while the person to whom physical
      ,,.         possession is given holds it subject to that power or control.
                  25. The word "possession" means the legal right to
                  possession (see Heath v. Drown6). In an interesting case         c
                  it was observed that where a person keeps his firearm in
                  his mother's flat which is safer than his own home, he must
                  be considered to be in possession of the same. (See
                  Sullivan v. Earl of Caithness7 .)

      •'
                 26. Once possession is established, the person who
                 claims that it was not a conscious possession has to
                                                                                   D

                 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 available in law. Similar is the position in          E
                 terms of Section 54 where also presumption is available
                 to be drawn from possession of illicit articles.
      ~           10. She was found sitting on the bags in the road and
             seeing the police party she behaved in a suspicious manner.
             Nothing has come on evidence to show that at that time any            F
             other person was present at the scene of occurrence. When
             she was asked about the contents in the bag she herself
             admitted that it contained poppy husk. Therefore, her
             possession of the contraband goods was conscious
             possession. So far as the submission with regard to alleged           G
             bias of the prosecution is concerned, we are of the view that
             no case of bias has been made out for the earlier proceedings
             which were initiated by the appellant herself by filing an
             application under section 438 CrPC for anticipatory bail.
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    308       SUPREME COURT REPORTS                 [2009] 10 S.C.R.


A   Another incident which is referred to and relied upon by the
    defence to show bias is that Sub Inspector Uttam Singh (PW-
    6) along with other police officials raided the appellant's
    residence but nothing incriminating was recovered from there.
    That itself does not make out a case of bias when she was
B   found in broad light having in possession two bags of poppy
    husk.

       11. In view of the concurrent findings of the trial court and
  as also the High Court holding that the appellant was in
  conscious possession of the said contraband goods, the
C allegation of non-disclosure of the purpose of search and the
  grounds of arrest to her are all of technical nature and without
  being any material force in them. The appellant herself knew
  that she was being searched for possession of contraband
  goods, and therefore, she had also sought for protection as
D provided under Section 52 and 57 of the NDPS Act. She was
  being searched and arrested on account of possession of
  contraband goods. The violation of the provisions of the NDPS
  Act was clearly known to her. The allegation that she herself
  asked for such protection instead of prosecution giving her the
E option to be searched before a Gazetted Officer, as required
  under the law, would not in any manner adversely affect her
  conviction and order of sentence passed by both the courts
  below. No prejudice could be shown by the appellant against
  the DSP, who was a Gazetted Officer and the lady officer
F present at the time of search.

        12. It is also to be noted at this stage that the recovery of
  poppy husk was made from the bags carried by the appellant,
  so the submission that there was violation of the provisions of
  Section 50 is legally untenable. This Court has recently in State
G of Haryana v. Maniram, (2008) 8 SCC 292 @ p. 295
  reiterating the well-settled legal position in this regard as follows:

          "14. So far as the applicability of Section 50 is concerned,
          the High Court's view is clearly indefensible. Section 50
          reads as follows:
H
             BALBIR KAUR v. STATE OF PUNJAB                      309
              [DR. MUKUNDAKAM SHARMA, J.]

         "50. Conditions under which search of persons shall be         A
         conducted.-(1) When any officer duly authorised under
         Section 42 is about to search any person under the
         provisions of Section 41, Section 42 or Section 43, he
         shall, if such person so requires, take such person without
         unnecessary delay to the nearest gazetted officer of any       B
         of the departments mentioned in Section 42 or to the
         nearest Magistrate.

         (2) If such requisition is made, the officer may detain the
         person until he can bring him before the gazetted officer
         or the Magistrate referred to in sub-section (1 ).             C
         (3) The gazetted officer or the Magistrate before whom

-        any such person is brought shall, if he sees no reasonable
         ground for search, forthwith discharge the person but
         otherwise shall direct that search be made.
                                                                        D
        (4) No female shall pe searched by anyone excepting a
        female."
        A bare reading of Section 50 shows that it only applies in
        case of personal search of a person. It does not extend
        to search of a vehicle or a container or a bag, or              E
        premises. (See Kalema Tumba v. State of
        Maharashtra1, State of Punjab v. Baldev Singh2 and
        Gurbax Singh v. State of Haryana3.)
        15. The language of Section 50 is implicitly (sic explicitly)   F
        clear that the search has to be in relation to a person as
        contrasted to search of premises, vehicles or articles. This
        position was settled beyond doubt by the Constitution
        Bench in Baldev Singh case2. A similar question was
        examined in Madan Lal v. State of H.P.4                         G
        16. Above being the position, the finding regarding non-
    compliance with Section 50 of the Act is also without any
    substance."
        13. As far as delay in sending the samples are concerned,
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    310      SUPREME COURT REPORTS                 [2009] 10 S.C.R.


A we find the said contention untenable in law. Reference in this
                                                                           Al
  regard may be made to the decision of this Court in Hardip
  Singh case (supra), wherein there was a gap of 40 days
  between seizure and sending the sample to chemical examiner.
  Despite the said fact the Court held that in view of cogent
B evidence that opium was seized from the appellant and the
  seals put on the sample were intact till it was handed over to
  the chemical examiner, delay itself is not fatal to prosecution
  case. In the present appeal, the contraband goods were
  recovered from the possession of the appellant on 19.02.1998
c and the same were ~ent to the chemical examiner for chemical
  examination on 23.02.1998, the aforesaid delay has no
  consequence for the fact that the recovery of the said sample
  from the possession of the appellant stands proved and
  established by cogent and reliable evidence led in the trial.
  Therefore, it cannot be said that there was any delay in sending
                                                                                -
D
  the said sample for examination. Since the appellant was sitting          ~
  on the two bags and her conduct on turning her face towards
  the village on seeing the police party and thereafter telling the
  police party on asking by the police that the said bags
  contained poppy husk clearly establishes that she was in
E conscious possession of the contraband goods. So far as
  examination of no independent witness is concerned, we find
  that there was only one independent witness at the time of
  recovery of the contraband goods, who was won over by the
  defence. It is established from the facts that the said
F independent witness was examined by the defence as her
                                                                           ...
  witness in the trial. It is not disclosed that any other independent
  person was present at the time of search and at the time of
  recovery of the contraband goods, and therefore, it cannot be
  said that the search and recovery are in any manner vitiated.
G
        14. In this view of the matter, we find no merit in this appeal.
    Accordingly, the appeal is dismissed.                                  4:   -
    K.K.T.                                        Appeal dismissed.

H