# MOHAN LAL v. STATE OF RAJASTHAN

- **Citation:** [2015] 5 S.C.R. 435
- **Court:** Supreme Court of India
- **Decided:** 2015-04-17
- **Case number:** Criminal Appeal No.1393of2010
- **Bench:** Dipak Misra Ands.A. Bobde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohan-lal-v-state-of-rajasthan-30841
- **Pages:** 39

## Headnote

A
B
Narcotic Drugs and Psychotropic Substances Act, C
1985- ss. 18, 35, 42, 43 and 57 - Prosecution uls. 18 rlw. ss.
457 and 380 of Penal Code -
For theft of opium and
possession thereof - Recovery of the contraband at the
instance of the accused from a public place where he had 0
concealed the same - Conviction by courts below - On
appeal, pleas of accused that the Act was not applicable since
the offence was committed before enforcement thereof; that
conviction under the Act would tantamount to retrospective
operation which is against Art. 20(1) of the Constitution; that E
conviction is vitiated for non-compliance of ss. 42(2) and 57;
that disclosure statement of the accused not admissible since
it was made while the accused was in police custody in
connection with another case; and that there was delay in
sending the seized articles for chemical examination - Held: F
The Act is applicable in the present case because, the
accused remained in possession of the contraband
substance even when the Act came into force - Thus was
rightly convicted uls. 18 - Therefore, it cannot be said that G
acts of possession was made punishable with retrospective
affect, hence violation of Art. 20(1) would not arise - In the
present case, since the contraband substance was recovered
from a public place, s. 43 would be applicable and not s.
42(2)- Evidence of the case show that there was substantial H
435
436
SUPREME COURT REPORTS
(2015] 5 S.C.R.
A compliance of s. 57 - The recovery of the contraband articles
has been proved to the hilt and the fact that recovery
statement was made while in police custody in respect of
another case, would not affect the admissibility of the
statement - On the facts of the case, delay in sending the
B seized articles for chemical examination would not affect the
prosecution case - Conviction upheld - Penal Code, 1860
-ss. 457 and 380- Constitution oflndia, 1950-Art. 20(1).
Evidence Act, 1872 - s. 27 - Scope of- Held: s. 27
C does not restrict that the accused must have been arrested
in connection with the same offence.
Constitution of India, 1950-Art. 20(1) -Applicability
of- Discussed.
D
Words and Phrases - 'Possession' - Meaning of, in
E
the context of Narcotic Drugs and Psychotropic Substances
Act, 1881.
Dismissing the appeal, the Court
HELD: 1.1 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
F 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"
G 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
H possession". Thus, there is a degree of flexibility in the
MOHAN LAL v. STATE OF RAJASTHAN
437
use of the said term and that is why the word possession A
can be usefully defined and 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. The term
"possession" consists of two elements. First, it refers B
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. [Paras 8 and 9] [449-G-H;
450-A-D]
c
1.2 The 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 0
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

## Text

_Characters 0–39,896 of 68,045. This is a partial read: ask again with offset=39896 for what follows._

[2015] 5 S.C.R. 435
MOHAN LAL
v.
STATE OF RAJASTHAN
(Criminal Appeal No.1393of2010)
APRIL 17, 2015
[DIPAK MISRA ANDS.A. BOBDE, JJ.]
A
B
Narcotic Drugs and Psychotropic Substances Act, C
1985- ss. 18, 35, 42, 43 and 57 - Prosecution uls. 18 rlw. ss.
457 and 380 of Penal Code -
For theft of opium and
possession thereof - Recovery of the contraband at the
instance of the accused from a public place where he had 0
concealed the same - Conviction by courts below - On
appeal, pleas of accused that the Act was not applicable since
the offence was committed before enforcement thereof; that
conviction under the Act would tantamount to retrospective
operation which is against Art. 20(1) of the Constitution; that E
conviction is vitiated for non-compliance of ss. 42(2) and 57;
that disclosure statement of the accused not admissible since
it was made while the accused was in police custody in
connection with another case; and that there was delay in
sending the seized articles for chemical examination - Held: F
The Act is applicable in the present case because, the
accused remained in possession of the contraband
substance even when the Act came into force - Thus was
rightly convicted uls. 18 - Therefore, it cannot be said that G
acts of possession was made punishable with retrospective
affect, hence violation of Art. 20(1) would not arise - In the
present case, since the contraband substance was recovered
from a public place, s. 43 would be applicable and not s.
42(2)- Evidence of the case show that there was substantial H
435
436
SUPREME COURT REPORTS
(2015] 5 S.C.R.
A compliance of s. 57 - The recovery of the contraband articles
has been proved to the hilt and the fact that recovery
statement was made while in police custody in respect of
another case, would not affect the admissibility of the
statement - On the facts of the case, delay in sending the
B seized articles for chemical examination would not affect the
prosecution case - Conviction upheld - Penal Code, 1860
-ss. 457 and 380- Constitution oflndia, 1950-Art. 20(1).
Evidence Act, 1872 - s. 27 - Scope of- Held: s. 27
C does not restrict that the accused must have been arrested
in connection with the same offence.
Constitution of India, 1950-Art. 20(1) -Applicability
of- Discussed.
D
Words and Phrases - 'Possession' - Meaning of, in
E
the context of Narcotic Drugs and Psychotropic Substances
Act, 1881.
Dismissing the appeal, the Court
HELD: 1.1 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
F 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"
G 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
H possession". Thus, there is a degree of flexibility in the
MOHAN LAL v. STATE OF RAJASTHAN
437
use of the said term and that is why the word possession A
can be usefully defined and 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. The term
"possession" consists of two elements. First, it refers B
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. [Paras 8 and 9] [449-G-H;
450-A-D]
c
1.2 The 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 0
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 E
and an appropriate meaning has to be assigned to the
word to effectuate the said object. [Para 11] [453-H; 454A-B]
1.3 In the context of Section 18 of the NDPS Act, it F
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 G
the NDPS Act. Possession 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. T)'le expression "possess
or possessed" is often used in connection with statutory H
438
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 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. [Para 12] [454-C,
H; 455-A·B]
B
1.4 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
C dominion and control as a result of concealment. The
animus and the mental intent is the primary and
significant element to show and establish possession.
Further, personal knowledge as to the existence of the
0 "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
E intention is to exercise right over the substance or the
chattel and to act as the owner to the exclusion of others.
In the present case, the appellant, had the requisite
degree of control, even if the said narcotic substance
was not within his physical control at that moment. [Para
F 16] [459-G-H; 460-A-B]
1.5 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
G 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 been divested of
it. On the contrary, he led to discovery of the substance
H which was within his special knowledge. In such a
MOHAN LAL v. STATE OF RAJASTHAN
439
situation, the accused-appellant cannot take the plea that A
he had committed an offence u/s. 9 of the Opium Act and
not under Section 18 of the NDPS Act. [Para 16] [460-EH; 461-A]
-..
Noor Aga v. State of Punjab and Anr. (2008) 16 SCC
417: 2008 (10) SCR 379; Bhola Singh v. State of Punjab
(2011) 11 SCC 653: 2011 (2) SCR 642; Dharampa/
Singh v. State of Punjab (2010) 9 SCC 608: 2010 (10)
SCR 1160; Avtar Singh v. State of Punjab (2002) 7 SCC
419: 2002 (2) Suppl. SCR 482- relied on.
Black's Law Dictionary; Stroud's dictionary -
referred to.
B
c
2.1 Article 20(1) gets attracted only when any D
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. E
The Article prohibits application of ex post facto law.
[Para 17] [461-C-D]
2.2 In the instant case, Article 20(1) would have no
application. The actus of possession is not punishable F
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. G
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 H
440
SUPREME COURT REPORTS
[2015) 5 S.C.R.
A law. [Para 17] [462-B-C]
B
Rao Shiv Bahadur Singh and Anr. v. State of Vindhya
Pradesh AIR 1953 SC 394: 1953 SCR 1188 - relied
on.
Harjit Singh v. State of Punjab (2011) 4 SCC 441: 2011
(5) SCR 691 - distinguished.
3. The offence in question is a continuing offence,
for the offence is basically a possession of the
C contraband articles. 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
D continuing offence gets attracted. [Paras 19 and 22] (463E; 465-G]
State of Bihar v. Deokaran Nenshi & Anr. (1972) 2 SCC
890: 1973 (3) SCR 1004; Udai Shankar Awasthi v.
E
state of Uttar Pradesh and Anr. (2013) 2 SCC 435: 2013
(3) SCR 935; Ba/akrishna Sava/ram Pujari Waghmare
v. Shree Dhyaneshwar Maharaj Sansthan AIR 1959 SC
798: 1959 Suppl. SCR 476; Gokak Patel Vo/kart Ltd.
v. Dundayya Gurushiddaiah Hiremath (1991) 2 SCC
F
141: 1991 (1) SCR 396 -relied on.
Maya Rani Punj v. Commissioner of Income Tax, Delhi
(1986) 1 SCC 445: 1985 (3) Suppl. SCR 827; State
v. A.H. Bhiwandhiwalia AIR 1955 Born 161 - referred
G
to.
4. 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
H search is made in a public place, the officer taking the
MOHAN LAL v. STATE OF RAJASTHAN
441
search is not required to comply with sub Sections (1) A
and (2) of Section 42 of the NDPS Act. The seizure has
taken place beneath a bridge of public road accessible
to public. The officer, is an empowered officer u/s. 42 of
the Act. As the place is a public place and Section 43
comes into play, the question of non-compliance of B
Section 42(2) does not arise. [Para 25] [468-F-H]
Directorate of Revenue and Anr. v. Mohammed Nisar
Holia (2008) 2 SCC 370: 2007 (12) SCR 906; State,
NCT of Delhi v. Malvinder Singh (2007) 11 SCC 314:
2007 (7) SCR 1109 - relied on.
Kamai/ Singh v. State of Haryana (2009) 8 SCC 539:
2009 (11) SCR 470; Abdul Rashid Ibrahim Mansuri
v. State of Gujarat (2000) 2 SCC 513: 2000 (1) SCR
542; Sajan Abraham v. State of Kera/a (2001) 6 SCC
692: 2001 (1) Suppl. SCR 335; Rajinder Singh v.
State ofHaryana (2011) 8SCC130: 2011 (9) SCR 879
- referred to.
c
D
E
5. Section 57 is not mandatory in nature and when
substantial compliance is made, it would not vitiate the
prosecution case. 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, F
the question of prejudice does not arise. [Paras 27 and
29] [469-D; 470-E]
State of Punjab v. Balbir Singh (1994) 3 SCC 299: 1994
(2) SCR 208; Kishan Chand v. State of Haryana
(2013) 2 SCC 502: 2012 (11) SCR 1010-relied on.
6.1 There is no shadow of doubt that the accusedappellant was in police custody. Section 27 of the
G
H
442
SUPREME COURT REPORTS
[2015) 5 S.C.R.
A Evidence Act, 1872 provides that when any fact is
deposed to, as discovery in consequence ot the
information received from a person accused of any
offenc:e in custody of a police officer, so much of such
information whether it amounts to confession or not as
B 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. [Para 30) [471-H; 472C A-BJ
6.2 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
0 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
E 1985 (present case), is absolutely unsustainable. The
recovery has been proven to the hilt. The trial Judge as
well els the High Court has, by cogent and coherent
reasons, accepted the recovery. There is nothing on
record to differ with the factum of recovery of the
F contraband articles. [Para 30) [472-C-F]
A.K. Subraman and Others v. Union of India and Others
AIR 1976 SC 483: 1976 (1) SCR 715 - referred to.
G
7. The seal being intact on the FSL report, 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 in sending the seized articles for
H chemical examination. [Para 31) [472-G-H; 473-B]
MOHAN LAL v. STATE OF RAJASTHAN
443
Hardip Singh v. State of Punjab (2008) 8 SCC 557:
A
2008 (12) SCR 311- relied on.
Rattan Lal v. State of Punjab AIR 1965 SC 444: 1964
SCR 676: T. Barai v. Henry Ah Hoe(1983)1SCC177:
1983 (1) SCR 905; Basheerv. State of Kera/a (2004)
B
3 SCC 609: (2004) 3 SCC 609; Pratap Singh v. State
of Jharkhand (2005) 3 sec 551 - cited.
Case Law Reference
2011 (5) SCR 691
distinguished.
Para 6 and 31
c
1964 SCR 676
cited
Para 6
1983 (1) SCR 905
cited
Para 6
(2004) 3 sec 609
cited
Para 6
2005 (1) SCR 1019
cited
Para 6
2008 (10) SCR 379
relied on.
Para 13
D
2011 (2) SCR 642
relied on.
Para 14
2010 (10) SCR 1160
relied on.
Para 15
2002 (2) Suppl. SCR482 relied on.
Para 15
(2004) 13 sec 608
relied on.
Para 15
E
1953 SCR 1188
relied on.
Para 17
1973 (3) SCR 1004
relied on.
Para 19
2013 (3) SCR 935
relied on.
Para 20
1959 Suppl. SCR 476
relied on
Para 20
F
1991 (1_) SCR 396
relied on.
Para 20
1985 (3) Suppl.SCR 827 relied on.
Para 21
AIR 1955 Born 161
referred to.
Para 21
2009 (11) SCR 470
referred to.
Para 23
2000 (1) SCR 542
referred to.
Para 23
G
2001 (1) Suppi.SCR 335 referred to.
Para 23
2011 (9) SCR 879
referred to.
Para 24
2007 (12) SCR 906
relied on.
Para 25
2007 (7) SCR 1109
relied on.
Para 25
H
444
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 1994 (2) SCR 208
2012 (11) SCR 1010
1976 (1) SCR 715
2008 (12) SCR 311
relied on.
relied on.
referred to.
relied on.
Para 27
Para 28
Para 30
Para 31
B
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1393 of2010.
From the Judgment and Order dated 16.07.2009 of the
High Court of Judicature for Rajasthan at Jodhpur in S.B.
C Criminal Appeal No. 287of1989.
Aishwarya Bhati, Sanjoli Mittal, Anshuman, Amit Verma,
Pawan Kumar for the Appellant.
0
Shiv Mangal Sharma, aag, Sitesh Narayan Singh, A.
Mahapatra, AkshatAnand, Milind Kumar for the Respondent.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Calling in question the legal
E 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
F 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
imprisonment for 10 years and pay a fine of Rs. 1 lakh, in
G 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.
H
MOHAN LAL v. STATE OF RAJASTHAN
445
[DIPAK MISRA, J.]
2. The relevant facts giving rise to the prosecution are A
thaton·13.11.1985, at9.30a.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 B
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 C
an offence under Section 457·1PC. 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, incharge of Malkhana, PW-4, on 16.11.1985, and it was found D
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 E
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 F
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 G
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 H
446
SUPREME COURT REPORTS
[2015) 5 S.C.R.
A matter travelled to the Court of Session. The accused pleaded
not guilty and claimed to be tried.
3. The prosecution, in order to substantiate the charges,
examined 14 witnesses. The main witnesses are Ummed
B Singh, PW-6, the concerned, Magistrate, Narain Singh, PW4, the Criminal Clerk, in-charge of Malkhana,ASl,Achlu Ram,
PW-13, ASI Hanuman Singh, PW-3, Koja Ram, PW-10, Guiab
Singh, PW-14, and Su-lnspector-cum-SHO, Bheem Singh,
PW-12 are witnesses to the recovery. The FSL report was
C 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
D 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 NDPSAct was not in force, for it came into
force only on 14.11.1985 and hence, the offence was
E 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. 95of1986
and not in custody in connection with this case i.e. FIR No. 96
F 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
G 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
H Additional Advocate General for the State of Rajasthan.
MOHAN LAL v. STATE OF RAJASTHAN
447
[DIPAK MISRA, J.]
6. First, we shall deal with the issue of possession. The A
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
NDPSAct, for the FIR was lodged prior to coming into force of B
the NDPSAct. 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 intervening night of C
12th/131h 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 o
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 E
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 extend able to one year whereas under
Section 18 of the NDPS Act, the prescribed punishment is
minimum 1 O years apart from imposition of huge fine. Learned
F
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 G
·taken place prior to coming into force of the NDPSAct. 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
1. (2011)4SCC441
H
448
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 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 Kera/a4 and Pratap Singh v. State of Jharkhand'.
B 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 NDPSAct, such a provision cannot be
made retrospectively applicable to him. To appreciate the said
C 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
D
made and notified under section 5 or Section 8,-
E
(a) possesses opium, or
(b) transports opium, or
(c) imports or exports opium, or
(d) sells opium, or
(e) omits to warehouse opium, or removes or does any
F
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
G
may extend to one year, or with fine which may extend to
one tho1Jsand rupees, or with both;
2 AIR 1965 SC 444
• (1983) 1 sec 111
H • (2004) 3 sec 609
• c2005) 3 sec 551
MOHAN LAL v. STATE OF RAJASTHAN
[DIPAK MISRA, J.]
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."
449
A
B
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 C
NDPSAct 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,
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."
D
E
F
G
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 H
factum of possession in a narrow sense. With the passage of
450
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 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
B 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
C possession can be usefully defined and 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.
D 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:
E
F
G
H
"Having control over a thing with the intent to have and to
exercise such control. Oswald v. Weigefd. 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
• 219 Kan. 616, 549 p.2 d 568, 569
MOHAN LAL v. STATE OF RAJASTHAN
[DIPAK MISRA, J.]
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 sole. If two or more persons share actual
or constructive possession of a thing, possession is joint."
451
A
B
In the said dictionary, the term "possess" in the context
of narcotic drug law means:-
C
"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
D
is immediately accessible, and defendant exercises
"dominion or control" over substance. State v.
Homaday8."
And again
E
"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.
F
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,
G
7 Tex. Cr. App. 487 S.W. 2d 132, 135
• 105 Wash. 2d 120, 713 p.2d 71, 74
• 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
H
452
SUPREME COURT REPORTS
[2015) 5 S.C.R.
A
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
B
of stolen mail may mean actual possession or
constructive possession. U.S. v. Ellison 13•
To constitute "possession" of a concealable weapon
under statue proscribing possession of a concealable
c
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
D 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
E
been destroyed or disposed of, if, in fact, it remains in
his care and control (R. v. Buswe/f5}.
·11. Dr. Harris, in his essay titled "The Concept of
Possession in English Law16" while discussing the various rules
F 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 learl)ed author has suggested certain factors which have
been held to be relevant to conclude whether a person has
G acquired possession for the purposes of a particular rule of
12 48 Ala.App. 523, 266 So.2d 328, 333
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
H
16 Publ.ished in "Oxford Essays on Jurisprudence" (Edited by AG Guest, First
Series, Clarendon Press, Oxford.
MOHAN LAL v. STATE OF RAJASTHAN
453
[DIPAK MISRA, J.]
law. Some of the factors enlisted by him are; (a) degree of A
physical control exercised by person over 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 B
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 C
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 o
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 E
exclude all others from it. As a further statement he elucidates
that courts realise that justice and expediency 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 F
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 G
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 H
454
SUPREME COURT REPORTS
[2015] 5 S.C.R.
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
B 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.
12. Coming to the context of Section 18 of the NDPS
C 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
0 language employed in Section 35 of the NDPS Act. The said
provision reads as follows:-
E
F
G
"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
H day that it includes knowledge of a fact. That apart, Section
MOHAN LAL v. STATE OF RAJASTHAN
455
[DIPAK MISRA, J.]
35 raises a presumption as to knowledge and culpable mental A
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 proh_ibited drugs
and contraband substances. Conscious or mental state of
possession is necessary and that is the reason for enacting B
Section 35 of the NDPSAct.
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 C
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 0
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-avis the question as to whether the prosecution has been
able to discharge its burden hereinafter."
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
11 c2ooa> 16 sec 411
E
F
G
H
456
A
B
c
D
E
SUPREME COURT REPORTS
[2015] 5 S.C.R.
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
F referring to the pronouncement in Noor Aga (supra), 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:-
G
" .... 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",
H
"(2011) 11 sec 653
MOHAN LAL v. STATE OF RAJASTHAN
[DIPAK MISRA, J.]
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
457
A
B
c
D
v. State of Punja19, when the Court was referring to the E
expression "possession" in the context of Section 18 of the
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,
F
reliance was placed on Avtar Singh v. State of Punjab20 and
Sorabkhan Gandhkhan Pathan v. State of Gujaraf-1• The
Court, repelling the argument, opined thus:-
"12. We do not find any substance in this submission of
G
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
,. c201oi s sec 608
H
20 c2002i 1 sec 419
21 (2004) 13 sec 608
458
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2015) 5 S.C.R.
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.