Mohan Lal Vs. State of Rajasthan
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Head Note
Constitution of India, 1950 - Article 20 , Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18
Opium Act, 1878, Section 9 - Held that 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 - Article 20(1) prohibits application of ex post facto law and this Article would have no application in the instant case - The actus of possession is not punishable with retrospective affect - No offence is created under Section 18 of the NDPS Act with retrospective effect - 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.
Criminal Laws - Words and Phrases
Word "Possession" - Held that 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.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18 , Section 35
Concept of 'Possession' - It would have a reference to the concept of conscious possession - It includes knowledge of a fact - Presumption as to knowledge and culpable mental state from the possession of illicit articles - 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.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18 , Section 42 , Section 43
Plea that there is non-compliance of Section 42(2) of the Act repelled - Held that 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 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.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18
Opium Act, 1878, Section 9 - NDPS - Possession of Contraband Substance - Theft of contraband substance and lodging of FIR was prior to coming into force of the NDPS Act - Submission that the recovery of opium was done on 16.1.2024 though after coming into force of NDPS Act, 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 repelled - Held that on the date of recovery, he is in possession of the contraband article and possession itself is an offence under NDPS Act - In such asituation, 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.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18
Search and Seizure - Delay in sending sample to FSL - Plea on behalf of the appellant that the seized articles were not sent immediately for chemical examination - FSL report, Ex. P-14, dated 15.9.2023 states that a letter along with a sealed packet was received with seals intact - 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- 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.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18
Term "Possession" - 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.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 57
Held that Section 57 is not mandatory in nature and when substantial compliance is made, it would not vitiate the prosecution case.
The Code of Criminal Procedure, 1973 - Section 472 , Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18
Continuing Offence - Plea that theft of contraband substance and lodging of FIR was prior to coming into force of the NDPS Act appellant could have been convicted and sentenced under the Opium Act and not under NDPS Act repelled - Held 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.
The Indian Evidence Act, 1872 - Section 27
Disclosure Statement - Discovery of Contraband Substance - Plea that appellant was in custody in connection with FIR no. 95 of 1985 and while in custody, he suffered a disclosure statement and led to discovery of the contraband articles and that the said statement cannot be taken aid of for the purpose of discovery in connection with the present case repelled - Held that 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 aperson accused of any offence - The plea that it was not done in connection with FIR no. 96 of 1985, is absolutely unsustainable.
Topic(s)-NDPS - Possession - Conviction
Important Decision(s)-
- Article 20(1) of Constitution gets attracted only when any penal law penalises with retrospective effect i.e. when an act was not an offence when it was committed.
- 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.
- That words employed in Section 27 of Evidence Act does not restrict that the accused must be arrested in connection with the same offence.