STATE OF PUNJABversusLAKHWINDER SINGH & ANR.

                        [2010] 4 S.C.R. 92


A                      STATE OF PUNJAB
                                 v.
                   LAKHWINDER SINGH & ANR.
                 (Criminal Appeal No. 32 of 2009)
                          APRIL 5, 2010
B
    [DR. MUKUNDAKAM SHARMA AND A.K. PATNAIK, JJ.]

       Narcotic Drugs and Psychotropic Substances Act, 1985
  - s. 15 - Punishment for contravention in relation to poppy
C st~aw - Respondents found in possession of 35 bags of poppy
  husk - Conviction u/s. 15 by trial court - Set aside by High
  Court - On appeal, held: Evidence clearly established that
  respondents were in conscious possession of contraband
  goods - Failure of defence to prove that seizure and seal put
o in the samples were ever tampered with before it was
  examined by Chemical Examiner - Delay of seven days in
  sending samples to the examinernot fatal since the seal was
  found intact at the time of examination - Thus, order of trial
  court restored.
E       The question which arose for consideration in this
    appeal was whether the High Court was justified in
    acquitting the respondents of the charge uls. 15 of the
    Narcotic Drugs and Psychotropic Substances Act, 1985
    by setting aside the order of conviction and sentence
F   passed by the trial court.

        Disposing of the appeal, the Court

       HELD: 1. Section 15 of the Narcotic Drugs and
G Psychotropic Substances Act, 1985 makes possession
  of contraband articles an offence. Section 15 in Chapter
  IV of the Act relates to the offence of possession of poppy
  straw. [Para 11] [100-A-B]


H                               92
 STATE OF PUNJAB v. LAKHWINDER SINGH & ANR.            93


     2.1. Evidence was led by the prosecution to establish   A
that the respondents were found sitting on the said bags
of poppy husk. It was also stated by the Sub-Inspector
as also the Assistant Sub-Inspector that the presence of
the accused respondents at such an early hour, i.e., 8.00
a.m. near a religious place with such large number of        B
bags and their sitting on them and on seeing the police
party their conduct of trying to hide themselves behind
the bags prove and establish that they were in possession
of the said bags. The very fact that they tried to hide
themselves behind the bags made the police party             c
suspicious about the contents of the bags which led to
a search of the said bags and on search being carried
out in accordance with law, the said suspicion that the
bags contained contraband was confirmed. [Para 14)
[100-F-H; 101-A]                                             D
    2.2. The respondents, during the trial, could not give
any satisfactory reply as to how and why they came from
place H and were found sitting on bags of poppy husk.
Their subsequent conduct of hiding behind the bags also
shows their guilty mind. [Para 15) [101-8)                   E
     2.3. In the memos prepared by the Investigating
Officer, it was clearly stated that the contraband was
contained in the bags which were kept in the possession
of the respondents. There were separate memos
prepared and each one of them is signed by the two           F
respondents respectively and separately. The said
documents, therefore, clearly establish that the
respondents were in possessi,on of the said contraband.
The evidence adduced by both the Sub-Inspectors as
also by the Assistant Sub-Inspector examined as PW-3         G
and PW-4 also prove and establish that both the
respondents were in conscious possession of the
contraband goods. [Para 16) [101-C-E)
    lnder Sain v. State of Punjab (1973) 2 SCC 372; Madan    H
    94     SUPREME COURT REPORTS              [2010] 4 S.C.R.


A Lal and Anr. v. State of H.P. (2003) 7 SCC 465; Gunwantla/
  v. State of M.P. (1972) 2 sec 194, relied on.
         3. Regarding the seizure of the contraband goods,
    the discrepancies pointed out by the High Court are very
    minor and they are not very material. The prosecution
8   has been able to establish and prove that the said bags
    which were 35 in number contained poppy husk and
    accordingly the same were seized after taking samples
    therefrom which were properly sealed. The defence has
    not been able to prove that the said seizure and seal put
C   in the samples were in any manner tampered with before
    it was examined by the Chemical Examiner, There was
    merely a delay of about seven days in sending the
    samples to the Foren~ic Examiner and it is not proved as
    to how the said delay bf seven days has affected the said
D   examination when it could not be proved that the seal of
    the sample was in any manner tampered with. The seal
    having been found intact at the time of the examination
    by the Chemical Examiner and the said fact having been
    recorded in his report, a mere observation by the High
E   Court that the case property might have been tampered
    with, is based on surmises and conjectures and cannot
    take the place of proof. The case property was produced
    in the Court and there is no evidence to show that the
    same was ever tampered with. [Paras 16 and 18] [101-E-
F   H; 102-A-B-E]
         Hardip Singh v. State of Punjab (2008) 8 SCC 557,
    relied on.
       4.1. The discrepancies referred to by the High Court
G as glaring discrepancies appear to be very minor
  discrepancies which do not in any manner affect the sub-
  stratum of the case and the offence alleged against the
  respondents. [Para 9] [98-F]
      4.2. Considering the facts and circumstances of the
H case, the view taken by the High Court is palpably wrong
 STATE OF PUNJAB v. LAKHWINDER SINGH & ANR.                   95


and the findings recorded are also perverse. The reasons           A
stated are sufficient and cogent grounds to disturb the
acquittal. The judgment and order passed by the High
Court is set aside and the order of the trial court is
restored. [Para 19] [102-E-F]
                                                                   B
                      Case Law Reference:
     (1973) 2 sec 372          Relied on.            Para 10
     (2003) 1 sec 465          Relied on.            Parat2
     (1972) 2 sec 194          Relied on.            Para 13       c
     (2008) s sec 557          Relied on.            Para 17
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 32 of 2009.
                                                                   D
    From the Judgment & Order dated 20.8.2007 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
607-DB of 2005.

     Kuldip Singh for the Appellant.
                                              , "                  E
     Manoj Mittal, Dr. K~il~sh Chand for the Respondents.

     The Judgment of the Court was delivered by

     DR. MUKUNDAKAM SHARMA 1. The present appeal is
an appeal filed by the State of Punjab challenging the judgment    F
and order dated 20.08.2007 passed by the High Court of
Punjab & Haryana whereby the High Court acquitted the
respondents herein of the charge under Section 15 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 [for
short "NDPS Act"], thereby reversing the judgment and order        G
of conviction and sentence passed by the trial Court, i.e., the
Special Court, Patiala. The trial Court convicted the
respondents herein under the aforesaid section and sentenced
each of them to suffer rigorous imprisonment for a period of
12 years and to pay a fine of Rs. 1 lakh each, and in default of   H
    96      SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A payment of fine, to further undergo rigorous imprisonment for
  two years.

         2. The prosecution case, in brief, is that on 23.04.2002
   Sub-Inspector, Tejinder Singh [PW-4], who was the then Station
   House Officer [for short "SHO"] of the Police Station, Ghagga
8
   accompanied by Sub-Inspector Ajaib Singh, Assistant Sub-
   Inspector Surinderpaljit Singh [PW-3] and constables, viz., Faqir
   Chand, Kulwant Singh and other police officials were present
   at village Shahpur and were going around in the course of their
   routine duty of checking of the religious places in the said
C village. It was during the course of patrolling that they also
   visited a temple of Udasi Community on Shahpur Tilla and saw
   that on the nearby passage a man and woman were sitting on
  some plastic bags. As soon as the respondents saw the police
  party, they tried to hide themselves behind the said bags. On
D seeing the aforesaid conduct of the respondents, the police
  party became suspicious and therefore approached them to
  enquire from them their identity. Respondent no. 1 gave his
  name as Lakhwinder Singh @ Lakha whereas the woman
  [respondent no. 2] disclosed her name as Balwinder Kaur.
E
         3. The SHO [PW-4] then informed the respondents about
  his suspicion of the said bags containing contraband and also
  of his intention to conduct a search of the bags. Accordingly,
  PW-4 offered them as to whether they wanted to be searched
F by him or by a Gazetted Officer or a Magistrate. At this,
  respondents refused to be searched by PW-4 and
  consequently, the Sub-Inspector sent a wireless message to
  send a Gazetted Officer or a Magistrate. Upon this Jaspreet
  Singh Sindhu, DSP, Samana arrived at the said place and
G disclosed his identity to the accused persons and separately
  asked the respondents as to whether they wanted their search
  to be conducted by a Gazetted Officer or a Magistrate. Lady
  Constable Harjit Kaur was also called at the spot. On being so
  asked, both the respondents gave their consent to be searched
  before the DSP. In the meantime, Gurnam Singh, Lamberdar
H
 STATE OF PUNJAB v. LAKHWINDER SINGH & ANR.                    97
        [DR. MUKUNDAKAM SHARMA, J.]

of village Kakrala also joined the police party and he also thumb    A
marked the consent memo. Thereafter, a search of the bags
on which the respondents were sitting, numbering 35, was
conducted and poppy husk was found in all the 35 bags.

     4. On recovery of the aforesaid poppy husk from the said        8
 bags, two samples of 250 grams each were separated from
each bag and separate parcels were prepared. The bags were
numbered from Nos. 1 to 35. The bags as well as the sample
parcels were separately sealed by PW-4 with his seal TS, and
the sample seal was separately prepared. The seal after use          C
was handed over to Gurnam Singh, Lamberdar of village
Kakrala. The case property was taken into possession through
recovery memo. Intimation for grounds of arrest was given to
the respondents and they were accordingly arrested and on
return to the police station, case property was deposited with
the MHC. The case property and the sample parcels were               D
produced before the learned Sub-Divisional Judicial
Magistrate, Samana on 24.04.2002. On the anaiysis of the
samples, the Chemical Examiner submitted a report whereby
he confirmed the contents of the samples seized and sealed
to be poppy husk. Ruqa was prepared and sent to the Police           E
Station Ghagga, on the basis of which a formal First Information
Report was drawn and registered. After completing the
investigation, the challan was presented in the -court.

      5. The trial Court after receipt of the chargesheet filed      F
under Section 15 of the NDPS Act charged the respondents
under the said Section. The respondents herein pleaded not
guilty to the charge and. claimed trial. Consequently, a trial was
conducted, during the course of which, the prosecution
examined four witnesses whereas the defence examined none.           G
The respondents were examined under Section 313 CrPC.

    6. Upon completion of the trial, the learned Judge, Special
Court, Patiala passed a judgment and order dated 07.07.2005
whereby the trial Court convicted the respondents herein under
Section 15 of the NDPS Act and sentenced them as aforesaid.          H
    98      SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A      7. Being aggrieved by the aforesaid judgment and order
  of conviction and sentence, the respondents herein filed an
  appeal before the High Court of Punjab and Haryana. The High
  Court after hearing the parties passed a judgment and order
  dated 20.08.2007 allowing the appeal filed by the respondents
B herein. The Division Bench of the High Court set aside the order
  of conviction and sentence passed by the trial Court and
  acquitted the respondents of all the charges. Being aggrieved
  by the aforesaid order of acquittal, the present appeal was filed
  by the State of Punjab on which we have heard the learned
c counsel appearing for the parties.

       8. The counsel appearing for the State submitted before
  us that the order of acquittal is palpably wrong and perverse. It
  was also submitted that the findings recorded by the High Court
  that there were glaring discrepancies in the prosecution case
D is based on irrelevant materials and that the order of acquittal
  was passed on frivolous grounds. It was also submitted by the
  counsel appearing for the appellant that conscious possession
  of the illegal substance by the respondents was established
  and the said finding having not been discredited, the High Court
E was not justified in interfering with the order of conviction
  recorded by the trial Court.

       9. In order to appreciate the aforesaid contention, we have
  gone through the records. The discrepancies which are referred
F to by the High Court as glaring discrepancies appear to us to
  be very minor discrepancies which do not in any manner affect
  the sub-stratum of the case and the offence alleged against the
  respondents. The High Court has held that both the
  respondents were required to be acquitted because
G Surinderpaljit Singh [PW-3] had stated that the seal was
  handed over to Gurnam Singh, Lamberdar of village Kakrala
  whereas the Investigating Officer had stated that the seal was
  handed over to Sub-Inspector Ajaib Singh. The other ground
  which was considered and relied upon by the High Court for
  acquitting the respondents was that the DSP, who had been
H
STATE OF PUNJAB v. LAKHWINDER SINGH & ANR.                      99
       [DR. MUKUNDAKAM SHARMA, J.]

called at the 9ption of the respondents who wanted to be              A
searched in front of the gazetted officer was not brought into
the witness box and was given up by the prosecution as being
unnecessary. Other grounds which have been recorded by the
High Court for acquitting the responde~ts were that the police
officials were travelling in a private jeep but the number of that    B
jeep was not given by the prosecution and that the Sub-
Inspector Tejinder Singh [PW-4], the Investigation Officer did not
categorically say as to who was driving the jeep and who was
the owner of the jeep. The High Court has also held that the
delay of about seven days in sending th~ samples of the case          c
property to the Forensic Science Laboratory was fatal,
inasmuch as in the intervening period tampering of the case
property could have been easily done. For the aforesaid
reasons, the High Court passed the order of acquittal.
            .
      10. Counsel appearing for the respondents disputed the
                                                                      ·o
fact of conscious possession by the respondents and
submitted that merely because the respondents were sitting on
the bags it could not be said that they were in conscious
possession of the bags. The expression "possession" came to
be analysed by this Court in several decisions. The first case        E
in point of time to which our attention was drawn is the decision
in the case of lnder Sain v. State of Punjab reported in (1973)
2 sec 372. In the said decision also this Court was called upon
to answer the question as to whether the appellant was in
possession of opium. In the said decision, this Court held that        F
the word "possess" connotes some sort of knowledge about
the thing possessed. It was also held that the prosecution must
prove that accused was in control of something in the
circumstances which showed that he was assenting to being
in control of it. This Court further held that once it is proved by   G
the prosecution that the accused was in physical custody of
opium, it is for the accused to prove statutorily that he has not
committed an offence by showing that he was not knowingly in
possession of opium. Thus, the burden of proving the fact that
the accused was not knowingly in possession of the contraband         H
    100     SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A would lie on the shoulders of the accused person.

       11. Section 15 of the NDPS Act makes possession of
  contraband articles an offence. Section 15 appears in Chapter
  IV of the Act which relates to the offence of possession of
B poppy straw.

       12. In Madan Lal and another v. State of H.P. reported in
  (2003) 7 SCC 465 this Court held that 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
C possession of the same is within his special knowledge. It was
  also held in that case that Section 35 of the Act gives a
  statutory recognition to this position by making it a statutory
  presumption available in law. Similar is the position in terms
  of Section 54 where also presumption is available to be drawn
D from possession of illicit articles.

       13. In Gunwantla/ v. State of M.P. reported in (1972). 2
  SCC 194 it was held by this Court that possession in a given
  case need not be physical possession but can be constructive,
E having power and control over the article in the case in question,
  while the person to whom physical possession is given also is
  subject to such power or control.

        14. In the backdrop of the aforesaid settled position of law
  we have to examine the facts of the present case in order to
F hold as to whether or not the respondents could be said to have
  been in conscious possession of the contraband goods.
  Evidence was led by the prosecution to establish that the
  respondents were found sitting on the aforesaid bags of poppy
  husk. It was also stated by the Sub-Inspector as also the
G Assistant Sub-Inspector that the presence of the accused
  respondents at such an early hour, i.e., 8.00 a.m. near a
  religious place with such large number of bags and their sitting
  on them and on seeing the police party their conduct of trying
  to hide themselves behind the bags prove and establi$h that
H they were in possession of the aforesaid bags. The very fact
 STATE OF PUNJAB v. LAKHWINDER SINGH & ANR. 101
        [DR. MUKUNDAKAM SHARMA, J.]
that they tried to hide themselves behind the bags made the A
police party suspicious about the contents of the bags which
led to a search of the said bags and on search being carried
out in accordance with law, the aforesaid suspicion that the
bags contained contraband was confirmed.
                                                                  B
     15. The respondents, during the trial, could not give any
satisfactory reply as to how and why they came from Haryana
and were found sitting on bags of poppy husk. Their subsequent
conduct of hiding behind the bags also shows their guilty mind.

      16. Reference could also be made to Exhibits PC and PD C
 which are memos prepared by the Investigating Officer. In the
 said memos, it was clearly stated that the contraband was
 contained in the bags which were kept in the possession of the
 respondents. There were separate memos prepared and each
 one of them is signed by the two respondents respectively and D
 separately. The aforesaid documents, therefore, clearly
 establish that the respondents were in possession of the said
 contraband. The evidence adduced by both the Sub-Inspectors
 as also by the Assistant Sub-Inspector examined as PW-3 and
 PW-4 also prove and establish that both the respondents were E
 in conscious possession of the contraband goods. So far as
the seizure of the contraband goods is concerned, the
discrepancies pointed out by the High Court in our opinion are
very minor and they are not very material. The prosecution has
been able to establish and prove that the aforesaid bags which F
were 35 in number contained poppy husk and accordingly the
same were seized after taking samples therefrom which were
properly sealed. The defence has not been able to prove that
the aforesaid seizure and seal put in the samples were in any
manner tampered with before it was examined by the Chemical G
Examiner. There was merely a delay of about seven days in
sending the samples to the Forensic Examiner and it is not
proved as to how the aforesaid delay of seven days has·
affected the said examination when it could not be proved that
the seal of the sample was in any manner tampered with. The H
    102     SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A   seal having been found intact at the time of the examination
    by the Chemical Examiner and the said fact having been
    recorded in his report, a mere observation by the High Court
    that the case property might have been tampered with, in our
    opinion is based on surmises and conjectures and cannot take
B   the place of proof.

       17. We may at this stage refer to a decision of this Court
   in Hardip Singh v. State of Punjab reported in (2008) 8 SCC
   557 in which there was a delay of about 40 days in sending
C the sample to laboratory after the same was seized. In the said
   decision, it was held that in view of cogent and reliable
   evidence that the opium was seized and sealed and that the
   samples were intact till they were handed over to the Chemical
   Examiner, the delay itself was held to be not fatal to the
   prosecution case. In our considered opinion, the ratio of the
D aforesaid decision squarely applies to the facts of the present
 . case in this regard.

          18. The case property was produced in the Court and
    there is no evidence to show that the same was ever tampered
E   with.

         19. Considering the facts and circumstances of the case,
    we are of the considered opinion that the view taken by the
    High Court is palpably wrong and the findings recorded are also
    perverse. In our considered opinion, the aforesaid reasons
F   which are stated hereinabove are sufficient and cogent grounds
    to disturb the acquittal. Accordingly, the judgment and order
    passed by the High Court is set aside and the order of the trial
    Court is restored.

G       20. The respondents, if at liberty, are hereby directed to
    surrender forthwith and undergo the remaining term of
    imprisonment as directed by the trial Court. The appeal stands
    disposed of in terms of the aforesaid order.

H   N.J.                                      Appeal disposed of.