The last plank of submission of the learned counsel for
the appellants is that no independent witness has been
examined to substantiate the allegation of the prosecution.
It is worth to note that Labh Singh and Harvinder Singh
have not been examined by the prosecution. The
explanation has been offered that the investigating agency
was of the view that they had been won over. The said
explanation has been totally substantiated inasmuch as
they have been examined as defence witnesses. In such a
situation, no adverse inference can be drawn for
non-examination of the said witnesses. That apart, the case
of the prosecution cannot be rejected solely on the ground
that independent witnesses have not been examined when,
on the perusal of the evidence on record the Court finds
that the case put forth by the prosecution is trustworthy.
When the evidence of the official witnesses are trustworthy
and credible, there is no reason not to rest the conviction on
the basis of their evidence. In this regard, it is profitable to
reproduce a passage from State (Govt. of NCT of Delhi) v.
Sunil(2001) 1 SCC 652which reads as follows:-
“We feel that it is an archaic notion that actions
of the police officer should be approached with
initial distrust. We are aware that such a notion
was lavishly entertained during the British period
and policemen also knew about it. Its hangover
persisted during post-independent years but it is
time now to start placing at least initial trust on
the actions and the documents made by the
police. At any rate, the court cannot start with
the presumption that the police records are
untrustworthy. As a proposition of law the
presumption should be the other way around.
That official acts of the police have been regularly
performed is a wise principle of presumption and
recognised even by the legislature. Hence when a
police officer gives evidence in court that a
certain article was recovered by him on the
strength of the statement made by the accused it
is open to the court to believe the version to be
correct if it is not otherwise shown to be
unreliable. It is for the accused, through
cross-examination of witnesses or through any
other materials, to show that the evidence of the
police officer is either unreliable or at least
unsafe to be acted upon in a particular case. If
the court has any good reason to suspect the
truthfulness of such records of the police the
court could certainly take into account the fact
that no other independent person was present at
the time of recovery. But it is not a legally
approvable procedure to presume the police
action as unreliable to start with, nor to jettison
such action merely for the reason that police did
not collect signatures of independent persons in
the documents made contemporaneous with
such actions.”
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 681 OF 2011
Kulwinder Singh & Anr. V State of Punjab
Citation;(2015) 6 SCC674
Dipak Misra, J.
In this appeal, two appellants, namely, Kulwinder
Singh and Amrik Singh faced trial along with three others
for the offence punishable under Section 15 of the Narcotics
Drugs and Psychotropic Substances Act, 1985 (for short,
“the NDPS Act”) before the Special Court, Sangrur and were
found guilty for the said offence and sentenced to undergo
rigorous imprisonment for a period of 10 years and to pay a
fine of Rs.1 lakh each and, in default of payment of fine, to
suffer rigorous imprisonment for a further period of one
year. The conviction and sentence were called in question
before the High Court in Criminal Appeal No. 384-SB of
1998 and the High Court after re-appreciating the evidence,
gave the stamp of approval to the same.
2. The prosecution case, as unfurled, is that on
17.4.1988, Jarnail Singh, ASI, along with other police
officials was patrolling on the canal bridge in the area of
village Raidhriana. In the early part of the morning, a truck
bearing no. DIL-781 came from the side of village
Raidhriana and it was proceeding towards the canal bridge.
When the truck reached near the police party, Jarnail
Singh, gave a signal with a torch light and asked the driver
to stop. After the vehicle stopped, it was circled by the
police officials. The driver of the truck, on enquiry,
disclosed his name as Balwinder Singh and Devender Singh
and Bagga Singh were sitting by his side on the front seat.
Jagminder Singh and four others were sitting on the back
side of the truck and on a query being made, all except
Jagminder Singh jumped from the truck and took to their
heels. Chase by the police party was unsuccessful. The
persons who were successful in running away are Satta @
Satnam Singh, Amrik Singh, Kulwinder Singh @ Kala and
2Jagdev Singh @ Jagga. The Investigating Officer
apprehended Jagminder Singh, Balwinder Singh, Devinder
Singh and Bagga Singh; and in their presence, the vehicle
was searched. On a search being made, the police found
110 bags of poppy husk and each bag contained 38 kgs.
Samples were collected from each bag, duly sealed and
recovery memos were prepared and eventually they were
sent for chemical examination. The present
accused-appellants and Satta @ Satnam Singh were
arrested on 11.5.1988 by ASI, Gurdas Singh, PW-1. In
course of investigation, the investigating agency recorded
statements of certain witnesses, obtained FSL report and
ultimately placed the chargesheet before the concerned
Magistrate, who in turn committed the matter to the Special
Court under the NDPS Act. The accused persons pleaded
not guilty and claimed to be tried.
3. The prosecution in order to substantiate the charge,
examined seven witnesses. The main witnesses are ASI,
Gurdas Singh, PW-1, Jagjivan Singh, PW-2, Ajit Singh,
PW-3 and Om Prakash, PW-7. ASI, Jarnail Singh, could not
be examined as he had expired before the commencement of
3the evidence of the prosecution. The accused-appellants
took the plea that they were brought from the village and
falsely implicated in the case and there was no recovery
effected from them. The defence in support of its stand
examined nine witnesses, DW-1 to DW-9.
4. The learned trial Judge appreciating the evidence on
record found the appellants and two others guilty of the
offence and sentenced them, as has been stated
hereinbefore. Being dissatisfied with the judgment of
conviction and order of sentence, the appellants along with
two others preferred Criminal Appeal No. 384 of 1998 and
Bagga Singh and Balwinder Singh preferred separate
appeals. It was contended before the High Court that the
identity of the appellants were not established during the
trial inasmuch as no identification parade was conducted by
the investigating officer; that the prosecution had not
proved that the accused-appellants were in conscious
possession of the poppy husk; that Labh Singh and
Harvinder Singh though had joined the investigating officer
at the time of alleged search and seizure, they were not
examined by the prosecution; and that the prosecution had
4miserably failed to prove the involvement of the appellants
in the crime in question. The High Court dealt with each of
the contentions and found no merit in any of them and
resultantly dismissed the appeal.
5. We have heard Mr. J.P. Dhanda, learned counsel for
the appellants and Mr. Jayant K. Sud, learned AAG for the
State.
6. Learned counsel for the appellants, apart from raising
the similar contentions which had been raised before the
High Court, has also urged that there has been
non-compliance of Section 50 of the NDPS Act, which
vitiates the conviction. He has also emphasised on the
issue of conscious possession by the appellants and has
seriously criticized non-conducting of the test identification
parade. Learned counsel for the State, per contra, has
contended that in the instant case there was no need for
holding a test identification parade inasmuch as PW-2 and
PW-3 have identified the accused persons in court and they
had occasion to see the appellants as they had stopped the
truck and had time to see them and their evidence has not
5been dented despite roving cross-examination. Learned
counsel for the State would also contend that the running
away of the accused persons from the spot and their
abscondance thereafter prove the factum of their special
knowledge about the contents in the bags loaded in the
truck and that establishes the conscious state of their mind.
7. Resisting the submission about the non-examination
of independent witnesses, namely, Labh Singh and
Harvinder Singh, it is contended by the learned counsel for
the State that as they were won over by the defence, the
prosecution though it appropriate not to examine them as
their witnesses and the same has been proven to be a fact,
for they have been examined as defence witnesses. As
regards non-compliance of Section 50 of the NDPS Act, it is
submitted by the learned counsel for the respondent-State
as the recovery was from a truck there was no need for
compliance of Section 50 of the NDPS Act.
8. First, we shall deal with the facet of test identification
parade. There is no dispute that the test identification
parade has not been held in this case. The two witnesses,
6namely, PW-2 and PW-3 have identified the
accused-appellants in court. As per their evidence they had
seen the accused-appellants in torch light and they had also
seen them running away. It has also come in the evidence
that they chased them but they could not be apprehended.
Learned trial Judge as well as the High Court has taken
note of the fact that it was 4:00 a.m. in the month of April
and, therefore, it was not all that dark and with the help of
torch light, they could have identified the accused persons.
The suggestion given to these witnesses is absolutely vague.
Nothing really has been elicited in the cross-examination to
discard the testimony of these witnesses.
9. In Matru v. State of U.P.1
, it has been held that the
identification test does not constitute substantive evidence
and it is primarily meant for the purpose of helping the
investigating agency with an assurance that their progress
with the investigation of an offence is proceeding on the
right lines.
1
(1971) 2 SCC 75
710. In Santokh Singh v. Izhar Hussain2
, it has been
observed that the identification can only be used as
corroborative of the statement in Court.
11. In Malkhan Singh & Others v. State of M.P.3
, it has
been held thus:-
“...... The identification parades belong to the
stage of investigation, and there is no provision in
the Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right
upon the accused to claim a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence
of identification in court. The weight to be
attached to such identification should be a
matter for the courts of fact.”
12. In this context, a reference to passage from
Visveswaran v. State4
, would be apt. It is as follows:-
“The identification of the accused either in test
identification parade or in Court is not a sine qua
non in every case if from the circumstances the
guilt is otherwise established. Many a time,
crimes are committed under the cover of
darkness when none is able to identify the
accused. The commission of a crime can be
proved also by circumstantial evidence.”
2
(1973) 2 SCC 406
3
(2003) 5 SCC 746
4
(2003) 6 SCC 73
813. In the case at hand, as the witnesses have identified
the accused-appellants in the Court and except giving a
bald suggestion that they have not seen the accused
persons, there is nothing in the cross-examination we are
disposed to accept the identification in Court. Hence, the
submission canvassed by the learned counsel for the
appellants on this score pales into insignificance.
14. The next ground of assail pertains to factum of
conscious possession. The submission of the learned
counsel for the appellants is that they were only moving in
the truck and had no knowledge what the bags contained.
As the evidence on record would show, two of the accused
persons were sitting by the side of the driver and the rest of
the accused persons were sitting on the body of the truck.
110 bags of poppy husk weighing 4180 kgs. were in the
truck. At the instance of the police when the truck was
stopped, had the accused-appellants no knowledge about
the contents of the bags, they would not have run away
from the spot. That apart, they absconded for few days
from their village. They have not taken the plea that they
9were taking any lift in the truck and their presence in the
truck has been proven by the prosecution. It is not a small
bag lying in the corner of the truck that the
accused-appellants can advance the plea that they were not
aware of it. In the instant case, there were 110 bags of
poppy husk being carried in the truck. Their presence
which has been proven, establishes their control over the
bags. The circumstances clearly establish that they were
aware of the poppy husk inside the bags and in such a
situation, it is difficult to accept that they were not in
conscious possession of the said articles.
15. In this context reference to the decision in Madan Lal
v. State of H.P.5
would be fruitful wherein it has been held
thus:-
“22. The expression “possession” is a
polymorphous term which assumes different
colours in different contexts. It may carry
different meanings in contextually different
backgrounds. It is impossible, as was observed in
Supdt. & Remembrancer of Legal Affairs, W.B. v.
Anil Kumar Bhunja6
to work out a completely
logical and precise definition of “possession”
uniformally applicable to all situations in the
context of all statutes.
5
(2003) 7 SCC 465
6
(1979) 4 SCC 274
1023. The word “conscious” means awareness
about a particular fact. It is a state of mind which
is deliberate or intended.
24. As noted in Gunwantlal v. State of M.P.7
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
possession is given holds it subject to that power
or control.
25. The word “possession” means the legal right
to possession (see Heath v. Drown8
). In an
interesting case 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 Caithness9
.)”
16. In Dharampal Singh v. State of Punjab10, it has
been ruled that the expression “possession” is not capable
of precise and complete logical definition of universal
application in the context of all the statutes. Recently, in
Mohan Lal v. State of Rajasthan11, after referring to
certain authorities, this Court has held as follows:-
7
(1972) 2 SCC 194
8
(1972) 2 All ER 561
9
(1976) 1 All ER 844
10 (2010) 9 SCC 608
11 (2015) 5 SCALE 330
11“From the aforesaid exposition of law it is quite
vivid that the term “possession” for the purpose
of Section 18 of the NDPS Act could mean
physical possession with animus, custody or
dominion over the prohibited substance with
animus or even exercise of dominion and control
as a result of concealment. The animus and the
mental intent which is the primary and
significant element to show and establish
possession. Further, personal knowledge as to
the existence of the “chattel” i.e. the illegal
substance at a particular location or site, at a
relevant time and the intention based upon the
knowledge, would constitute the unique
relationship and manifest possession. In such a
situation, presence and existence of possession
could be justified, for the intention is to exercise
right over the substance or the chattel and to act
as the owner to the exclusion of others. In the
case at hand, the appellant, we hold, had the
requisite degree of control when, even if the said
narcotic substance was not within his physical
control at that moment. To give an example, a
person can conceal prohibited narcotic substance
in a property and move out thereafter. The said
person because of necessary animus would be in
possession of the said substance even if he is not,
at the moment, in physical control. The
situation cannot be viewed differently when a
person conceals and hides the prohibited
narcotic substance in a public space. In the
second category of cases, the person would be in
possession because he has the necessary animus
and the intention to retain control and
dominion.”
17. In view of the aforesaid enunciation of law, once
possession is found, the accused is presumed to be in
12conscious possession as has been held in Ram Singh v.
Central Bureau of Narcotics12. If the accused takes a
stand that he was not in conscious possession, he has to
establish the same, as has been held in Dharampal Singh
(supra). As the materials brought on record would show,
the accused-appellants were sitting in the truck; their
presence in the truck has been clearly established; and they
had run away from the spot and absconded for some days
from the village. It is proven that there were 110 bags of
poppy husk in the truck and the accused-appellants were in
control of the articles in the truck. Therefore, there can be
no iota of doubt that they were in conscious possession of
the same. In view of the aforesaid analysis, we do not find
any force in the submission of the learned counsel for the
appellants.
18. The next contention that has been raised by the
learned counsel for the appellants relates to non-compliance
of Section 50 of the NDPS Act. It is undisputed that the
bags containing poppy husk were seized from the truck.
Thus, it is not a case of personal search of a person. In
12 (2011) 11 SCC 347
13Megh Singh v. State of Punjab13, it has been held that
Section 50 only applies in case of personal search of a
person, but it is not extended to a search of a vehicle or a
container or a bag or premises.
19. In State of H.P. v. Pawan Kumar14, it has been held
that:-
“10. We are not concerned here with the wide
definition of the word “person”, which in the legal
world includes corporations, associations or body
of individuals as factually in these type of cases
search of their premises can be done and not of
their person. Having regard to the scheme of the
Act and the context in which it has been used in
the section it naturally means a human being or
a living individual unit and not an artificial
person. The word has to be understood in a
broad common-sense manner and, therefore, not
a naked or nude body of a human being but the
manner in which a normal human being will
move about in a civilised society. Therefore, the
most appropriate meaning of the word “person”
appears to be — “the body of a human being as
presented to public view usually with its
appropriate coverings and clothing”. In a civilised
society appropriate coverings and clothings are
considered absolutely essential and no sane
human being comes in the gaze of others without
appropriate coverings and clothings. The
appropriate coverings will include footwear also
as normally it is considered an essential article to
be worn while moving outside one’s home. Such
appropriate coverings or clothings or footwear,
after being worn, move along with the human
13 (2003) 8 SCC 666
14 (2005) 4 SCC 350
14body without any appreciable or extra effort.
Once worn, they would not normally get detached
from the body of the human being unless some
specific effort in that direction is made. For
interpreting the provision, rare cases of some
religious monks and sages, who, according to the
tenets of their religious belief do not cover their
body with clothings, are not to be taken notice of.
Therefore, the word “person” would mean a
human being with appropriate coverings and
clothings and also footwear.
11. A bag, briefcase or any such article or
container, etc. can, under no circumstances, be
treated as body of a human being. They are given
a separate name and are identifiable as such.
They cannot even remotely be treated to be part
of the body of a human being. Depending upon
the physical capacity of a person, he may carry
any number of items like a bag, a briefcase, a
suitcase, a tin box, a thaila, a jhola, a gathri, a
holdall, a carton, etc. of varying size, dimension
or weight. However, while carrying or moving
along with them, some extra effort or energy
would be required. They would have to be carried
either by the hand or hung on the shoulder or
back or placed on the head. In common parlance
it would be said that a person is carrying a
particular article, specifying the manner in which
it was carried like hand, shoulder, back or head,
etc. Therefore, it is not possible to include these
articles within the ambit of the word “person”
occurring in Section 50 of the Act.”
15Similar view has been expressed in Jarnail Singh v.
State of Punjab15 and Ram Swaroop v. State
(Government of NCT of Delhi)16
.
20. In view of the aforesaid, the submission that
non-compliance of Section 50 vitiates the conviction, leaves
us unimpressed.
21. The last plank of submission of the learned counsel for
the appellants is that no independent witness has been
examined to substantiate the allegation of the prosecution.
It is worth to note that Labh Singh and Harvinder Singh
have not been examined by the prosecution. The
explanation has been offered that the investigating agency
was of the view that they had been won over. The said
explanation has been totally substantiated inasmuch as
they have been examined as defence witnesses. In such a
situation, no adverse inference can be drawn for
non-examination of the said witnesses. That apart, the case
of the prosecution cannot be rejected solely on the ground
that independent witnesses have not been examined when,
on the perusal of the evidence on record the Court finds
15 (2011) 3 SCC 521
16 (2014) 14 SCC 235
16that the case put forth by the prosecution is trustworthy.
When the evidence of the official witnesses are trustworthy
and credible, there is no reason not to rest the conviction on
the basis of their evidence. In this regard, it is profitable to
reproduce a passage from State (Govt. of NCT of Delhi) v.
Sunil17 which reads as follows:-
“We feel that it is an archaic notion that actions
of the police officer should be approached with
initial distrust. We are aware that such a notion
was lavishly entertained during the British period
and policemen also knew about it. Its hangover
persisted during post-independent years but it is
time now to start placing at least initial trust on
the actions and the documents made by the
police. At any rate, the court cannot start with
the presumption that the police records are
untrustworthy. As a proposition of law the
presumption should be the other way around.
That official acts of the police have been regularly
performed is a wise principle of presumption and
recognised even by the legislature. Hence when a
police officer gives evidence in court that a
certain article was recovered by him on the
strength of the statement made by the accused it
is open to the court to believe the version to be
correct if it is not otherwise shown to be
unreliable. It is for the accused, through
cross-examination of witnesses or through any
other materials, to show that the evidence of the
police officer is either unreliable or at least
unsafe to be acted upon in a particular case. If
the court has any good reason to suspect the
truthfulness of such records of the police the
court could certainly take into account the fact
17 (2001) 1 SCC 652
17that no other independent person was present at
the time of recovery. But it is not a legally
approvable procedure to presume the police
action as unreliable to start with, nor to jettison
such action merely for the reason that police did
not collect signatures of independent persons in
the documents made contemporaneous with
such actions.”
22. In the case at hand, the evidence is unimpeachable
and beyond reproach and the witnesses cited by the
prosecution can be believed and their evidence has been
correctly relied upon by the trial court and the High Court
to record a conviction. It is well settled in law that what is
necessary for proving the prosecution case is not the
quantity but the quality of the evidence.
23. In view of the aforesaid premised reasons, we do not
perceive any merit in this appeal and it is accordingly
dismissed.
.............................J.
[Dipak Misra]
.............................J.
[N.V. Ramana]
New Delhi
May 05, 2015
18
Print Page
the appellants is that no independent witness has been
examined to substantiate the allegation of the prosecution.
It is worth to note that Labh Singh and Harvinder Singh
have not been examined by the prosecution. The
explanation has been offered that the investigating agency
was of the view that they had been won over. The said
explanation has been totally substantiated inasmuch as
they have been examined as defence witnesses. In such a
situation, no adverse inference can be drawn for
non-examination of the said witnesses. That apart, the case
of the prosecution cannot be rejected solely on the ground
that independent witnesses have not been examined when,
on the perusal of the evidence on record the Court finds
that the case put forth by the prosecution is trustworthy.
When the evidence of the official witnesses are trustworthy
and credible, there is no reason not to rest the conviction on
the basis of their evidence. In this regard, it is profitable to
reproduce a passage from State (Govt. of NCT of Delhi) v.
Sunil(2001) 1 SCC 652which reads as follows:-
“We feel that it is an archaic notion that actions
of the police officer should be approached with
initial distrust. We are aware that such a notion
was lavishly entertained during the British period
and policemen also knew about it. Its hangover
persisted during post-independent years but it is
time now to start placing at least initial trust on
the actions and the documents made by the
police. At any rate, the court cannot start with
the presumption that the police records are
untrustworthy. As a proposition of law the
presumption should be the other way around.
That official acts of the police have been regularly
performed is a wise principle of presumption and
recognised even by the legislature. Hence when a
police officer gives evidence in court that a
certain article was recovered by him on the
strength of the statement made by the accused it
is open to the court to believe the version to be
correct if it is not otherwise shown to be
unreliable. It is for the accused, through
cross-examination of witnesses or through any
other materials, to show that the evidence of the
police officer is either unreliable or at least
unsafe to be acted upon in a particular case. If
the court has any good reason to suspect the
truthfulness of such records of the police the
court could certainly take into account the fact
that no other independent person was present at
the time of recovery. But it is not a legally
approvable procedure to presume the police
action as unreliable to start with, nor to jettison
such action merely for the reason that police did
not collect signatures of independent persons in
the documents made contemporaneous with
such actions.”
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 681 OF 2011
Kulwinder Singh & Anr. V State of Punjab
Citation;(2015) 6 SCC674
Dipak Misra, J.
In this appeal, two appellants, namely, Kulwinder
Singh and Amrik Singh faced trial along with three others
for the offence punishable under Section 15 of the Narcotics
Drugs and Psychotropic Substances Act, 1985 (for short,
“the NDPS Act”) before the Special Court, Sangrur and were
found guilty for the said offence and sentenced to undergo
rigorous imprisonment for a period of 10 years and to pay a
fine of Rs.1 lakh each and, in default of payment of fine, to
suffer rigorous imprisonment for a further period of one
year. The conviction and sentence were called in question
before the High Court in Criminal Appeal No. 384-SB of
1998 and the High Court after re-appreciating the evidence,
gave the stamp of approval to the same.
2. The prosecution case, as unfurled, is that on
17.4.1988, Jarnail Singh, ASI, along with other police
officials was patrolling on the canal bridge in the area of
village Raidhriana. In the early part of the morning, a truck
bearing no. DIL-781 came from the side of village
Raidhriana and it was proceeding towards the canal bridge.
When the truck reached near the police party, Jarnail
Singh, gave a signal with a torch light and asked the driver
to stop. After the vehicle stopped, it was circled by the
police officials. The driver of the truck, on enquiry,
disclosed his name as Balwinder Singh and Devender Singh
and Bagga Singh were sitting by his side on the front seat.
Jagminder Singh and four others were sitting on the back
side of the truck and on a query being made, all except
Jagminder Singh jumped from the truck and took to their
heels. Chase by the police party was unsuccessful. The
persons who were successful in running away are Satta @
Satnam Singh, Amrik Singh, Kulwinder Singh @ Kala and
2Jagdev Singh @ Jagga. The Investigating Officer
apprehended Jagminder Singh, Balwinder Singh, Devinder
Singh and Bagga Singh; and in their presence, the vehicle
was searched. On a search being made, the police found
110 bags of poppy husk and each bag contained 38 kgs.
Samples were collected from each bag, duly sealed and
recovery memos were prepared and eventually they were
sent for chemical examination. The present
accused-appellants and Satta @ Satnam Singh were
arrested on 11.5.1988 by ASI, Gurdas Singh, PW-1. In
course of investigation, the investigating agency recorded
statements of certain witnesses, obtained FSL report and
ultimately placed the chargesheet before the concerned
Magistrate, who in turn committed the matter to the Special
Court under the NDPS Act. The accused persons pleaded
not guilty and claimed to be tried.
3. The prosecution in order to substantiate the charge,
examined seven witnesses. The main witnesses are ASI,
Gurdas Singh, PW-1, Jagjivan Singh, PW-2, Ajit Singh,
PW-3 and Om Prakash, PW-7. ASI, Jarnail Singh, could not
be examined as he had expired before the commencement of
3the evidence of the prosecution. The accused-appellants
took the plea that they were brought from the village and
falsely implicated in the case and there was no recovery
effected from them. The defence in support of its stand
examined nine witnesses, DW-1 to DW-9.
4. The learned trial Judge appreciating the evidence on
record found the appellants and two others guilty of the
offence and sentenced them, as has been stated
hereinbefore. Being dissatisfied with the judgment of
conviction and order of sentence, the appellants along with
two others preferred Criminal Appeal No. 384 of 1998 and
Bagga Singh and Balwinder Singh preferred separate
appeals. It was contended before the High Court that the
identity of the appellants were not established during the
trial inasmuch as no identification parade was conducted by
the investigating officer; that the prosecution had not
proved that the accused-appellants were in conscious
possession of the poppy husk; that Labh Singh and
Harvinder Singh though had joined the investigating officer
at the time of alleged search and seizure, they were not
examined by the prosecution; and that the prosecution had
4miserably failed to prove the involvement of the appellants
in the crime in question. The High Court dealt with each of
the contentions and found no merit in any of them and
resultantly dismissed the appeal.
5. We have heard Mr. J.P. Dhanda, learned counsel for
the appellants and Mr. Jayant K. Sud, learned AAG for the
State.
6. Learned counsel for the appellants, apart from raising
the similar contentions which had been raised before the
High Court, has also urged that there has been
non-compliance of Section 50 of the NDPS Act, which
vitiates the conviction. He has also emphasised on the
issue of conscious possession by the appellants and has
seriously criticized non-conducting of the test identification
parade. Learned counsel for the State, per contra, has
contended that in the instant case there was no need for
holding a test identification parade inasmuch as PW-2 and
PW-3 have identified the accused persons in court and they
had occasion to see the appellants as they had stopped the
truck and had time to see them and their evidence has not
5been dented despite roving cross-examination. Learned
counsel for the State would also contend that the running
away of the accused persons from the spot and their
abscondance thereafter prove the factum of their special
knowledge about the contents in the bags loaded in the
truck and that establishes the conscious state of their mind.
7. Resisting the submission about the non-examination
of independent witnesses, namely, Labh Singh and
Harvinder Singh, it is contended by the learned counsel for
the State that as they were won over by the defence, the
prosecution though it appropriate not to examine them as
their witnesses and the same has been proven to be a fact,
for they have been examined as defence witnesses. As
regards non-compliance of Section 50 of the NDPS Act, it is
submitted by the learned counsel for the respondent-State
as the recovery was from a truck there was no need for
compliance of Section 50 of the NDPS Act.
8. First, we shall deal with the facet of test identification
parade. There is no dispute that the test identification
parade has not been held in this case. The two witnesses,
6namely, PW-2 and PW-3 have identified the
accused-appellants in court. As per their evidence they had
seen the accused-appellants in torch light and they had also
seen them running away. It has also come in the evidence
that they chased them but they could not be apprehended.
Learned trial Judge as well as the High Court has taken
note of the fact that it was 4:00 a.m. in the month of April
and, therefore, it was not all that dark and with the help of
torch light, they could have identified the accused persons.
The suggestion given to these witnesses is absolutely vague.
Nothing really has been elicited in the cross-examination to
discard the testimony of these witnesses.
9. In Matru v. State of U.P.1
, it has been held that the
identification test does not constitute substantive evidence
and it is primarily meant for the purpose of helping the
investigating agency with an assurance that their progress
with the investigation of an offence is proceeding on the
right lines.
1
(1971) 2 SCC 75
710. In Santokh Singh v. Izhar Hussain2
, it has been
observed that the identification can only be used as
corroborative of the statement in Court.
11. In Malkhan Singh & Others v. State of M.P.3
, it has
been held thus:-
“...... The identification parades belong to the
stage of investigation, and there is no provision in
the Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right
upon the accused to claim a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence
of identification in court. The weight to be
attached to such identification should be a
matter for the courts of fact.”
12. In this context, a reference to passage from
Visveswaran v. State4
, would be apt. It is as follows:-
“The identification of the accused either in test
identification parade or in Court is not a sine qua
non in every case if from the circumstances the
guilt is otherwise established. Many a time,
crimes are committed under the cover of
darkness when none is able to identify the
accused. The commission of a crime can be
proved also by circumstantial evidence.”
2
(1973) 2 SCC 406
3
(2003) 5 SCC 746
4
(2003) 6 SCC 73
813. In the case at hand, as the witnesses have identified
the accused-appellants in the Court and except giving a
bald suggestion that they have not seen the accused
persons, there is nothing in the cross-examination we are
disposed to accept the identification in Court. Hence, the
submission canvassed by the learned counsel for the
appellants on this score pales into insignificance.
14. The next ground of assail pertains to factum of
conscious possession. The submission of the learned
counsel for the appellants is that they were only moving in
the truck and had no knowledge what the bags contained.
As the evidence on record would show, two of the accused
persons were sitting by the side of the driver and the rest of
the accused persons were sitting on the body of the truck.
110 bags of poppy husk weighing 4180 kgs. were in the
truck. At the instance of the police when the truck was
stopped, had the accused-appellants no knowledge about
the contents of the bags, they would not have run away
from the spot. That apart, they absconded for few days
from their village. They have not taken the plea that they
9were taking any lift in the truck and their presence in the
truck has been proven by the prosecution. It is not a small
bag lying in the corner of the truck that the
accused-appellants can advance the plea that they were not
aware of it. In the instant case, there were 110 bags of
poppy husk being carried in the truck. Their presence
which has been proven, establishes their control over the
bags. The circumstances clearly establish that they were
aware of the poppy husk inside the bags and in such a
situation, it is difficult to accept that they were not in
conscious possession of the said articles.
15. In this context reference to the decision in Madan Lal
v. State of H.P.5
would be fruitful wherein it has been held
thus:-
“22. The expression “possession” is a
polymorphous term which assumes different
colours in different contexts. It may carry
different meanings in contextually different
backgrounds. It is impossible, as was observed in
Supdt. & Remembrancer of Legal Affairs, W.B. v.
Anil Kumar Bhunja6
to work out a completely
logical and precise definition of “possession”
uniformally applicable to all situations in the
context of all statutes.
5
(2003) 7 SCC 465
6
(1979) 4 SCC 274
1023. The word “conscious” means awareness
about a particular fact. It is a state of mind which
is deliberate or intended.
24. As noted in Gunwantlal v. State of M.P.7
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
possession is given holds it subject to that power
or control.
25. The word “possession” means the legal right
to possession (see Heath v. Drown8
). In an
interesting case 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 Caithness9
.)”
16. In Dharampal Singh v. State of Punjab10, it has
been ruled that the expression “possession” is not capable
of precise and complete logical definition of universal
application in the context of all the statutes. Recently, in
Mohan Lal v. State of Rajasthan11, after referring to
certain authorities, this Court has held as follows:-
7
(1972) 2 SCC 194
8
(1972) 2 All ER 561
9
(1976) 1 All ER 844
10 (2010) 9 SCC 608
11 (2015) 5 SCALE 330
11“From the aforesaid exposition of law it is quite
vivid that the term “possession” for the purpose
of Section 18 of the NDPS Act could mean
physical possession with animus, custody or
dominion over the prohibited substance with
animus or even exercise of dominion and control
as a result of concealment. The animus and the
mental intent which is the primary and
significant element to show and establish
possession. Further, personal knowledge as to
the existence of the “chattel” i.e. the illegal
substance at a particular location or site, at a
relevant time and the intention based upon the
knowledge, would constitute the unique
relationship and manifest possession. In such a
situation, presence and existence of possession
could be justified, for the intention is to exercise
right over the substance or the chattel and to act
as the owner to the exclusion of others. In the
case at hand, the appellant, we hold, had the
requisite degree of control when, even if the said
narcotic substance was not within his physical
control at that moment. To give an example, a
person can conceal prohibited narcotic substance
in a property and move out thereafter. The said
person because of necessary animus would be in
possession of the said substance even if he is not,
at the moment, in physical control. The
situation cannot be viewed differently when a
person conceals and hides the prohibited
narcotic substance in a public space. In the
second category of cases, the person would be in
possession because he has the necessary animus
and the intention to retain control and
dominion.”
17. In view of the aforesaid enunciation of law, once
possession is found, the accused is presumed to be in
12conscious possession as has been held in Ram Singh v.
Central Bureau of Narcotics12. If the accused takes a
stand that he was not in conscious possession, he has to
establish the same, as has been held in Dharampal Singh
(supra). As the materials brought on record would show,
the accused-appellants were sitting in the truck; their
presence in the truck has been clearly established; and they
had run away from the spot and absconded for some days
from the village. It is proven that there were 110 bags of
poppy husk in the truck and the accused-appellants were in
control of the articles in the truck. Therefore, there can be
no iota of doubt that they were in conscious possession of
the same. In view of the aforesaid analysis, we do not find
any force in the submission of the learned counsel for the
appellants.
18. The next contention that has been raised by the
learned counsel for the appellants relates to non-compliance
of Section 50 of the NDPS Act. It is undisputed that the
bags containing poppy husk were seized from the truck.
Thus, it is not a case of personal search of a person. In
12 (2011) 11 SCC 347
13Megh Singh v. State of Punjab13, it has been held that
Section 50 only applies in case of personal search of a
person, but it is not extended to a search of a vehicle or a
container or a bag or premises.
19. In State of H.P. v. Pawan Kumar14, it has been held
that:-
“10. We are not concerned here with the wide
definition of the word “person”, which in the legal
world includes corporations, associations or body
of individuals as factually in these type of cases
search of their premises can be done and not of
their person. Having regard to the scheme of the
Act and the context in which it has been used in
the section it naturally means a human being or
a living individual unit and not an artificial
person. The word has to be understood in a
broad common-sense manner and, therefore, not
a naked or nude body of a human being but the
manner in which a normal human being will
move about in a civilised society. Therefore, the
most appropriate meaning of the word “person”
appears to be — “the body of a human being as
presented to public view usually with its
appropriate coverings and clothing”. In a civilised
society appropriate coverings and clothings are
considered absolutely essential and no sane
human being comes in the gaze of others without
appropriate coverings and clothings. The
appropriate coverings will include footwear also
as normally it is considered an essential article to
be worn while moving outside one’s home. Such
appropriate coverings or clothings or footwear,
after being worn, move along with the human
13 (2003) 8 SCC 666
14 (2005) 4 SCC 350
14body without any appreciable or extra effort.
Once worn, they would not normally get detached
from the body of the human being unless some
specific effort in that direction is made. For
interpreting the provision, rare cases of some
religious monks and sages, who, according to the
tenets of their religious belief do not cover their
body with clothings, are not to be taken notice of.
Therefore, the word “person” would mean a
human being with appropriate coverings and
clothings and also footwear.
11. A bag, briefcase or any such article or
container, etc. can, under no circumstances, be
treated as body of a human being. They are given
a separate name and are identifiable as such.
They cannot even remotely be treated to be part
of the body of a human being. Depending upon
the physical capacity of a person, he may carry
any number of items like a bag, a briefcase, a
suitcase, a tin box, a thaila, a jhola, a gathri, a
holdall, a carton, etc. of varying size, dimension
or weight. However, while carrying or moving
along with them, some extra effort or energy
would be required. They would have to be carried
either by the hand or hung on the shoulder or
back or placed on the head. In common parlance
it would be said that a person is carrying a
particular article, specifying the manner in which
it was carried like hand, shoulder, back or head,
etc. Therefore, it is not possible to include these
articles within the ambit of the word “person”
occurring in Section 50 of the Act.”
15Similar view has been expressed in Jarnail Singh v.
State of Punjab15 and Ram Swaroop v. State
(Government of NCT of Delhi)16
.
20. In view of the aforesaid, the submission that
non-compliance of Section 50 vitiates the conviction, leaves
us unimpressed.
21. The last plank of submission of the learned counsel for
the appellants is that no independent witness has been
examined to substantiate the allegation of the prosecution.
It is worth to note that Labh Singh and Harvinder Singh
have not been examined by the prosecution. The
explanation has been offered that the investigating agency
was of the view that they had been won over. The said
explanation has been totally substantiated inasmuch as
they have been examined as defence witnesses. In such a
situation, no adverse inference can be drawn for
non-examination of the said witnesses. That apart, the case
of the prosecution cannot be rejected solely on the ground
that independent witnesses have not been examined when,
on the perusal of the evidence on record the Court finds
15 (2011) 3 SCC 521
16 (2014) 14 SCC 235
16that the case put forth by the prosecution is trustworthy.
When the evidence of the official witnesses are trustworthy
and credible, there is no reason not to rest the conviction on
the basis of their evidence. In this regard, it is profitable to
reproduce a passage from State (Govt. of NCT of Delhi) v.
Sunil17 which reads as follows:-
“We feel that it is an archaic notion that actions
of the police officer should be approached with
initial distrust. We are aware that such a notion
was lavishly entertained during the British period
and policemen also knew about it. Its hangover
persisted during post-independent years but it is
time now to start placing at least initial trust on
the actions and the documents made by the
police. At any rate, the court cannot start with
the presumption that the police records are
untrustworthy. As a proposition of law the
presumption should be the other way around.
That official acts of the police have been regularly
performed is a wise principle of presumption and
recognised even by the legislature. Hence when a
police officer gives evidence in court that a
certain article was recovered by him on the
strength of the statement made by the accused it
is open to the court to believe the version to be
correct if it is not otherwise shown to be
unreliable. It is for the accused, through
cross-examination of witnesses or through any
other materials, to show that the evidence of the
police officer is either unreliable or at least
unsafe to be acted upon in a particular case. If
the court has any good reason to suspect the
truthfulness of such records of the police the
court could certainly take into account the fact
17 (2001) 1 SCC 652
17that no other independent person was present at
the time of recovery. But it is not a legally
approvable procedure to presume the police
action as unreliable to start with, nor to jettison
such action merely for the reason that police did
not collect signatures of independent persons in
the documents made contemporaneous with
such actions.”
22. In the case at hand, the evidence is unimpeachable
and beyond reproach and the witnesses cited by the
prosecution can be believed and their evidence has been
correctly relied upon by the trial court and the High Court
to record a conviction. It is well settled in law that what is
necessary for proving the prosecution case is not the
quantity but the quality of the evidence.
23. In view of the aforesaid premised reasons, we do not
perceive any merit in this appeal and it is accordingly
dismissed.
.............................J.
[Dipak Misra]
.............................J.
[N.V. Ramana]
New Delhi
May 05, 2015
18
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