Jaspreet Singh @ Jashan vs State Of Punjab
2024 Latest Caselaw 19042 P&H

Punjab-Haryana High Court

Jaspreet Singh @ Jashan vs State Of Punjab on 29 October, 2024

                                    Neutral Citation No:=2024:PHHC:142593




CRM-M-28132
       28132-2024 and                                                         1
CRM-30419
    30419-2024

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                                  Reserved on : 21.10.2024
                                                  Pronounced on : 29.10.2024

1. CRM-M--28132-2024

Jaspreet Singh @ Jashan                                       ...Petitioner

                                         Versus

State of Punjab                                               ...Respondent



2. CRM-M--30419-2024

Harmanpreet Singh                                             ...Petitioner

                                         Versus

State of Punjab                                               ...Respondent



CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI

Present:     Mr. Savreet Singh Brar, Advocate
             for the petitioner in CRM-M-28132
                                         28132-2024.

             Mr. Arshdeep Singh Brar, Advocate
             for the petitioner in CRM-M-30419
                                         30419-2024.

             Mr. Pardeep Bajaj, DAG, Punjab.

                  ****

KULDEEP TIWARI, TIWARI J.

1. Both the instant petitions are amenable to be decided together, as

the common relief of regular bail has been sought sought,, in case FIR No.41, dated

04.04.2024, under Section 22(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985, registered at Police Station Sadar Faridkot, District Distr

Faridkot, Punjab, Punjab, therefore, both the instant petitions are taken up together for

adjudication.

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FACTS OF THE CASE

2. The petitioners sought relief of regular bail in the FIR (supra).

The instant FIR, was registered on the basis of statement of ASI Chamkaur

Singh,, wherein, he alleged that on dated 04.04.2024 04.04.2024, when he along with other

police officials were going towards the village Chandbaja, in connection with

patrolling and checking the suspects, they saw six persons, who were sitting

under the shed of grain market, and upon seeing the police party, one of them

whose name later on revealed as Mandeep Singh, threw away a polythene bag.

All the six persons were apprehended by ASI Chakaur Singh, with the help of

other police officials, officials which includes the present petitioners also. On checking

of polythene bag, which was thrown by the co co-accused Mandeep Singh, after

making compliance of the provisions of the NDPS Act, 145 strips (each strip

containing 10 tablets), tablets) i.e. 1450 tablets of intoxicant mark Tra Tramadol madol

Hydrochloride were recovered from it. On the personal search of the

petitioner-Jaspreet Jaspreet Singh @ Jashan, the recovery effected from him was only

Rs.110/-,, whereas from Harmanpreet Singh Singh, only Rs.200/-,, were recovered.

No contraband was recovered from them.

SUBMISSION OF LEARNED COUNSEL FOR THE PETITIONERS

3. On asking for the relief (supra), learned counsel for the

petitioners submits that there is no recovery effected from the present

petitioners,, and the petitioners cannot be held liable liable, having conscious

possession of the recovery effected from the co co-accused accused Mandeep Singh.

Learned counsel for the petitioners further submits that as per the prosecution,

the petitioners were found sitting in the grain market under the shed, where,

the co-accused accused Mandeep Mandeep Singh, was also sitting there, and on seeing the police

party, he threw the polythene bag, from which, the recovery of contraband 2 of 14

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CRM-30419 30419-2024 was effected. It is further submitted by the learned counsel for the petitioners

that the present petitioners have clean clean antecedents and they are not involved in

any other case, and they have suffered incarceration of more than 06 months,

as on date. In the given facts and circumstances of the case, the petitioners

cannot be held to be in conscious possession of the contr contraband.

4. To vigour their submissions, learned counsel for the petitioners

has placed reliance upon the judgments judg passed by Hon'ble Supreme Court in

'Madan Lal and another vs. State of Himachal Pradesh' 2003(7) SCC 465,

'Mohan Lal vs. State of Rajasthan' 2015(3) SCC (Cri) 881 and 'Sorabkhan

Gandkhan Pathan and another vs. State of Gujarat' 2004(13) SCC 608.

Learned counsel for the petitioners submits that there is no evidence with the

prosecution, to connect that the present petitioners have any pre association

with the co-accused co Mandeep Singh. There is no incriminating material

available on record, record in this regard.

SUBMISSIONS OF LEARNED STATE COUNSEL

5. On the other hand, learned State counsel on instructions imparted

to him by the investigating investigating officer concerned, has opposed the grant of relief

of regular bail to the petitioners.

petitioners. Learned State counsel submits that all the six

persons were sitting together under the tin shed in the grain market market,, therefore,

with the aid of Section 35 of the NDPS NDPS Act, the petitioners can be held liable

for conscious possession. He further submits that merely, because the recovery

was not effected from the present petitioners, even then, they are not entitled

for the relief of regular bail, as it is a case of 'conscious possession'. He

further submits that final report has been submitted and the trial is yet to

begin, therefore, the petitioners are not entitled for the relief asked for.

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6. Learned State counsel has also placed on record the custody

certificates ates dated 20.10.2024, qua the petitioners, in both the instant petitions,

today in the Court. The same are taken on the record. Copies thereof, supplied

to learned counsel for the petitioners.

ANALYSIS

7. Before embarking upon the process of evaluating the arguments

addressed by the learned counsels for the parties concerned, and penning

down any opinion upon the instant petition petitions,, it is deemed imperative to

capture an overview of some significant legal propositions.

8. "Bail is the Rule and Jail is ann Exception"

Exception".. This basic principle

of criminal jurisprudence was laid down by the Hon'ble Supreme Court, way

back in 1978, in its landmark judgment titled 'State of Rajasthan vs.

Balchand alias Baliay', Baliay', 1977 AIR 2447, 1978 SCR (1) 535. This principle

finds its roots in one of the most distinguished fundamental rights, as

enshrined in Article 21 of the Constitution of India. Though the underlying

objective behind detention of a person is to ensure easy availability of an

accused for trial, without any inconvenience, inconvenience, however, in case the presence

of an accused can be secured otherwise, then detention is not compulsory.

9. This Court, has considered the submissions made by the learned

counsel for the parties concerned.

10. In the NDPS Act, the term 'consci 'conscious possession' has not been

used,, only the term 'possession' has been used in the Act Act,, without there being

any reference to conscious, preceding the word possession anywhere.

However, the term find its origin in the precedent law law,, as held by Hon'ble the

Supreme Court, in which it has been held that the term possession under the

NDPS Act, must means conscious or a mental state of possession possession, and not 4 of 14

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CRM-30419 30419-2024 merely physical possession. Hon'ble the Supreme Court in Mohan Lal and

another (supra), (supra) by defining the word 'possession' laid down that the

possession consists of two elements i.e. one is physical control, and the

another is intent. The word 'possession' is a mental state and Section 35 of

the NDPS Act, gives statutory recognition to the culpable mental state state, and it

includes knowledge of fact. The relevant paragraphs of the said judgment is

extracted hereunder :-

:

"20.

20. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the eevidence vidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which ch was not a public vehicle.

23. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent ndent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 Supreme Court 52), to work out a completely logical and precise definition of "possession uniformly applicable to all situation in the context of all statutes.

24. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.

25. As noted in Gunwantlal v. The State of M.P. (AIR 1972 Supreme Court 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in

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CRM-30419 30419-2024 question, while the person whom physical possession is given holds it subject to that power.

26. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL).. In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession sion of the same. (See Sullivan v. Earl of Caithness (1976(1) All ER 844 (QBD) (QBD).

27. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special al knowledge. Section 35 of the Act gives a statutory recognition of this position because of 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.

articles."

11. Further,, the ratio laid down in Madan Lal and another (supra), (supra)

was followed by the Supreme Court in Mohan Lal (supra), and the Supreme

Court has laid down that unless possession is coupled with requisite mental

element,, i.e. conscious possession, one cannot be held guilty for recovery of

any contraband. The relevant extract reads as under ::-

"16.

16. Once possession is established the court can presume that the accused had culpable mental state and have committed the offenc offence.

e. In somewhat similar facts this Court had the occasion to consider this question in Madan Lal v. State of H.P., 2003(4) RCR (Criminal) 100 (2003) 7 SCC 465,, wherein it has been held as follows:

(SCC p. 472, paras 26-27)

27).

"26.

26. Once possession is established, the person who claims that it was not a conscious possession has to 6 of 14

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CRM-30419 30419-2024 establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this posit position ion 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 nscious possession has been established. It has not been shown by the accused accused-appellants appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.

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 th mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" Le. 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 ass 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

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CRM-30419 30419-2024 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 trix would exposit, the accused accused-appellant 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 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, th there ere 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 afterr 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 appellant cannot take the plea tthat hat 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

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CRM-30419 30419-2024 penalty which is prohibited under Article 20(1) of the Constitution of India. Article 20(1) gets attracted only when any penal law penalises with retrospective effect Le. 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 Pradesh, AIR 1953 S Supreme Court 394,, 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 rial thereof. The Constitution Bench has held that:-

"......what 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 co commission mmission 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 titutional objection by way of discrimination or the violation of any other fun fundamental damental right may be involved."

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.

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CRM-30419 30419-2024 Therefore, if a person rson 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."

12. Hon'ble Supreme Court in 'Union of India through Narcotics

Control Bureau, Lucknow vs. Mohd. Nawaj Khan' (2021) 10 Supreme

Court Cases 100, 100 has held that mere absence of the possession of contraband

on the person of the accused, does not ipso facto means that the accused was

not in n possession of the contraband, rather, the knowledge of possession of

the contraband has to be gleaned from the facts and circumstances of the

case. The relevant extract of the judgment, is reads as under ::-

"25.

25. We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic otropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P. this Court held that: (SCC p. 472, paras 19-

23 & 26)

19. Whether there was conscious possessio "19. possession n has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

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20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. cconscious onscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings eanings in contextually different backgrounds. It is impossible, as was observed in Supt. & Remembrancer of Legal Aff Affairs, airs, W.B. v. Anil Kumar Bhunja to work out a completely logical and precise definition of "possession" uniform[ly] applicable to all situations tions in the context of all statutes.

23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.

xxx xxx xxx xxx

26. Once possession is established, the person who claims that it was not a conscious ious possession has to establish it, because how he came to be in possession is 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."

26. What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious

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CRM-30419 30419-2024 possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan, this Court also observed that the term "possession" could mean physical possession with animus; custo custody dy over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

27. We have referred to the above precedents to reiterate the governing principles. At this stage of the proceedings, it needs only to be clarified that the trial is to take place this Court (sic) where evidence will be adduced.

28. As regards the finding of the High Court regarding absence of recovery ry of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallikle, a two two-Judge Judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband contraban (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the "possession" of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non non-application application of mind by the High Court."

13. In view of the above, the issue of conscious possession becomes

a subjective test to be determined with reference to the facts and

circumstances of each case.

14. On the touchstone of the above law laid down by the Supreme

Court, this his Court has examined the facts of the instant FIR. In the instant FIR 12 of 14

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CRM-30419 30419-2024 (supra), six persons were found sitting during the harvest season of wheat, in

the grain market under the tin shed. It is not the case of the prosecution that

all six persons were having any previous connection with each other. There is

no other evidence except, the disclosure statement suffered by the co co-accused accused

Mandeep Singh, Singh, to connect and establish that they were previously known to

each other. Only one person i.e. co-accused accused Mandeep Singh was in

possession of a polythene bag, bag, which he threw threw, after seeing the police

officials. None of the other five accused persons made an attempt, to run

away from the spot, after seeing the police party. It is an admitted case of the

prosecution that the accused persons were not carrying any mobile phone,

therefore, in the absence of any call details record (CDR) (CDR),, no connection can

be established lished amongst the accused persons.

15. In view of the above facts, that the present petitioners were

sitting on a public platform, that too when they were working as a casual

labourer, at the time of wheat harvest season, whether, the present petitioners

can be held liable for the conscious possession, or not, is a debatable issue, issue

and is to be considered by the learned trial Court concerned, upon leading the

cogent evidence by the prosecution. Therefore, tthis his Court refrains itself from

making any observation in this regard.

DECISION

16. However, considering the above facts, the period of

incarceration and the fact that both the present petitioners are not previously

involved in any other criminal case, this Court deems it fit and appropriate to

enlarge the present petitioners on regular bail.

17. Accordingly, both the instant petition petitions are allowed. The

petitioners-Jaspreet Jaspreet Singh @ Jashan and Harmanpreet Singh, are ordered to 13 of 14

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CRM-30419 30419-2024 be released on bail, bail on furnishing of bail bonds and surety bonds to the

satisfaction of Chief Judicial Magistrate/trial Court/Duty Magistrate, Magistrate

concerned.

18. However, anything observed herein hereinabove above shall have no effect on

the merits of the case and is meant for deciding the present petitions only.

19. Photocopy of this order be placed on the connected case file.

(KULDEEP TIWARI) JUDGE

Pronounced on : October 29th, 2024 Manpreet

Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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