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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.         1393 OF 2010   

Mohan Lal ... Appellant

                               Versus

State of Rajasthan ...Respondent

J U D G M E N T

Dipak Misra, J.

Calling  in  question  the  legal  pregnability  of  the  

judgment and order dated 16.7.09 passed by the learned  

Single Judge of the High Court of Judicature of Rajasthan at  

Jodhpur whereby the learned Single Judge has affirmed the  

conviction and sentence recorded by the learned Additional  

Sessions  Judge,  Jodhpur  in  Sessions  Case  No.  9  of  1986  

convicting the appellant  under  Section 18 of  the Narcotic  

Drugs and Psychotropic Substances Act 1985 (for short, ‘the  

NDPS  Act’)  and  sentencing  him  to  suffer  rigorous

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imprisonment for 10 years and pay a fine of Rs. 1 lakh, in  

default, to suffer one year simple imprisonment and also for  

offence punishable under Sections 457 and 380 of the Indian  

Penal Code (IPC) and imposing separate sentences for the  

said offences with a stipulation that all the sentences would  

run concurrently.   

2. The relevant  facts  giving  rise  to  the  prosecution  are  

that on 13.11.1985, at 9.30 a.m., Bhanwarlal, PW-8, posted  

in the Court of the Magistrate, Osian, lodged an FIR, exhibit  

P-3, at Police Station, Osian informing that when he went to  

the Court to meet the night chowkidar, he was absent and it  

was  found  by  him  that  locks  of  the  main  gate  of  the  

malkhana were broken and the goods were scattered.  An  

information was given at the concerned police station, but  

as the details of the stolen articles could only be provided by  

the Criminal Clerk after he came from the Diwali holidays, an  

FIR was lodged for an offence under Section 457 IPC.  After  

the courts  reopened,  the Presiding Officer,  Ummed Singh,  

PW-6, on being informed, visited the premises, got malkhana  

articles  verified and got  an inventory  prepared by Narain  

Singh,  Criminal  Clerk,  in-charge  of  Malkhana,  PW-4,  on

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16.11.1985, and it was found that 10 kgs. 420 gms opium  

and some other articles were stolen from several packets.  In  

course of investigation, the accused Mohan Lal was arrested  

for the offence punishable under Sections 457 and 380 IPC.  

While in custody, it was informed by him that he had broke  

open the lock of the malkhana of the Court and stolen the  

opium and kept it in a white bag and concealed it in a pit  

dug  by  him  underneath  a  small  bridge  situate  between  

Gupal  Sariya and  Madiyai.   His  disclosure statement  has  

been  brought  on  record  as  Exhibit  P-14A.   The  accused-

appellant  led  to  discovery  in  presence  of  independent  

witnesses.  The bag and cloth were taken out by the accused  

digging the pit and the bag contained 10 kgs and 200 gms  

of opium as is reflected from seizure memo, Exhibit P-6.  200  

gms of opium was packed separately, sealed and sent for  

FSL examination.  The remaining substance and other items  

were separately sealed.  After receiving the FSL report and  

completing the investigation, chargesheet under Section 18  

of the NDPS act and Sections 457 and 380 of the IPC was  

filed before the appropriate Court and eventually the matter  

travelled to the Court of Session.  The accused pleaded not

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guilty and claimed to be tried.  

3. The prosecution, in order to substantiate the charges,  

examined 14 witnesses.   The main witnesses are Ummed  

Singh, PW-6, the concerned, Magistrate, Narain Singh, PW-4,  

the Criminal Clerk, in-charge of  Malkhana, ASI, Achlu Ram,  

PW-13, ASI Hanuman Singh, PW-3,  Koja Ram, PW-10, Gulab  

Singh, PW-14, and Su-Inspector-cum-SHO, Bheem Singh, PW-

12  are  witnesses  to  the  recovery.   The  FSL  report  was  

exhibited  as  Exhibit  P-14.   The  defence  chose  not  to  

examine any witness.

4. The learned trial  Judge, on the basis of the evidence  

brought on record, found the accused guilty of the charges  

and  accordingly  convicted  him,  as  has  been  stated  

hereinbefore.  In appeal, it was contended that incident, as  

per  the  prosecution,  had  occurred  between  12th/13th  

November,  1985 on which date the NDPS Act  was not  in  

force, for it came into force only on 14.11.1985 and hence,  

the offence was punishable under the Opium Act, 1878, (for  

short  ‘the  Opium Act’);  that  the  alleged recovery was on  

16.1.1985 while the appellant was in custody in connection  

with FIR No. 95 of 1986 and not in custody in connection

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with  this  case  i.e.  FIR  No.  96  of  1985;  that  recovery  of  

disclosure at the instance of the accused-appellant had not  

been proven and that he was never in possession of the said  

articles,  and that  there has been total  non-compliance of  

Section  42  and  57  of  the  NDPS  Act  and,  therefore,  the  

conviction was vitiated in law.  The High Court repelled all  

the submissions and affirmed the conviction and sentence  

as recorded by the learned trial Judge.  

5. We have heard Ms.  Aishwarya Bhati,  learned counsel  

for  the  appellant  and  Mr.  Shiv  Mangal  Sharma,  learned  

Additional Advocate General for the State of Rajasthan.    

6. First,  we shall  deal with the issue of possession.  The  

principal  submission of  Ms.  Bhati,  learned counsel  for  the  

appellant  is  that  the  appellant  cannot  be  convicted  and  

punished under the NDPS Act when admittedly the theft of  

contraband substance was prior to coming into force of the  

NDPS Act, for the FIR was lodged prior to coming into force  

of the NDPS Act.  Learned counsel would submit that offence  

of  possession  of  contraband  substance  also  commenced  

prior  to  coming  into  force  of  NDPS  Act  as  the  FIR  would  

clearly  reveal  that  the  theft  was  committed  on  the

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intervening night of 12th/13th November, 1985, whereas the  

NDPS Act came into force on 14.11.1985.  Learned counsel  

would  submit  that  the  recovery  of  opium  was  done  on  

16.1.1986 pursuant to the disclosure statement made by the  

accused-appellant  who  was  already  under  arrest  in  a  

different  matter  and  under  such  circumstances,  the  

appellant could not have been convicted under Section 18 of  

the NDPS Act, but should have been convicted under Section  

9 of the Opium Act.  Elaborating the said submission, the  

learned  counsel  has  contended  that  the  offence  of  

possession of contraband substance was punishable under  

both the laws but there is a huge difference in the sentence  

prescribed.  Under Section 9 of the Opium Act, the sentence  

was extendable to one year whereas under Section 18 of the  

NDPS Act, the prescribed punishment is minimum 10 years  

apart from imposition of huge fine.  Learned counsel would  

submit  that  it  is  the  settled  principle  of  criminal  

jurisprudence  that  the  accused  cannot  be  subject  to  an  

offence under a new Act which was not in force on the date  

of  theft  and  the  possession  of  contraband  articles,  as  a  

matter of fact, had taken place prior to coming into force of

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the NDPS Act.   She has commended us to the decision in  

Harjit Singh v. State of Punjab1.  Learned counsel would  

also contend that there can be rationalization of structure of  

punishment,  which  is  an  ameliorative  provision,  for  it  

reduces  the  punishment  and  the  same  can  be  made  

applicable to category of accused persons.  In that regard,  

she  has  drawn  inspiration  from  Rattan  Lal  v.  State  of  

Punjab2, T. Barai v. Henry Ah Hoe3, Basheer v. State of  

Kerala4 and  Pratap  Singh  v.  State  of  Jharkhand5.  

Pyramiding the said facet, it is urged by Ms. Bhati that in the  

instant case, the sentence being higher for the offence of  

possession under the NDPS Act, such a provision cannot be  

made retrospectively applicable to him.  To appreciate the  

said submission, it is appropriate to refer to Section 9 of the  

Opium Act.  It reads as follows:-

“9. Penalty for illegal cultivation poppy, etc.  Any person who, in contravention of this Act, or of  rules made and notified under section 5 or Section  8,-

(a)  possesses opium, or 1

 (2011) 4 SCC 441 2  AIR 1965 SC 444 3  (1983) 1 SCC 177 4  (2004) 3 SCC 609 5  (2005) 3 SCC 551

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(b)  transports opium, or (c)  imports or exports opium, or (d)  sells opium, or (e)   omits  to  warehouse  opium,  or  removes  or  does any act in respect of warehoused opium,  

And any person who otherwise contravenes any  such rule, shall, on conviction before a Magistrate,  be  punished  for  each  such  offence  with  imprisonment for a term which may extend to one  year,  or  with  fine  which  may  extend  to  one  thousand rupees, or with both;

And,  where  a  fine  is  imposed,  the  convicting  Magistrate  shall  direct  the  offender  to  be  imprisoned in default of payment of the fine for a  term which may extend to six months, and such  imprisonment  shall  be  in  excess  of  any  other  imprisonment  to  which  he  may  have  been  sentenced.”   

7. On a perusal of the aforesaid provision, the possession  

of opium is an offence and the sentence is imprisonment for  

a term which may extend to one year or with fine which may  

extend to Rs.1,000/- or both.  Section 18 of the NDPS Act  

provides  for  punishment  for  contravention  in  relation  to  

opium poppy and opium.  The provision as it stood at the  

relevant time read as follows:  

“18.  Punishment  for  contravention  in  relation  to  opium  poppy  and  opium.-  Whoever, in contravention of any provision of this  Act,  or  any  rule  or  order  made  or  condition  of  licence granted thereunder cultivates the opium  poppy  or  produces,  manufactures,  possesses,

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sells,  purchases,  transports,  imports  inter-State,  exports  inter-State  or  uses  opium  shall  be  punishable with rigorous imprisonment for a term  which shall not be less than ten years but which  may  extend  to  twenty-years  and  shall  also  be  liable to fine which shall not be less than one lakh  rupees but which may extend to two lakh rupees :

Provided that the Court may, for reasons to  be  recorded  in  the  judgment,  impose  a  fine  exceeding two lakh rupees.”    

8. When one conceives of  possession,  it  appears in the  

strict  sense  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 meaning of the word  

possession.   The classical theory of English law on the term  

“possession”  is  fundamentally  dominated  by  Savigny-ian  

“corpus” and “animus” doctrine.  Distinction has also been  

made in “possession in fact” and “possession in law” and  

sometimes between “corporeal possession” and “possession  

of  right”  which  is  called  “incorporeal  possession”.   Thus,  

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

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understood with reference to the contextual purpose for the  

said  expression.   The  word  possession  may  have  one  

meaning in one connection and another meaning in another.  

9. The term “possession” 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.    One of the definitions of  

possession given in Black’s Law dictionary is as follows:

“Having  control  over  a  thing  with  the  intent  to  have  and  to  exercise  such  control.   Oswald  v.  Weigel6.  The detention and control or the manual  or  ideal  custody,  of anything which may be the  subject of property, for one’s use and enjoyment,  either as owner or as the proprietor of a qualified  right in it, and either held personally or by another  who exercises it in one’s place and name.  Act or  state of possessing.  That condition of facts under  which one can exercise his power over a corporeal  thing at his pleasure to the exclusion of all other  persons.   The  law,  in  general,  recognizes  two  kinds  of  possession:  actual  possession  and  constructive possession.  A person who knowingly  has direct physical control over a thing, at a given  time, is then in actual possession of it. A person  who, although not in actual possession, knowingly  has  both  the  power  and  the  intention  at  given  time to exercise dominion or control over a thing,  either  directly  or  through  another  person  or  persons, is then in constructive possession of it.  The law recognizes also that possession may be  sole or joint.   If  one person alone has actual or  constructive possession of a thing, possession is  

6  219 Kan. 616, 549 p.2d 568, 569

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sole.   If  two  or  more  persons  share  actual  or  constructive possession of a thing, possession is  joint.”

In the said dictionary, the term “possess” in the context  of narcotic drug law means:-

“Term “possess.” Under narcotic drug laws, means  actual control, care and management of the drug.  Collini v. State7. Defendant ‘possesses’ controlled  substance when defendant knows of substance’s  presence,  substance  is  immediately  accessible,  and  defendant  exercises  “dominion  or  control”  over substance. State v. Hornaday8.”

And again “Possession as necessary for conviction of offense  of possession of controlled substances with intent  to  distribute  may  be  constructive  as  well  as  actual, U.S. v. Craig9; as well as joint or exclusive,  Garvey v. State10.  The defendants must have had  dominion  and  control  over  the  contraband  with  knowledge of its presence and character.  U.S, v.  Morando-Alvarez11.  

Possession,  as  an  element  of  offense  of  stolen  goods,  is  not  limited  to  actual  manual  control  upon or about the person, but extends to things  under  one’s  power  and  dominion.  McConnell  v.  State12.

Possession  as  used  in  indictment  charging  possession  of  stolen  mail  may  mean  actual  possession  or  constructive  possession.   U.S.  v.  

7  Tex. Cr. App. 487 S.W. 2d 132, 135 8  105 Wash. 2d 120, 713 p.2d 71, 74 9  C.A. Tenn, 522 F.2d 29, 31 10 176 Ga. App, 268, 335 S.E.2d 640, 647 11 C.A. Ariz, 520 F.2d 882, 884 12  48 Ala.App.  523, 266 So.2d 328, 333

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Ellison13.

To  constitute  “possession”  of  a  concealable  weapon under statue proscribing possession of a  concealable weapon by a felon, it is sufficient that  defendant  have  constructive  possession  and  immediate  access  to  the  weapon.  State  v.  Kelley14.”   

10. In  Stroud’s  dictionary,  the term possession has been  defined as follows:

“”Possession” (Drugs (Prevention of Misuse) Act 1964  (c. 64), s.1 (1)).  A person does not lose “possession” of  an article  which is  mislaid  or  thought  erroneously  to  have  been  destroyed  or  disposed  of,  if,  in  fact,  it  remains in his care and control (R. v. Buswell15).

11. Dr.  Harris,  in  his  essay  titled  “The  Concept  of  

Possession  in  English  Law16”  while  discussing  the  various  

rules relating to possession has stated that “possession” is a  

functional  and  relative  concept,  which  gives  the  Judges  

some discretion in applying abstract rule to a concrete set of  

facts.   The  learned  author  has  suggested  certain  factors  

which have been held to be relevant to conclude whether a  

person  has  acquired  possession  for  the  purposes  of  a  

particular rule of law.  Some of the factors enlisted by him  

are; (a) degree of physical control exercised by person over  13  C.A. Cal., 469 F.2d 413, 415 14 12 Or.APP. 496 507 P.2d 837, 837 15 [1972] 1 W.L.R. 64 16  Published in “Oxford Essays on Jurisprudence” (Edited by A G Guest, First Series,  Clarendon Press,  

    Oxford.

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a thing,  (b)  knowledge of  the person claiming possessory  

rights over a thing, about the attributes and qualities of the  

thing, (c) the persons’ intention in regard to the thing, that  

is, ‘animus possessionis’ and ‘animus domini’, (d) possession  

of  land  on  which  the  thing  is  claimed  is  lying;  also  the  

relevant intention of the occupier of a premises on which the  

thing is lying thereon to exclude others from enjoying the  

land  and  anything  which  happens  to  be  lying  there;  and  

Judges’ concept of the social purpose of the particular rule  

relied upon by the plaintiff.  The learned author has further  

proceeded to state that quite naturally the policies behind  

different possessory rules will vary and it would justify the  

courts giving varying weight to different factors relevant to  

possession  according  to  the  particular  rule  in  question.  

According to Harris,  the Judges have at  the back of  their  

mind a perfect pattern in which the possessor has complete,  

exclusive  and  unchallenged  physical  control  over  the  

subject;  full  knowledge  of  its  existence;  attributes  and  

location, and a manifest intention to act as its owner and  

exclude  all  others  from  it.   As  a  further  statement  he  

elucidates  that  courts  realise  that  justice  and expediency

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compel  constant  modification  of  the  ideal  pattern.   The  

person claiming possessory rights over a thing may have a  

very limited degree of physical control over the object or he  

may  have  no  intention  in  regard  to  an  object  of  whose  

existence he is unaware of, though he exercises control over  

the same or he may have clear intention to exclude other  

people from the object, though he has no physical control  

over the same.  In all this variegated situation, states Harris,  

the person concerned may still be conferred the possessory  

rights.   The purpose of referring to the aforesaid principles  

and passages is that over the years, it has been seen that  

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.  

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12. 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  and  that  the  word  

“possession” refers to a mental state as is noticeable from  

the language employed in Section 35 of the NDPS Act.  The  

said provision reads as follows:-  

“35. Presumption of culpable mental state. –  (1) In any prosecution for an offence under this  Act which requires a culpable mental state of the  accused, the Court shall presume the existence of  such mental state but it shall be a defence for the  accused to  prove the fact  that  he had no such  mental state with respect to the act charged as an  offence in that prosecution.

Explanation.  – In this section “culpable mental  state” includes intention, motive, knowledge, of a  fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to  be proved only when the Court believes it to exist  beyond a reasonable doubt and not merely when  its existence is established by a preponderance of  probability.”

On a perusal of the aforesaid provision, it  is plain as  

day that it includes knowledge of a fact.  That apart, Section  

35  raises  a  presumption  as  to  knowledge  and  culpable  

mental  state  from  the  possession  of  illicit  articles.  The

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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.  

13. In Noor Aga v. State of Punjab and Anr.17, the Court  

noted  Section  35  of  the  NDPS  Act  which  provides  for  

presumption of culpable mental state and further noted that  

it also provides that the accused may prove that he had no  

such mental  state with  respect  to  the act  charged as  an  

offence under the prosecution.  The Court also referred to  

Section 54 of the NDPS Act which places the burden to prove  

on  the  accused  as  regards  possession  of  the  contraband  

articles on account of the same satisfactorily.  Dealing with  

the constitutional validity of Section 35 and 54 of the NDPS  

Act, the Court ruled thus:-

“The provisions of Section 35 of the Act as also  Section 54 thereof, in view of the decisions of this  Court,  therefore,  cannot  be  said  to  be  ex  facie  unconstitutional.  We would,  however,  keeping in  view the principles noticed hereinbefore, examine  the  effect  thereof  vis-à-vis  the  question  as  to  whether  the  prosecution  has  been  able  to  discharge its burden hereinafter.”

17  (2008) 16 SCC 417

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And thereafter proceeded to state that:-

“58. Sections 35 and 54 of the Act, no doubt, raise  presumptions with regard to the culpable mental  state on the part of the accused as also place the  burden of proof in this behalf on the accused; but  a bare perusal of the said provision would clearly  show that presumption would operate in the trial  of  the  accused  only  in  the  event  the  circumstances  contained  therein  are  fully  satisfied.  An  initial  burden  exists  upon  the  prosecution  and  only  when  it  stands  satisfied,  would  the  legal  burden  shift.  Even  then,  the  standard  of  proof  required  for  the  accused  to  prove his innocence is not as high as that of the  prosecution.  Whereas  the  standard  of  proof  required to prove the guilt of the accused on the  prosecution is “beyond all reasonable doubt” but  it  is  “preponderance  of  probability”  on  the  accused.  If  the  prosecution  fails  to  prove  the  foundational facts so as to attract the rigours of  Section  35  of  the  Act,  the  actus  reus  which  is  possession of contraband by the accused cannot  be said to have been established.

59. With  a  view to  bring within  its  purview the  requirements of Section 54 of the Act, element of  possession of the contraband was essential so as  to shift the burden on the accused. The provisions  being  exceptions  to  the  general  rule,  the  generality thereof would continue to be operative,  namely, the element of possession will have to be  proved beyond reasonable doubt.”

14. In Bhola Singh v. State of Punjab18, the Court, after  

referring to  the  pronouncement  in  Noor  Aga (supra),  

18 (2011) 11 SCC 653

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concurred  with  the  observation  that  only  after  the  

prosecution has discharged the initial burden to prove the  

foundational  facts,  then only  Section 35 would come into  

play.  While dislodging the conviction, the Court stated:-

“ …. it is apparent that the initial burden to prove  that  the  appellant  had  the  knowledge  that  the  vehicle he owned was being used for transporting  narcotics still lay on the prosecution, as would be  clear from the word “knowingly”, and it was only  after  the  evidence  proved  beyond  reasonable  doubt  that  he  had  the  knowledge  would  the  presumption  under  Section 35 arise.  Section  35  also presupposes that the culpable mental state  of an accused has to be proved as a fact beyond  reasonable  doubt  and  not  merely  when  its  existence  is  established  by  a  preponderance  of  probabilities.  We  are  of  the  opinion  that  in  the  absence  of  any  evidence  with  regard  to  the  mental  state  of  the  appellant  no  presumption  under Section 35 can be drawn. The only evidence  which  the  prosecution  seeks  to  rely  on  is  the  appellant’s  conduct  in  giving  his  residential  address in Rajasthan although he was a resident  of  Fatehabad  in  Haryana  while  registering  the  offending  truck  cannot  by  any  stretch  of  imagination fasten him with the knowledge of its  misuse by the driver and others.”

15. Having noted the approach in the aforesaid two cases,  

we may take note of the decision in  Dharampal Singh v.  

State  of  Punja19,  when  the  Court  was  referring  to  the  

expression “possession” in the context of Section 18 of the  

19  (2010) 9 SCC 608

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NDPS Act.  In the said case opium was found in the dicky of  

the  car  when  the  appellant  was  driving  himself  and  the  

contention  was  canvassed  that  the  said  act  would  not  

establish  conscious  possession.   In  support  of  the  said  

submission, reliance was placed on  Avtar Singh v. State  

of Punjab20 and Sorabkhan Gandhkhan Pathan v. State  

of  Gujarat21.   The Court,  repelling  the  argument,  opined  

thus:-

“12. We  do  not  find  any  substance  in  this  submission of the learned counsel. The appellant  Dharampal  Singh  was  found  driving  the  car  whereas appellant Major Singh was travelling with  him and from the dicky of the car 65 kg of opium  was  recovered.  The  vehicle  driven  by  the  appellant Dharampal Singh and occupied by the  appellant  Major  Singh  is  not  a  public  transport  vehicle. It is trite that to bring the offence within  the mischief of Section 18 of the Act possession  has to be conscious possession. The initial burden  of proof of possession lies on the prosecution and  once it is discharged legal burden would shift on  the accused. Standard of proof expected from the  prosecution  is  to  prove  possession  beyond  all  reasonable  doubt  but  what  is  required  to  prove  innocence  by  the  accused  would  be  preponderance of probability. Once the plea of the  accused  is  found  probable,  discharge  of  initial  burden by the prosecution will  not nail him with  offence.  Offences  under  the  Act  being  more  serious  in  nature  higher  degree  of  proof  is  required to convict an accused.

20  (2002) 7 SCC 419 21  (2004) 13 SCC 608

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13. It  needs  no  emphasis  that  the  expression  “possession”  is  not  capable  of  precise  and  completely  logical  definition  of  universal  application  in  the  context  of  all  the  statutes.  “Possession” is a polymorphous word and cannot  be uniformly applied, it assumes different colour  in different context. In the context of Section 18 of  the  Act  once  possession  is  established  the  accused, who claims that it was not a conscious  possession has to establish it because it is within  his special knowledge.

xxx xxx xxx xxx

15. From  a  plain  reading  of  the  aforesaid  it  is  evident  that  it  creates  a  legal  fiction  and  presumes  the  person  in  possession  of  illicit  articles to have committed the offence in case he  fails  to  account for  the possession satisfactorily.  Possession is a mental state and Section 35 of the  Act gives statutory recognition to culpable mental  state.  It  includes  knowledge  of  fact.  The  possession, therefore, has to be understood in the  context thereof and when tested on this anvil, we  find  that  the  appellants  have  not  been  able  to  satisfactorily account for the possession of opium. 16. Once possession is established the court can  presume that  the  accused  had  culpable  mental  state  and  have  committed  the  offence.  In  somewhat  similar  facts  this  Court  had  the  occasion to consider this question in Madan Lal v.  State of H.P.22, wherein it has been held as follows:  (SCC p. 472, paras 26-27)

“26.  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  

22 (2003) 7 SCC 465

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within his special  knowledge.  Section 35 of  the Act gives a statutory recognition of this  position  because  of  the  presumption  available  in  law.  Similar  is  the  position  in  terms of Section 54 where also presumption  is available to be drawn from possession of  illicit articles.

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

16. 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

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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.  As the factual matrix would exposit, the accused-

appellant was in possession of the prohibited or contraband  

substance which was an offence when the NDPS Act came  

into  force.   Hence,  he  remained  in  possession  of  the  

prohibited substance and as such offence under Section 18  

of the NDPS Act is made out.  The possessory right would  

continue  unless  there  is  something  to  show  that  he  had

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been divested of it.  On the contrary, as we find, he led to  

discovery  of  the  substance  which  was  within  his  special  

knowledge, and, therefore, there can be no scintilla of doubt  

that he was in possession of the contraband article when the  

NDPS Act came into force.  To clarify the situation, we may  

give an example.  A person had stored 100 bags of opium  

prior to the NDPS Act coming into force and after coming  

into force, the recovery of the possessed article takes place.  

Certainly, on the date of recovery, he is in possession of the  

contraband article and possession itself  is  an offence.   In  

such a situation, the accused-appellant cannot take the plea  

that he had committed an offence under Section 9 of the  

Opium Act and not under Section 18 of the NDPS Act.  

17. After dealing with the concept of possession, we think it  

apt to address the issue raised by the learned counsel for  

the appellant that he could have convicted and sentenced  

under the Opium Act, as that was the law in force at the  

time  of  commission  of  an  offence  and  if  he  is  convicted  

under Section 18 of the NDPS Act, it would tantamount to  

retrospective  operation  of  law  imposing  penalty  which  is  

prohibited under Article 20(1) of the Constitution of India.

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Article  20(1)  gets  attracted  only  when  any  penal  law  

penalises with retrospective effect i.e. when an act was not  

an  offence  when  it  was  committed  and  additionally  the  

persons cannot be subjected to penalty greater  than that  

which might have been inflicted under the law in force at the  

time of  commission  of  the  offence.   The  Article  prohibits  

application  of  ex  post  facto  law.   In  Rao Shiv Bahadur  

Singh and  Anr.  v.  State  of  Vindhya  Pradesh23,  while  

dealing  with  the  import  under  Article  20(1)  of  the  

Constitution  of  India,  the  Court  stated  what  has  been  

prohibited  under  the  said  Article  is  the  conviction  and  

sentence in a criminal proceeding under ex post facto law  

and not the trial thereof.  The Constitution Bench has held  

that:-

“....  what  is  prohibited  under  Article  20  is  only  conviction  or  sentence under  an ‘ex  post  facto’  law and not the trial thereof.  Such trial under a  procedure  different  from  what  obtained  at  the  time of  the  commission  of  the  offence  or  by  a  Court different from that which had competence  at  the  time  cannot  ‘ipso  facto’  be  held  to  be  unconstitutional.   A  person  accused  of  the  commission of a particular Court or by a particular  procedure, except in so far as any constitutional  objection by way of discrimination or the violation  of any other fundamental right may be involved.”  

23  AIR 1953 SC 394

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In  the  instant  case,  Article  20(1)  would  have  no  

application.  The actus of possession is not punishable with  

retrospective affect.   No offence is created under Section 18  

of  the  NDPS  Act  with  retrospective  effect.   What  is  

punishable is possession of the prohibited article on or after  

a particular date when the statute was enacted, creating the  

offence or enhancing the punishment.  Therefore, if a person  

is in possession of the banned substance on the date when  

the NDPS Act was enforced, he would commit the offence,  

for on the said date he would have both the ‘corpus’ and  

‘animus’ necessary in law.  

18. We would be failing in our duty, if we do not analyse  

the decision in  Harjit Singh (supra).  In the said case the  

Court  was  dealing  with  the  Notification  dated  18.11.2009  

that  has  replaced  the  part  of  the  Notification  dated  

19.10.2001.   Dealing with the said aspect, the Court held:-

“13. Notification dated 18-11-2009 has replaced  the  part  of  the  Notification  dated  19-10-2001  and reads as under:

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“In the Table at the end after Note 3, the  following Note shall be inserted, namely:

(4) The quantities shown in Column 5  and Column 6 of the Table relating to the  respective  drugs  shown  in  Column  2  shall apply to the entire mixture or any  solution  or  any  one  or  more  narcotic  drugs or psychotropic substances of that  particular  drug  in  dosage  form  or  isomers,  esters,  ethers  and  salts  of  these  drugs,  including  salts  of  esters,  ethers and isomers, wherever existence  of  such  substance  is  possible  and  not  just its pure drug content.”

14. Thus, it is evident that under the aforesaid  notification,  the  whole  quantity  of  material  recovered  in  the  form  of  mixture  is  to  be  considered  for  the  purpose  of  imposition  of  punishment.  However,  the  submission  is  not  acceptable  as  it  is  a  settled  legal  proposition  that a penal provision providing for enhancing  the sentence does not operate retrospectively.  This  amendment,  in  fact,  provides  for  a  procedure  which  may  enhance  the  sentence.  Thus,  its  application  would  be  violative  of  restrictions  imposed  by  Article  20  of  the  Constitution of India. We are of the view that the  said  Notification  dated  18-11-2009  cannot  be  applied  retrospectively  and  therefore,  has  no  application  so  far  as  the  instant  case  is  concerned.”

The present fact situation is absolutely different and,  

therefore, the said decision has no applicability to the case  

at hand.

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19. Learned counsel for the State has contended that the  

offence in question is a continuing offence, for the offence is  

basically a possession of the contraband articles.   He has  

commended  us  to  the  authority  in  State  of  Bihar  v.  

Deokaran Nenshi & Anr.24, wherein it has been held that:-  

“A continuing offence is one which is susceptible  of continuance and is distinguishable from the one  which is committed once and for all. It is one of  those  offences  which  arises  out  of  a  failure  to  obey or comply with a rule or its requirement and  which  involves  a  penalty,  the  liability  for  which  continues  until  the  rule  or  its  requirement  is  obeyed or complied with. On every occasion that  such disobedience or non-compliance occurs and  reoccurs,  there  is  the  offence  committed.  The  distinction between the two kinds of offences is  between an act or omission which constitutes an  offence once and for all  and an act or omission  which continues, and therefore, constitutes a fresh  offence  every  time  or  occasion  on  which  it  continues.  In  the  case  of  a  continuing  offence,  there is thus the ingredient of continuance of the  offence which is absent in the case of an offence  which  takes  place  when  an  act  or  omission  is  committed once and for all.”

20. Mr. Shiv  Mangal  Sharma,  learned AAG for  the  State  

has also drawn inspiration from Udai Shankar Awasthi v.  

State of Uttar Pradesh and Anr.25  In the said case, while  

dealing  with  the  concept  of  continuing  offence,  after  

24  (1972) 2 SCC 890 25  (2013) 2 SCC 435

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referring to Section 472 of Criminal Procedure Code, 1973,  

(CrPC) the Court has stated that the expression “continuing  

offence” has not been defined in CrPC because it is one of  

those expressions which does not have a fixed connotation  

and, therefore, the formula of universal application cannot  

be  formulated  in  this  respect.   The  court  referred  to  

Balakrishna  Savalram  Pujari  Waghmare  v.  Shree  

Dhyaneshwar  Maharaj  Sansthan26,  Gokak  Patel  

Volkart  Ltd.  v.  Dundayya  Gurushiddaiah  Hiremath27  

and eventually held thus:  

“Thus, in view of the above, the law on the issue  can be summarised to the effect that, in the case  of  a  continuing  offence,  the  ingredients  of  the  offence continue i.e. endure even after the period  of  consummation,  whereas  in  an  instantaneous  offence, the offence takes place once and for all  i.e. when the same actually takes place. In such  cases, there is no continuing offence, even though  the damage resulting from the injury  may itself  continue.”

21. In this context, it would be fruitful to refer to a three-

Judge Bench decision in Maya Rani Punj v. Commissioner  

of  Income  Tax,  Delhi28.   In  the  said  case,  the  Court  

approved what has been said by the High Court of Bombay  26  AIR 1959 SC 798 27  (1991) 2 SCC 141 28  (1986) 1 SCC 445

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in  State  v.  A.H.  Bhiwandhiwalia29.   For  the  sake  of  

completeness, we reproduce the relevant paragraph:-

“In  State v.  A.H.  Bhiwandiwalla (a  decision  referred  to  in  CWT  v.  Suresh  Seth30),  Gajendragadkar,  J.  (as  he  then  was),  after  quoting the observations of Beaumount, C.J. in  an  earlier  Full  Bench  decision  of  that  Court  observed:

“Even so,  this  expression has acquired a  well-recognised meaning in criminal law. If  an  act  committed  by  an  accused person  constitutes  an  offence  and  if  that  act  continues from day to day, then from day  to day a fresh offence is committed by the  accused  so  long  as  the  act  continues.  Normally  and  in  the  ordinary  course  an  offence  is  committed  only  once.  But  we  may  have  offences  which  can  be  committed  from  day  to  day  and  it  is  offences falling in this latter category that  are described as continuing offences.””

22. We have  dwelled   upon  the  said  submission,  as  the  

learned counsel for the State has seriously addressed that it  

is a continuing offence.  We have already opined that on the  

date the NDPS Act came into force, the accused-appellant  

was still  in possession of the contraband article.   Thus,  it  

was possession in continuum and hence, the principle with  

regard to continuing offence gets attracted.  

29  AIR 1955 Bom 161 30  (1981) 2 SCC 790

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23. It is submitted by Ms. Aishwarya Bhati, learned counsel  

for  the  appellant  that  there  has  been  non-compliance  of  

Section  42 of  the  NDPS Act  and hence,  the  conviction  is  

vitiated.  It is urged by her that the Investigating Officer has  

not reduced the information to writing and has also not led  

any evidence of having made a full report to his immediate  

official superior.  The High Court has taken note of the fact  

that information given to Bheem Singh, PW-12, and recovery  

was made by him who was the Sub-Inspector and SHO at the  

police station.  That apart, in this context, we may refer with  

profit to the Constitution Bench decision in  Karnail Singh  

v.  State  of  Haryana31,  wherein  the  issue  emerged  for  

consideration  is  whether  Section  42  of  the  NDPS  Act  is  

mandatory  and  failure  to  take  down  the  information  in  

writing  and  forthwith  sending  a  report  to  his  immediate  

officer superior would cause prejudice to the accused.  The  

Court  was  required  to  reconcile  the  decisions  in  Abdul  

Rashid Ibrahim Mansuri v. State of Gujarat32 and Sajan  

Abraham v. State of Kerala33.   The Constitution Bench  

31  (2009) 8 SCC 539 32  (2000) 2 SCC 513 33  (2001) 6 SCC 692

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explaining the position opined that  Abdul Rashid (supra)  

did  not  require  about  literal  compliance  with  the  

requirements  of  Section  42(1)  and  42(2)  nor  did  Sajan  

Abraham (supra)  hold  that  requirement  of  Section  42(1)  

and 42(2)  need  not  be  fulfilled  at  all.   The larger  Bench  

summarized the effect of two decisions.  The summation is  

reproduced below:-

“(a) The officer on receiving the information of the  nature referred to in sub-section (1) of Section 42  from any person had to record it in writing in the  register concerned and forthwith send a copy to  his immediate official superior, before proceeding  to  take action  in  terms of  clauses  (a)  to  (d)  of  Section 42(1).

(b) But if the information was received when the  officer was not in the police station, but while he  was  on  the  move  either  on  patrol  duty  or  otherwise,  either  by  mobile  phone,  or  other  means,  and the  information calls  for  immediate  action and any delay would have resulted in the  goods or evidence being removed or destroyed, it  would not be feasible or practical to take down in  writing  the  information  given  to  him,  in  such  a  situation, he could take action as per clauses (a)  to (d) of Section 42(1) and thereafter, as soon as  it  is  practical,  record  the  information  in  writing  and  forthwith  inform  the  same  to  the  official  superior.

(c)  In  other  words,  the  compliance  with  the  requirements  of  Sections  42(1)  and  42(2)  in  regard to writing down the information received

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and sending a copy thereof to the superior officer,  should  normally  precede the  entry,  search  and  seizure by the officer. But in special circumstances  involving  emergent  situations,  the  recording  of  the  information  in  writing  and  sending  a  copy  thereof to the official superior may get postponed  by a reasonable period, that is, after the search,  entry and seizure. The question is one of urgency  and expediency.

(d) While total non-compliance with requirements  of  sub-sections  (1)  and  (2)  of  Section  42  is  impermissible,  delayed  compliance  with  satisfactory  explanation  about  the  delay  will  be  acceptable  compliance  with  Section  42.  To  illustrate, if any delay may result in the accused  escaping  or  the  goods  or  evidence  being  destroyed or removed, not recording in writing the  information  received,  before  initiating  action,  or  non-sending of a copy of such information to the  official superior forthwith, may not be treated as  violation of Section 42. But if the information was  received when the police officer was in the police  station with sufficient time to take action, and if  the  police  officer  fails  to  record  in  writing  the  information  received,  or  fails  to  send  a  copy  thereof, to the official superior, then it will  be a  suspicious circumstance being a clear violation of  Section 42 of the Act. Similarly, where the police  officer does not record the information at all, and  does not inform the official  superior  at all,  then  also it will be a clear violation of Section 42 of the  Act.  Whether  there  is  adequate  or  substantial  compliance with Section 42 or not is a question of  fact  to  be  decided  in  each  case.  The  above  position got strengthened with the amendment to  Section 42 by Act 9 of 2001.”

24. In  Rajinder  Singh  v.  State  of  Haryana34,  placing  

34  (2011) 8 SCC 130

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reliance on the Constitution Bench, it has been opined that  

total non-compliance with the provisions of sub-sections (1)  

and (2) of Section 42 of the Act is impermissible but delayed  

compliance with satisfactory explanation for the delay can,  

however, be countenanced.

25. In the present case, the High Court has noted that the  

information  was  given  to  the  competent  authority.   That  

apart, the High Court has further opined that in the case at  

hand  Section  43  applies.   Section  43  of  the  NDPS  Act  

contemplates seizure made in the public place.   There is a  

distinction between Section 42 and Section 43 of the NDPS  

Act.  If a search is made in a public place, the officer taking  

the search is not required to comply with sub Sections (1)  

and (2) of Section 42 of the NDPS Act.  As has been stated  

earlier,  the  seizure  has  taken  place  beneath  a  bridge  of  

public road accessible to public.  The officer, Sub-Inspector  

is an empowered officer under Section 42 of the Act.  As the  

place is a public place and Section 43 comes into play, the  

question of non-compliance of Section 42(2) does not arise.  

The  aforesaid  view  gets  support  from  the  decisions  in  

Directorate of Revenue and Anr. v. Mohammed Nisar

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Holia35 and State, NCT of Delhi v. Malvinder Singh36.  

26. Learned counsel for the appellant has also contended  

that  there has been non-compliance of  Section 57 of  the  

NDPS Act, which reads as follows:-

“Report  of  arrest  and  seizure  –  Whenever  any  person makes any arrest or seizure under this Act,  he shall,  within fortyeight  hours next  after  such  arrest  or  seizure,  make  a  full  report  of  all  the  particulars  of  such  arrest  or  seizure  to  his  immediate official superior.”  

27. A  three-Judge  Bench  in  Sajan  Abraham (supra),  

placing reliance on State of Punjab v. Balbir Singh37, has  

held that Section 57 is not mandatory in nature and when  

substantial  compliance  is  made,  it  would  not  vitiate  the  

prosecution  case.   In  Karnail  Singh (supra),  the  

Constitution Bench, while explaining the ratio laid down in  

Sajan  Abraham  (supra),  analysed  the  requirement  of  

Section  42(1)  and  42(2)  and  opined  that  the  said  

pronouncement never meant that those provisions need not  

be fulfilled at all.  However, the Constitution Bench has not  

delved into the facet of Section 57 of the NDPS Act.

28. In  Kishan Chand v. State of Haryana38,  the Court  35  (2008) 2 SCC 370 36  (2007) 11 SCC 314 37  (1994) 3 SCC 299 38  (2013) 2 SCC 502

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while dealing with the compliance of Sections 42, 50 and 57,  

has opined thus:-

“21. When  there  is  total  and  definite  non- compliance  with  such  statutory  provisions,  the  question of prejudice loses its significance. It will  per  se  amount  to  prejudice.  These  are  indefeasible, protective rights vested in a suspect  and  are  incapable  of  being  shadowed  on  the  strength of substantial compliance.

22. The purpose of these provisions is to provide  due  protection  to  a  suspect  against  false  implication and ensure that these provisions are  strictly  complied  with  to  further  the  legislative  mandate of fair investigation and trial.  It  will  be  opposed  to  the  very  essence  of  criminal  jurisprudence, if upon apparent and admitted non- compliance with these provisions in their entirety,  the  court  has  to  examine  the  element  of  prejudice.  The  element  of  prejudice  is  of  some  significance where provisions are directory or are  of  the  nature  admitting  substantial  compliance.  Where  the  duty  is  absolute,  the  element  of  prejudice  would  be  of  least  relevance.  Absolute  duty coupled with strict compliance would rule out  the element of prejudice where there is total non- compliance with the provision.”

After  so stating,  the Court  proceeded to  address  the  

separate rights and protection under the said provisions and  

in that context ruled:-

“Reliance  placed  by  the  learned  counsel  appearing  for  the  State  on  Sajan  Abraham is  entirely  misplaced,  firstly  in  view  of  the  Constitution  Bench  judgment  of  this  Court  in

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Karnail  Singh.  Secondly,  in  that  case  the  Court  was  also  dealing  with  the  application  of  the  provisions  of  Section  57  of  the  Act  which  are  worded  differently  and  have  different  requirements, as opposed to Sections 42 and 50  of the Act. It is not a case where any reason has  come in evidence as to why the secret information  was not reduced to writing and sent to the higher  officer, which is the requirement to be adhered to  “pre-search”.  The  question  of  sending  it  immediately  thereafter  does  not  arise  in  the  present  case,  as  it  is  an  admitted  position that  there is total  non-compliance with Section 42 of  the Act. The sending of report as required under  Section  57  of  the  Act  on  20-7-2000  will  be  no  compliance, factually and/or in the eye of the law  to the provisions of Section 42 of the Act. These  are separate rights and protections available to an  accused and their compliance has to be done in  accordance with the provisions of Sections 42, 50  and 57 of the Act. They are neither interlinked nor  interdependent so as to dispense compliance of  one with the compliance of another. In fact, they  operate in different fields and at different stages.  That  distinction  has  to  be  kept  in  mind  by  the  courts while deciding such cases.”

29. In the instant  case,  on perusal  of  the evidence,  it  is  

clear that there has been substantial compliance of Section  

57 of the NDPS Act and, therefore, the question of prejudice  

does not arise.   

30. Ms.  Bhati,  learned counsel  for  the appellant has also  

contended that the appellant was in custody in connection  

with FIR no. 95 of 1985 and while in custody, he suffered a

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disclosure statement and led to discovery of the contraband  

articles.  Submission of the learned counsel for the appellant  

is  that the said statement cannot be taken aid of for  the  

purpose of discovery in connection with the present case.  It  

is demonstrable from the factual matrix that in connection  

with FIR No. 95 of 1985, he was arrested and while he was  

interrogated,  he  led  to  discovery  in  connection  with  the  

stolen contraband articles from the malkhana which was the  

matter of investigation in FIR no. 96 of 1985.  There is no  

shadow of doubt that the accused-appellant was in police  

custody.   Section  27  of  the  Indian  Evidence  Act,  1872  

provides that when any fact is deposed to as discovery in  

consequence  of  the  information  received  from  a  person  

accused of  any  offence  in  custody  of  a  police  officer,  so  

much of such information whether it amounts to confession  

or  not  as relates  distinctly  to  the fact  thereby discovered  

may  be  proved.    It  is  well  settled  in  law  that  the  

components or portion which was the immediate cause of  

the discovery could be acceptable legal evidence [See A.K.  

Subraman and Others v. Union of India and Others39].  

39  AIR 1976 SC 483

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The words employed in Section 27 does not restrict that the  

accused  must  be  arrested  in  connection  with  the  same  

offence.  In fact, the emphasis is on receipt of information  

from a person accused of any offence.  Therefore, when the  

accused-appellant was already in custody in connection with  

FIR  no.  95  of  1985  and  he  led  to  the  discovery  of  the  

contraband  articles,  the  plea  that  it  was  not  done  in  

connection  with  FIR  no.  96  of  1985,  is  absolutely  

unsustainable.  Be it stated here, that the recovery has been  

proven  to  the  hilt.   The  accused,  accompanied  by  the  

witnesses, had gone beneath the bridge built between Gupal  

Sariya and  Madiyai  and he himself  had removed the big  

stone and dug the earth and took out the packet which was  

bound in a long cloth from which a packet was discovered  

and the said packet contained 10 kg and 200 gms of opium.  

The learned trial  Judge as well  as the High Court has,  by  

cogent and coherent reasons, accepted the recovery.  On a  

scrutiny of the same, we also find that there is nothing on  

record  to  differ  with  the  factum  of  recovery  of  the  

contraband articles.  

31. Another  submission  that  has  been  advanced  by  the

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learned counsel for the appellant is that the seized articles  

were not sent immediately for chemical examination.  The  

FSL report,  Ex.  P-14,  dated 15.9.1986 states  that  a letter  

along with a sealed packet was received with seals intact.  

The said report further mentions that packet was covered in  

white  cloth  and  on  opening  of  the  packet,  the  examiner  

found a  cylindrical  tin  and the  substance on  examination  

was found to be an opium having 1.44% morphine.  The seal  

being intact,  the description of  the case  number  and the  

impression of seal having been fixed on memo of recovery,  

there is no reason or justification to discard the prosecution  

case on the ground of delay on this score.  In  Hardip  

Singh  v.  State  of  Punjab40,  a  two-Judge  Bench  while  

dealing with the question of delay in sending the samples of  

opium to the FSL, opined that it was of no consequence, for  

the  fact  of  the  recovery  of  the  said  sample  from  the  

possession  of  the  appellant  had  been  proven  and  

established by cogent and reliable evidence and that apart,  

it had also come in evidence that till the date of parcels of  

samples were received by the Chemical Examiner, the seal  

40  (2008) 8 SCC 557

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put on that parcel was intact.  Under these circumstances,  

the  Court  ruled  that  the  said  facts  clearly  proves  and  

establishes that there was no tampering with the aforesaid  

seal in the sample at any stage and the sample received by  

the analyst  for  chemical  examination contained the same  

opium  which  was  recovered  from  the  possession  of  the  

appellant.   The  plea  that  there  was  40  days  delay  was  

immaterial and would not dent the prosecution case.   

32. In view of the aforesaid analysis, we do not perceive  

any substance in this appeal and accordingly, the same is  

dismissed.  

.............................J. [Dipak Misra]

............................J.           [S.A. BOBDE]

New Delhi April 17, 2015