Himachal Pradesh High Court
Sachin And Another vs State Of Himachal Pradesh on 26 November, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.294 of 2018.
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Judgment reserved on: 12.11.2018.
Date of decision: 26th November, 2018.
Sachin and another .......Petitioners.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the Petitioners
r : Mr. N.S.Chandel, Advocate.
For the Respondent : Mr.Vinod Thakur and Mr. Sudhir
Bhatnagar, Additional Advocate
Generals.
Tarlok Singh Chauhan, Judge
Aggrieved by the framing of charges under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'Act') by the learned Special Judge-II, Mandi, on 03.07.2018, the petitioners have filed the instant revision petition.
2. The story of the prosecution, in brief, is that on 13.10.2017, Inspector/SHO Sunil Kumar, Police Station, Sadar, along with police officials of Police Station, Sadar, conducted 'nakabandi' at Sukki Baain, District Mandi. During 'nakabandi' at about 11.50 a.m., a Safari Storm bearing RC No. HR 10U-4794 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 27/11/2018 22:57:24 :::HCHP 2 came from Pandoh towards Mandi and the police team made a signal to stop the said vehicle for checking and during checking of .
vehicle four persons were found sitting there in the vehicle namely Sunil Kumar son of Sh. Sultan, R/o Village Salimsar Mazra, Post Office Bhatgaon, Tehsil and District Sonipat, Haryana, age 35 years(Owner/Driver of the vehicle), Rohtash son of Sh. Ved Singh, R/o VPO Rajpura, Tehsil Gannaur, District Sonipat, Haryana, age 33 years, Yoginder son of Sh. Shyam Lal, R/o VPO Dingal, Tehsil Beri, District Juhhjar, Haryana, age 22 years and Sachin son of Sh.
Surender Singh, R/o VPO Baland, Tehsil and District Rohtak, Haryana, age 23 years. During inquiry, above mentioned persons were enquired, but they did not respond properly and it was suspected that there was something illegal object in the said vehicle and during checking of vehicle, one parcel was found in the trunk (Dicky) of vehicle which contains 661 grams cannabis and another parcel was found from the luggage of Rohtash where 568 grams cannabis was found, the total weight of cannabis was found 1Kg 229 grams after weighing it on electronic weighing machine.
3. During the course of inquiry, necessary legal formalities were fulfilled and all the above four persons Sunil Kumar son of Sh.
Sultan, Rohtash son of Sh. Ved Singh, Yoginder son of Sh. Shyam Lal and Sachin son of Sh. Surender Singh, were arrested by the ::: Downloaded on - 27/11/2018 22:57:24 :::HCHP 3 local police for having conscious and exclusive possession of 1Kg 229 grams cannabis which was recovered from the said vehicle .
while they were travelling a vehicle bearing RC No. HR 10U-4794.
On this, a case FIR No. 275/2017 dated 13.10.2017 under Sections 20 and 29 of ND& PS Act was registered at Police Station, Sadar, against the above mentioned persons which were found transporting 1Kg 229 grams cannabis and all accused were having the knowledge of presence of cannabis in the vehicle.
4. After completion of the investigation, final report under Section 173 Cr.P.C. was presented before the Court and on the basis thereof, charges under Sections 20 and 29 of the Act came to be framed against the petitioners vide order dated 03.07.2018.
5. The order of framing of charges has been assailed by the petitioners on the ground that the said order is illegal as prima facie the prosecution has not been able to establish the conscious and exclusive or even joint possession of the contraband. There was no evidence collected by the prosecution to suggest that the petitioners had abetted the commission of offence or were party to the criminal conspiracy. More particularly, when it has come on record that both the petitioners did not know other co-accused and had in fact hired the premises of one Anju where they have been preparing for body building competition.
::: Downloaded on - 27/11/2018 22:57:24 :::HCHP 46. In support of their contentions, Shri N.S.Chandel, learned counsel for the petitioners have relied upon the following .
judgments:-
(i) Megh Singh versus State of Punjab, AIR 2003 SC 3184;
(ii) State of Punjab versus Hari Singh and others, (2009) 4 SCC 200;
(iii) Mohan Lal versus State of Rajasthan, (2015) 6 SCC 222.
7. In Megh Singh versus State of Punjab, AIR 2003 SC 3184, it was held by the Hon'ble Supreme Court that in order to make the possession illicit, there must be a conscious possession.
The expression "possession" is polymorphous term which assumes 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" uniformally applicable to all situations in the context of all statutes. Possession in a given case need not be physical possession but can be constructive. It was further held that the word "conscious" means awareness of a particular fact. It is a state of mind which is deliberate and intended. 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 ::: Downloaded on - 27/11/2018 22:57:24 :::HCHP 5 special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law.
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Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
8. In State of Punjab versus Hari Singh and others, (2009) 4 SCC 200, the Hon'ble Supreme Court held whether there was a conscious possession has to be determined with reference to the factual backdrop of each case. It was further held that unless the possession was coupled with requisite mental elements i.e. conscious possession and not mere custody without awareness of the nature of such possession, provisions of Section 15 of the Act are not attracted. It will not be out of place to mention that the Hon'ble Supreme Court while deciding this case had in fact relied upon the observations made in Megh Singh's case (supra).
9. In Mohan Lal versus State of Rajasthan, (2015) 6 SCC 222, the Hon'ble Supreme Court while dealing with a case under Section 9 of the Opium Act as well as Section 18 of the ND&PS Act held that the concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential ::: Downloaded on - 27/11/2018 22:57:24 :::HCHP 6 meaning of the word "possession". There is a degree of flexibility in the use of the said term and that is why the word "possession" can .
be usefully defined and understood with reference to the contextual purpose for the said expression. Over the years, Courts have refrained from adopting a doctrinaire approach towards defining possession. A functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy. Thus, the word "possession" in the context of any enactment would depend upon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object.
10. The term "possession" ordinarily consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element. The word "possession"
refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. It includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and ::: Downloaded on - 27/11/2018 22:57:24 :::HCHP 7 culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with .
statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act, 1985.
11. I have heard learned counsel for the parties and have gone through the material placed on record.
12. At the outset, it may be observed that there obviously cannot be any quarrel with the proposition laid down by the Hon'ble Supreme Court in the judgments relied upon by the learned counsel for the petitioners.
13. Therefore, what this Court prima facie is required to see is the requisite degree of control, even if, the narcotic substance is not held to be within the physical control of the petitioners at that moment. Evidently, it is the case of the prosecution that 568 grams of cannabis was found from the luggage of Rohtash, whereas, 661 grams of cannabis was found from the trunk (Dicky) or rather boot of the vehicle in which both the petitioners had been travelling. 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 ::: Downloaded on - 27/11/2018 22:57:24 :::HCHP 8 moment, in physical control. This was so held by the Hon'ble Supreme Court in Mohan Lal's case (supra) and the observations .
so made are apposite to the facts of the instant case. Once, the recovery is made from the vehicle in which the petitioners were found to be travelling, then it can prima facie be presumed that they had necessary animus and the intention to retain control and dominion over the contraband, unless there is something to show that they had been divested of it and that would be a subject matter of trial.
14. This Court need not to delve in detail further into this question or else it may cause grave and serious prejudice to the case of the parties, more particularly, to the case of the petitioners.
15. Having said so, I find no merit in this revision petition and the same is accordingly dismissed, so also the pending application, if any.
16. However, before parting, it is made clear that any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
26th November, 2018. (Tarlok Singh Chauhan) (krt) Judge ::: Downloaded on - 27/11/2018 22:57:24 :::HCHP