DEHAL SINGHversusSTATE OF HIMACHAL PRADESH

                      [2010] 10 S.C.R. 598


A                          DEHAL SINGH
                                   V.
                STATE OF HIMACHAL PRADESH
              (Criminal appeal no. 1215 of 2005 etc.)
                         AUGUST 31, 2010
8
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.]

        Narcotic Drugs and Psychotropic Substances Act, 1985:
c
          s. 20 - Accused found in possession of large quantity of
    'charas' - Conviction - Plea that 15 gm difference in weight
    of samples when weighed in Laboratory, cast a doubt on
    credibility of prosecution case - HELD: In view of the fact that
    the weighing scale and weight of a grocery shop were used
0
    by the authorised officer and in the Laboratory weight of the
    contraband was measured with precision scale, the small
    difference in weight loses its significance.

      ss. 20, 35 and 54 - 'Conscious possession' -
E Presumption - Burden to rebut the presumption - HELD:
  Court can presume conscious possession - It is for the
  person who claims to establish that he was not in conscious
  possession.

F      s. 50 - On search of a car, huge quantity of 'charas'
  concealed in it recovered - Plea that accused were not
  apprised of their right of option to be searched before a
  gazetted officer or the nearest Magistrate - HELD: Provisions
  of s.50 are attracted in case of search of a person other than
G a vehicle etc. - Since recovery was made from vehicle,
  provisions of s.50 were not required to be complied with.

        s. 50 - Option to be searched before a gazetted officer or
    the nearest Magistrate - HELD: Option to choose is given to

H                                598
 DEHAL SINGH v. STATE OF HIMACHAL PRADESH 599


an accused when he has a right to choose - It is                 A
communication of right either to accept or reject - On-facts,
though provision of s.50 was not attracted, accused were
apprised of their right and, therefore, the provision. was
complied with.                                            ·· '
                                                                 8
    Code of Criminal Procedure, 1973:

     ss. 313 and 315 - Statem·ent uls 313 - Nature and
purpose of - Explained - HELD: Plea of accused that he had
taken lift in the vehicle, from which a huge quantity of 'charas'
was recovered, cannot be accepted only on the basis ofhis C
statement uls 313, when he neither got examined himself ul
s 315 nor any other person in defence - Evidence Act, 1872
-s.3.

    On receipt of a secret information, PW-16 (Station           D
House Officer) intercepted a car on a high way in
Himachal Pradesh, occupied by the driver (A-1) and
another person, a resident of Goa, sitting by the side of
the driver. The car was searched with the help of a
mechanic (PW-3) and 27 kg and 800 gm of 'charas'
                                                                 E
concealed between the shields and .the doors of the car,
was recovered. The samples of the contraband were
confirmed by the chemical examiner as 'charas'. The trial
court convicted the two accused u/s 20 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 and
sentenced them to 10 years RI and a fine of Rs. 1 lakh           F
each. The High Court dismissed their appeals.

    In the instant appeals filed by the accused, it was
contended that according to the prosecution, samples of
50 gm each were taken and sent to the Forensic Science           G
Laboratory, but net weight of the samples received in the
laboratory was 65.5606 gm each; and discrepancy in the
weight cast a serious doubt on the credibility of the
recovery     proceedings       and,   resultantly,     on
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    600      SUPREME COURT REPORTS            [2010] 10 S.C.R.


A   trustworthiness of the prosecution case; that though
    option was given to the accused to be searched before
    a Gazetted Officer or the nearest Magistrate, but they were
    not apprised of their right in this regard and, therefore,
    the requirement of s.50 of the Act was not fulfilled. As
B   regards A-2, referring to his statement u/s 313 CrPC, it
    was additionally contended that he only took a lift in the
    car and, as such, could not be held to be in conscious
    possession of the contraband.

          Dismissing the appeals, the Court
c
       HELD: 1. The difference of 15 gm. in weight, in the
  facts and circumstances of the instant case, is not of
  much" significance. Sample was taken by a common
  weighing scale and weight found in a grocery shop,
D whereas the weight in the laboratory was recorded with
  precision scale. This would be evident from the fact that
  the weight of the sample recorded in the laboratory was
  65.5606 gm. It is common knowledge that weighing scale
  and weight kept in the grocery-shop are not of such
E standard which can weigh articles with great accuracy.
  In this background, small difference in weight loses its
  significance, when one finds no infirmity in other part of
  the prosecution story. [para 11] (607 -E-H; 608-A]

        Rajesh Jagdamba A vasthi vs. State of Goa 2005(9) sec
F   773; Dilip and another vs. State of M.P., 2006 (9) Suppl.
    SCR 390 = 2007 (1) SCC 45 - distinguished

       Noor Aga vs. State of Punjab and another 2008 (10)
              =
    SCR 379 2008(16) SCC 417 - referred to.
G
        2.1 From a plain reading of the provision of s.50 of
    the Narcotic Drugs and Psychotropic Substances Act
    1985, it is evident that it comes into play only when search
    of a person other than a vehicle etc. is taken. In the
H
DEHAL 'SINGH v. STATE OF HIMACHAL PRADESH 601


instant case, the vehicle was searched and 'Charas' was       A
recovered from the vehicle and persons of the appellants
were not searched. As the recovery has been from the
vehicle, the provision of s.50 of the Act was not required
to be complied with. It is significant to note that the
appellants were not searched at the place where the           B
vehicle was intercepted and searched, but after they
were arrested, and brought to the Police Station, their
search was made to find out the articles possessed by
them before lodging them in lock-up. [para 16 and 18]
[611-G-H; 612-A-B; 611-B-C]                                   c
    2.2 Option to choose is given to an accused when
he has right to choose. It is communication of right either
to accept or reject. In the instant case, the vehicle was
searched at the first instance and, therefore, there was
no requirement at all to inform the appellants their right    D
to be searched in the presence of a Gazetted Officer or a
Magistrate. Not only this, by giving the option, the
appellants were apprised of their right and, therefore, the
provision of s.50 of the Act was fully complied with. [para
18-19] [611-H; 612-A-B-E]                                     E

     3.1 To bring the offence within the mischief of s.20
of the Act, possession has to be conscious possession.
Section 35 of the Act recognizes that once possession
is established, the court can presume that the accused        F
had a culpable mental state, meaning thereby, conscious
possession. Further, the person who claims that he was
not in conscious possession has to establish it.
Presumption of conscious possession is further available
u/s 54 of the Act, which provides that accused may be         G
presumed to have committed the offence unless he
satisfactorily accounts for the possession of contraband.
In the instant case, both the appellants have been found
travelling in the car from which 'Charas' was recovered
and, therefore, they were in possession thereof. They
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    602      SUPREME COURT REPORTS               [2010] 10 S.C.R.


A   knew each other. They were not travelling in a public
    transport vehicle. Distinction has to be made between
    accused travelling by public transport vehicle and private
    vehicle. [para 22] [613-G-H; 614-A-B; 613~F-G]

       3.2 Statement u/s 313 CrPC is taken into
B
  consideration to appreciate the truthfullness or otherwise
  of the case of prosecution and it is not an evidence. The
  statements u/s 313 CrPC are recorded without
  administering oath and the accused cannot be cross-
  exam ined with reference to those statements and,
C therefore, said statement cannot be treated as evidence
  within the meaning of s. 3 of the Evidence Act. However,
  when an accused appears as witness in defence to
  disproove the charge, his version can be tested by his
  cross-examination. The appellants have not chosen to
D examine any other witness to support the plea of A-2
  taking lift in the car and in case none was available they
  were free to examine themselves in terms of s. 315 CrPC
  wt.ich, inter alia, provides that a person accused of an
  offence is a competent witness of the defence and may
E give evidence on oath in disproof of the charges.
  Therefore, the plea of A-2 that he had taken lift in the car
  is not fit to be accepted only on the basis of the
  statements of the appellants u/s 313 CrPC. [para 21] [613-
  A-E]
F
          Madan Lal and another vs. State of H.P., 2003 (2) Suppl.
    SCR 716 = 2003 (7) sec 465 - relied on.
                          Case Law Reference:
G    2008 (10) SCR 379             referred to          para 9
     2005(9) sec 773               distinguished        para 10
     2006 (9) Suppl. SCR 390 distinguished              para 15
     2003 (2) Suppl. SCR 716 relied on                  para 22
H
  DEHAL SINGH v. STATE OF HIMACHAL PRADESH 603


     CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal              A
 No. 1215 of 2005.

      From the Judgment & Order dated 18.10.2004 of the High
 Court of Himachal Pradesh at Shimla in Crl. Appeal No. 603
 of 2003.                                                            B
                                 WITH

 Crl. A. No. 1216 of 2005.

      P.S. Mishra, Nagendra Rai, J.S. Bhasin, D.K. Pandey,           C
 Upendra Mishra, T. Mahipal, Shantanu Sagar, Smarhar Singh,
 J.S. Bhasin, S. Chandra Shekhar, Naresh K. Sharma for the
 appearing parties.

      The Judgment of the Court was delivered by
                                                                     D
      CHANDRAMAULI KR. PRASAD, J. 1. Both the appeals
 arise out of the same judgment and as such they were heard
 together and are being disposed of by this common judgment.

       2. The case unfolded by the prosecution and accepted by
                                                                     E
  both the Courts i.e. trial and appellate Court is that on 18th
  October, 2002 at 9.20 A.M. PW.16, Brijesh Sood, Station
· House Officer, Police Station Sundernagar along with PW.8,
  Madan Lal, Assistant Sub-Inspector of Police and other Police
  personnel were present for a routine-check at Lalit Chowk at
  Sundernagar in the District of Mandi. Brijesh Sood received a      F
  secret information that a car bearing Registration No.HP-34-
  7700 is coming from Mandi side in which two persons are
  carrying huge quantity of 'Charas'. The aforesaid information
  was reduced into writing and intimation to the said effect was
  sent to the Additional Superintendent of Police, Mandi. At about   G
  10 A.M., one Maruti Esteem car bearing Registration No.HP-
  34-7700 came from Mandi side which was stopped by PW.16,
  Brijesh Sood and he found two persons sitting in the car,
  including the driver. Brijesh Sood made enquiry from the person
  who was driving the car and he disclosed his name as Dehal         H
    604       SUPREME COURT REPORTS                (2010] 10 S.C.R.


A   Singh (appellant in Criminal Appeal No.1215 of 2005) and the
    other person sitting on the front seat by the side of the driver-
    seat, disclosed his name as Dinesh Kumar, resident of Goa
    (appellant in Criminal Appeal No.1216 of 2005). Brijesh Sood
    gave option in writing to the accused persons, whether they
B   want to give personal search or search of the vehicle before a
    Magistrate or a Gazetted Officer. Both the appellants gave their
    consent for being searched by him. Accordingly PW.16, Brijesh
    Sood searched the car and luggage lying inside the car but
    nothing incriminating was found either in the car or the luggage.
c   A mechanic was called by PW.3, Churamani, who opened the
    shields of the windows/doors when packets of brown colour
    were found concealed between the shields and doors wrapped
    with black and red adhesive tape. On opening the packets,
    'Charas' in the shape of stick and chappatis was detected.
    Churamani was asked by PW .16, Brijesh Sood to bring
0
    weighing scale and weight. He brought the weighing scale from
    the grocery shop of PW.5, Ram Lal and on weightment 27 Kg.
    800 gms. of Charas was found. Two samples of 50 grams each
    were taken out after mixing the entire charas. It was duly sealed.

E      3. Appellant, Dehal Singh produced the registration
  certificate along with driving licence and other papers
  concerning the vehicle. The appellants· and seized Charas
  along with samples were taken to the Police Station where the
  personal search of the appellants was conducted. The samples
F of the Charas and other articles recovered from the personal
  search of the appellants were deposited with PW.8, Additional
  Malkhana Head Constable, Rajinder Kumar for safe custody.
  First Information Report was thereafter drawn and a special
  report sent to the Superintendent of Police. PW.8, Rajinder
G Kumar sent one parcel of the sample to the Chemical Examiner,
  who in his report opined that it contained Charas. After usual
  investigation charge-sheet was submitted against the two
  appellants and ultimately they were put on trial. They pleaded
  not guilty and claimed to be tried.
H         4. The prosecution in support of its case has all together
 DEHAL SINGH v. STATE OF HIMACHAL PRADESH 605
       [CHANDRAMAULI KR. PRASAD, J.]
examined 16 witnesses besides various other documentary             A
evidence were also brought on record. In their statements, under
Section 313 of the Code of Criminal Procedure appellants
pleaded false implication and both of them have stated that the
appellant, Dinesh Kumar had taken lift in the car from Kullu to
Delhi.                                                              B
                                                                         "
     5. On appreciation of the evidence the trial court held both
the appellants guilty under Section 20 of Narcotic Drugs and
Psychotropic Substances Act, 1985 and sentenced them to
undergo rigorous imprisonment for a period of 10 years each
and to pay a fine of Rs.1,00,000/- each and in default of
                                                                    c
payment of fine to suffer rigorous imprisonment for a further
period of four years,

    6. Appellants preferred separate appeals against the
judgment and order of conviction and sentence and the High          [,
Court of Himachal Pradesh by its common judgment dated 18th
October, 2004 passed in Criminal Appeal Nos. 600 and 603
of 2003 dismissed both the appeals.

     7. Both the appellants assail the aforesaid order by grant
                                                                    E
of special leave to appeal.

     8. Mr. Nagendra Rai, learned Senior Counsel appears on
behalf of the appellant in Criminal Appeal No.1215 of 2005,
whereas appellant in Criminal Appeal No.1216 of 2005 is
represented by Mr. P.S. Mishra, learned Senior Counsel.             F

     9. Mr. Rai submits that according to the prosecution two
samples of 50 gms. each were taken and sent to the Forensic
Science Laboratory for examination, but net weight of the
sample received in the laboratory was 65.5606 gms. This             G
discrepancy in weight of sample, in the submission of Mr. Rai,
casts serious doubt to the credibility of the prosecution case
and this is enough to reject the case of the prosecution.
Credibility of the recovery proceedings, in his submission is
eroded if the quantity found by the analyst is more than the
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      606      . SUPREME COURT REPORTS                [2010] 10 S.C.R.

· A   quantity sealed and sent to him. He points out that taking into
      consideration the discrepancy in the weight of the samples at
      the time when it was taken and in the laboratory, this Court in
      the case of Noor Aga vs. State of Punjab and another,
      2008( 16) sec 417, held the case of the prosecution to be not
 B    trustworthy. Our attention has been drawn to paragraph 97 of
      the judgment which reads as follows:

            "97. The fate of these samples is not disputed. Although
            two of them were kept in the malkhana along with the bulk,
            but were not produced. No explanation has been offered
 c          in this regard. So far as the third sample, which allegedly
            was sent to the Central Forensic Science Laboratory, New
            Delhi is concerned, it stands admitted that the
            discrepancies in the documentary evidence available have
            appeared before the court, namely:
 D
                  (i) While original weight of the sample was 5 gm,
            as evidenced by Exts. PB, PC and the letter
            accompanying Ext. PH, the weight of the sample in the
            laboratory was recorded as 8. 7 gm.
 E
                  (ii) Initially, the colour of the sample as recorded was
            brown, but as per the chemical-examination report, the
            colour of powder was recorded as white."

                                                       (underlining ours)
 F
          10. Reliance has also been placed on a decision of this
      Court in the case of Rajesh Jagdamba Avasthi vs. State of
      Goa, 2005(9) SCC 773, and our attention has been drawn to
      paragraph 14 of the judgment which reads as follows:
 G          "14. We do not find it possible to uphold this finding of the
            High Court. The appellant was charged of having been
            found in possession of charas weighing 180.70 gm. The
            charas recovered from him was packed and sealed in two
            envelopes. When the said envelopes were opened in the
 H          laboratory by the Junior Scientific Officer, PW 1, he found
 DEHAL SINGH v. STATE OF HIMACHAL PRADESH 607
       ~HANDRAMAULI KR. PRASAD, J.]

    the quantity to be different. While in one envelope the         A
    difference was only minimal, in the other the difference in
    weight was significant. The High Court itself found that it
    could not be described as a mere minor discrepancy.
    Learned counsel rightly submitted before us that the High
    Court was not justified in upholding the conviction of the      B
    appellant on the basis of what was recovered only from
    envelope A ignoring the quantity of charas found in
    envelope B. This is because there was only one search
    and seizure, and whatever was recovered from the
    appellant was packed in two envelopes. The credibility of       c
    the recovery proceeding is considerably eroded if it is
    found that the quantity actually found by PW 1 was less than
    the quantity sealed and sent to him. As he rightly
    emphasised, the question was not how much was seized,
    but whether there was an actual seizure, and whether what       D
    was seized was really sent for chemical analysis to PW
    1. The prosecution has not been able to explain this
    discrepancy and, therefore, it renders the case of the
    prosecution doubtful."

     11. We do not find any substance in the submission of Mr.      E
Rai and the decisions relied on are clearly distinguishable. The
vehicle was intercepted and searched on a highway and it has
come in the evidence of PW.16, Brijesh Sood that he had sent
PW.3, Churamani to bring weighing scale and weight from the
grocery shop of PW.5, Ram Lal. From the evidence of PW.3,           F
Churamani and PW.5, Ram tal, the grocery shop owner it is
evident that the weighing scale and the weight came from the
grocery shop. It is common knowledge that weighing scale and
weight kept in the grocery-shop are not of such standard which
can weigh articles with great accuracy and therefore difference     G
of 15 gms. in weight, in the facts and circumstances of this
case, is not of much significance. Sample was taken by a
common weighing scale and weight found in a grocery shop,
whereas the weight in the laboratory recorded with precision
scale. This would be evident from the fact that the weight of the   H
    608        SUPREME COURT REPORTS                [2010] 10 S.C.R.


A   sample recorded in the laboratory was 65.5606 gms. In this
    background, small difference in weight loses its significance,
    when one finds no infirmity in other part of the prosecution story.

         12. Now referring to the decision of this Court in the case
8   of Noor Aga (supra) the difference in the weight at the time of
    taking samples and at the laboratory was considered material
    as in the said case the sample was taken by the Custom
    Officials at the Airport and the Court came to the conclusion
    that weight was taken from a precision scale. Further it is not
C   only the discrepancy in the weight which led this Court to reject
    the case of the prosecution but had taken into consideration
    several other discrepancies to come to the said conclusion.
    This shall be evident from paragraph 98 of the judgment, which
    reads as follows:

D         "98. We are not oblivious of the fact that a slight difference
          in the weight of the sample may not be held to be so crucial
          as to disregard the entire prosecution case as ordinarily
          an officer in a public place would not be carrying a good
          scale with him. Here, however, the scenario is different.
E         The place of seizure was an airport. The officers carrying
          out the search and seizure were from the Customs
          Department. They must be having good scales with them
          as a marginal increase or decrease of quantity of imported
          articles whether contraband or otherwise may make a
F         huge difference under the Customs Act."

         13. Further in the said case it has been observed that
    discrepancy in weight individually may not be fatal. It is apt to
    reproduce paragraph 119 (3) and (4) of the said judgment in
    this regard:
G
          119. Our aforementioned findings may be summarised as
          follows:

          1.    )()()(                  )()()(            )()()(   )()()(


H
DEHAL SINGH v. STATE OF HIMACHAL PRADESH 609
      [CHANDRAMAULI KR. PRASAD, J.]

    2.    )()()(                 )()()(           )()()(   )()()(   A

           3. There are a large number of discrepancies in the
    treatment and disposal of the physical evidence. There are
    contradictions in the statements of official witnesses. Non-
    examination of independent witnesses and the nature of          8
    confession and the circumstances of the recording of such
    confession do not lead to the conclusion of the appellant's
    guilt.

           4. Finding on the discrepancies, although if
    individually examined, may not be fatal to the case of the C
    prosecution but if cumulative view of the scenario is taken,
    the prosecution's case must be held to be lacking in
    credibility.

    5.    )()()(                 )()()(           )()()(   )()()(
                                                                    D
    6.    )()()(                 )()()(


     14. Now, we proceed to consider the decision of this Court
in the case of Rajesh Jagdamba Awasthi (supra) relied on by
the appellants and find the same clearly distinguishable. In the    E
said case on fact the Court found the recovery proceeding to
be suspicious and further there was every possibility of the
seized substance tampered. Those infirmities led this Court to
doubt the truthfulness of the prosecution case. This is evident
from paragraph 15 of the judgment which reads as follows:           F

          "15. This is not all. We find from the evidence of PW
    4 that he had taken the seal from PSI Thorat and after
    preparing the seizure report, panchnama, etc. he carried
    both the packets to the police station and handed over the      G
    packets as well as the seal to Inspector Yadav. According
    to him on the next day, he took back the packets from the
    police station and sent them to PW 3 Manohar Joshi,
    Scientific Assistant in the Crime Branch, who forwarded
    the same to PW 1 for chemical analysis. In these
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    610      SUPREME COURT REPORTS                [2010] 10 S.C.R.


A         circumstances, there is justification for the argument that
          since the seal as well as the packets were in the custody
          of the same person, there was every possibility of the
          seized substance being tampered with, and that is the only
          hypothesis on which the discrepancy in weight can be
B         explained. The least that can be said in the facts of the
          case is that there is serious doubt about the truthfulness
          of the prosecution case."

        15. Mr. Rai, then submits that though option was given to
C the appellant to be searched before a Gazetted Officer or
  nearest Magistrate but they were not apprised of their right to
  be searched in their presence and hence the .procedure
  followed does not fulfill the requirement of Section 50 of
  Narcotic Drugs and Psychotropic Substances Act, 1985
  (hereinafter referred to as the "Act"'). He emphasized that
D accused is not to be given an option to be searched in the
  presence of the Gazetted Officer or Magistrate but to be
  apprised of his right to be searched in their presence.
  According to him conveying option and apprising the right are
  distinct. According to him, this does not satisfy the mandate of
E Section 50 of the Act and once its violation is established the
  search and seizure is rendered illegal and on this ground alone
  appellants' conviction is vitiated. He points out that the Charas
  was not recovered from the possession of the appellants but
  from the vehicle, but nonetheless appellants were also searched
F and thus it was obligatory to follow the provisions of Section
  50 of the Act. He finds support to the aforesaid submission from
  the decision of this Court in the case of Dilip and another vs.
  State of M.P., 2007 (1) sec 450, and our attention has been
  drawn to paragraph 16 of the judgment which reads as follows:
G
        "16.ln this case, the provisions of Section 50 might not
        have been required to be complied with so far as the
        search of scooter is concerned, but keeping in view the
        fact that the person of the appellants was also searched,
H
 DEHAL SINGH v. STATE OF HIMACHAL PRADESH                      611
       [CHANDRAMAULI KR. PRASAD, J.]

     it was obligatory on the part of PW 10 to comply with the        A
     said provisions. It was not done."

      16. This submission of Mr. Rai does not commend us at
all. In the present case the vehicle was searched and the
Charas was recovered from the vehicle and persons of the              B
appellants were not searched. As the recovery has been from
the vehicle the provision of Section 50 of the Act, in our opinion,
was not required to be complied with. It is relevant here to
mention that appellants were not searched at the place where
the vehicle was intercepted and searched but after they were
arrested, and brought to the Police Station, their search was         C
made to find out the articles possessed by them before lodging
them in lock-up.

    17. Not only this, the prosecution has also claimed
compliance of Section 50 of the Act. Section 50(1) of the Act,        D
which is relevant for the purpose, reads as follows:-

     50. Conditions under which search of persons shall
     be conducted.(1) When any officer duly authorised under
     Section 42 is about to search any person under the
                                                                      E
     provisions of Section 42 or Section 43, he shall, if such
     person as requires, take such person without unnecessary
     delay to the nearest Gazetted Officer of any of the
     departments mentioned in Section 42 or to the nearest
     Magistrate.
                                                                      F
     )()()(   )()()(               )()()(            )()()(


      18. From a plain reading of the aforesaid provision it is
evident that it comes into play only when search of a person
other than vehicle etc. is taken. Further the authorized officer      G
is to apprise person about to be searched to be taken to the
nearest Gazetted Officer or to the Magistrate, if the person
about to be searched so requires. Such an option was given
to the appellants and, in our opinion, it is nothing but apprising
them of their right. Option to choose is given to an accused
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    612       SUPREME COURT REPORTS                [2010] 10 S.C.R.


A when he has right to choose. It is communication of right either
  to accept or reject. Therefore, in our opinion giving the
  appellants option to be searched satisfied the requirement of
  Section 50 of the Act.--ln the case of Dilip (supra) relied on by
  the appellants the question which fell for consideration was as
B to whether Section 50 of the Act if at all required to be complied
  with and in the background of the fact that before search and
  seizure of the contraband from the scooter, personal search of
  the ·accused was carried out, this Court held that it was so
  required. This would be evident from paragraph 12 of the
c judgment which reads as follows:
          "12.Before seizure of the contraband from the scooter,
          personal search of the appellants had been carried out
          and, admittedly, even at that time the provisions of Section
          50 of the Act, although required in law, had not been
0         complied with."

         19. In the present case, as observed earlier, the vehicle
    was searched at the first instance and therefore there was no
    requirement at all to inform the appellants their right to be
E   searched in the presence of the Gazetted Officer or Magistrate.
    Not only this, we have found that by giving option the appellants
    were apprised of their right and therefore the provision of
    Section 50 of the Act was fully complied with.

       20. Mr. P.S. Mishra while adopting the submission
F advanced by Mr. Rai, has made an additional submission. He
  contends that appellant Dinesh Kumar cannot be held to be in
  conscious possession of the Charas as he had taken lift in the
  vehicle and he was not aware of the fact that Charas was being
  transported in the vehicle. In this connection he had referred to
G the statements of the appellants recorded under Section 313
  of the Code of Criminal Procedure. Both of them had
  specifically pleaded that this appellant had taken lift in the car.
  According to Mr. Mishra if this explanation is accepted, this
  appellant deserves to be acquitted.
H
DEHAL SINGH v. STATE OF HIMACHAL PRADESH                     613
      [CHANDRAMAULI KR. PRASAD, J.]
      21. We do not find any substance in this submission of Mr.     A
Mishra. Statement under Section 313 of the Code of Criminal
Procedure is taken into consideration to appreciate the
truthfullness or otherwise of the case of prosecution and it is
not an evidence. Statement of an accused under Section 313
of -tlie Code of Criminal Procedure is recorded without              B
administering oath and, therefore, said statement cannot be
treated as evidence within the meaning of Section 3 of the
Evidence Act. Appellants have not chosen to examine any other
witness to support this plea and in case none was available
they were free to examine themselves in terms of Section 315         c
of the Code of Criminal Procedure whi~h; inter alia, provides
that a person accused of an offence is a competent witness of
the defence and may give evidence on oath in disproof of the
charges. There is reason not to treat the statement under
Section 313 of the Code of Criminal Procedure as evidence            D
as the accused cannot be cross-examined, with reference to
tho_se statements. However, when an accused appears as
witness in defence to disproof the charge, his version can be
tested by his cross-examination. Therefore, in our opinion the
plea of the appellant Dinesh Kumar that hehad taken lift in the
car is not fit to be accepted only on the bJsis of the statements    E
of the appellants under Section 313 of the Code of Criminal
 Procedure.

      22. Both the appellants have been found travelling in the
car from which Charas was recovered and, therefore, they were        F
in possession thereof. They were knowing each other. They
were not travelling in a public transport vehicle. Distinction has
to be made- between accused travelling by public transport
vehicle and private vehicle. 1t-needs no emphasis that to bring
the offence within the mischief of Section 20 of the Act             G
possession has to be conscious possession. SecUon-35 of the
Act recognizes that once possession is established the Court
can presume that the accused had a culpable mental state,
meaning thereby conscious possession. Further the person
who claims that he was not in conscious possession has to            H
                                                                  i'
        614       SUPREME COURT REPORTS               [2010) 10 S.C.R.


    A   establish it. Presumption of conscious possession is fUrther
        available under Section 54 of the Act, which provides that
        accused may be presumed to have committed the offence
        unless he accounts for satisfactorily the possession of
        contraband. The view which we have taken finds support from
    B   a judgment of this Court in the case of Madan Lal and another
!
/       VS. State of H.P., 2003 (7) SCC 465, wherein it has been held
        as follows:

               "26. Once possession is established, the person who
               claims that it was not a conscious possession has to
    c          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
               terms of Section 54 where also presumption is available
    D          to be drawn from possession of illicit articles.

               27. In the factual scenario of the present case, not only
               possession but conscious possession has been
               established. It has not been shown by the accused-
    E          appellants that the possession was not conscious in the
               logical background of Sections 35 and 54 of the Act."

             23. Thus we do not find any merit in these appeals and
        they are dismissed accordingly.

        R.P.                                       Appeals dismissed.