STATE OF PUNJABversusRAM PAL

                         [2009) 5 S.C.R. 601
·;-1
                          STATE OF PUNJAB                             A
                                   v.
                               RAM PAL
                   (Criminal Appeal No. 291 of 2004)
                            MARCH 26, 2009
                                                                      B
         [DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
                     AND P. SATHASIVAM, JJ.]

             Narcotic Drugs and Psychotropic Substances Act, 1985
        - s. 25, 35 and 54 - Conviction u/s. 25 - Acquittal holding c
       that conscious possession not established - On appeal, held:
       Law relating to conscious possession dealt with in a case
       decided by Supreme Court - Since the accused not
       represented, matter remitted to High Court to decide the case
~      in accordance with decision passed by Supreme Court.          D

           Words and Phrases - 'Conscious' and 'Possession' -
       Meaning of in the context of Narcotic Drugs and Psychotropic
       substances Act, 1985.
           Respondent-accused was charged u/s. 15 of                  E
       Narcotic Drugs and Psychotropic su'bstances Act, 1985
       with co-accused. Respondent was convicted u/s. 25 of
       the Act. High Court directed acquittal ?n th~ ground that
 _)    conscious possession had not been established. Hence
       the present appeal.                                            F
                                                      I

          Allowing the appeal and remitting t,he matter to High
                                                I
       Court, the Court                         '




            HELD: 1. The expression "possession" is a
                                                                   G
       polymorphous term which assumed different colours in
       different contexts. It may carry different meanings in
 ~,~
       contextually different backgrounds. It is impossible, to
       work out a completely logical and precise definition of
       "possession" informally applicable to all situations in the
                                601                                H
    602         SUPREME COURT REPORTS          (2009] 5 S.C.R.
                                                                 ....   -
A context of all statutes. The word "conscious" means
  awarness about a particular fact, it is a state of mind
  which is deliberate or intended. 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. The word "possession" means the
  legal right to possession. [Paras 4, 5, 6 and 8] [604-8, C;
  604-D; 604-E]
c       Spdt. and Remembranqer of Legal Affairs, WB. vs. Anil
    Kumar Bhujja (1980) 1 SCR 323 and Gunwantlal vs. State
    of M.P. (1973) 1 SCR 508, relied on.

      2. Once possession is established, the person who
D claims that it was not a conscious possession has to
  establish it, because how he came to be in possession
  is within his special knowledge. Section 35 of the Act
  gives a statutory recognition of this position because of
  the presumption available in law. Similar is the position
E in terms of Section 54 where also presumption is available
  to be drawn from possession of illicit articles. [Para 9]
  [604-G]

          3. Since the respondent is not represented the
F impugned judgment is set aside and the matter is remitted      \_
    to the High Court for deciding the matter afresh in the
    light of what is stated by this court in Madan Lal's case.
    [Para 9] [605-8)

       Madan Lal and Anr. vs. State of H.P. 2003 (7) SCC 465,
G relied on.

                        Case Law Reference:
          2003 (7) sec 465        Relied on.          Para 3

H         (1980) 1 SCR 323        Relied on.          Para 4
                         STATE OF PUNJAB v. RAM PAL                       603
-    Jr
                 (1973) 1 SCR 508             Relied on.            Para 6       A
                CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
            No. 291 of 2004.

                From the Judgment & Order dated 25.02.2003 of the High
    •.l,,   Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.           B
            441-DB/2002.

                  Kuldip Singh, R.K. Pandey, T.P. Mishra and Sanjay Katyal
            for the Appellant.

                 The Judgment of the Court was delivered by
                                                                                 c
                 DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
            to the judgment of acquittal recorded by a Division Bench of
            the Punjab and Haryana High Court directing acquittal of the
            respondent who faced trial for alleged commission of offence         D
    ·~      punishable under Section 25 of the Narcotic Drugs and
            Psychotropic Substances Act, 1985 (in short 'Act'). He was
            sentenced to undergo rigorous imprisonment for a period of 11
            years and to pay a fine of Rs. 1,00,000/- with default stipulation
            by the learned Single Judge, Patiala.                                E
                 2. So far as co-accused Amirk Singh is concerned, he was
            convicted under Section 15 of the Act and was awarded the
            same sentence. Two separate appeals were filed. It needs to
            be mentioned here that respondent Ram Pal was also charged
     _)                                                                     F
            for offence punishable under Section 15 of the Act but in view
            of the conviction recorded in respect of Section 25 of the Act
            no sentence was awarded. Therefore, no separate sentence
            was imposed in respect of accusation relatable to Section 15
            of the Act. The High Court primarily directed acquittal on the·
            ground that conscious possession has not been established. G

    ~ ),.
                 3. Learned counsel for the appellant-State submitted that
            the position in law relation to conscious possession has been
            dealt with in detail by this court in Madan Lal and Anr. vs. State
            of H.P. 2003 (7) SCC 465. The High Court has not kept the            H
    604          SUPREME COURT REPORTS            [2009] 5 S.C.R.


A correct position in view.

          4. There is no appearance on behalf of the respondent.

        5. The expression "possession" is a polymorphous term
B which assumed different Colours in different contexts. It may
  carry different meanings in contextually different backgrounds.
  It is impossible, as was observed in Spdt. & Remembrancer
  of Legal Affairs, W.B. vs. Anil Kumar Bhujja to work out a
  completely logical and precise definition of "Possession"
C uniformally applicable to all situations in the context of all
  statues.
         6. The word "conscious" means awareness about a
    particular fact. It is a state of mind which is deliberate or

D
    intended.
       7. As noted in Gunwant/al vs. State of M.P. possession in
                                                                    )-   .
  a given case need not be physical possession but can be
  constructive, having power and control over the article in the
  case in question, while the person to whom physical
E possession is given holds it subject to that power or control.
      8. The word "possession" means the legal right to
  possession. In an interesting case it was observed that
  whereas person keeps his firearm in his mother's flat which is
  safer than his own home, he must be considered to be in
F possession of the same.                                           \-

        9. 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
G 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 to be drawn from possession of illicit
  articles.
H
             STATE OF PUNJAB v. RAM PAL                      605
                [DR. ARIJIT PASAYAT, J.]

     10. Normally we would have decided the matter taking note      A
of what is stated in Madan Lal and Anr. vs. State of H.P. 2003
(7) 465. But the respondent is not represented and, therefore,
we deem it proper to set aside the impugned judgment and
remit the matter to the High Court afresh in the light of what is
stated by this court in Madan Lal case (supra). The present         B
judgment will cover the case of accused Ram Pal only.

     11. The appeal is allowed to the aforesaid extent.
K.K.T.                                         . Appeal allowed.