Sunil Kumar Garg, J.
1. This appeal has been filed by the accused appellant against the judgment and order dated 28.3.2001 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. 32/99 by which he convicted the accused appellant for the offence under Section 8/15 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act') and sentenced him to undergo R.I. for ten years and to pay a fine of Rs. one lac, in default of payment of fine, to further undergo S.I. for six months.
2. It arises in the following circumstances:
On 8.8.1999 at about 10.15 AM, Kailash Chandra lodged a written report ex. P2 before PW-17 Jai Singh, who was SHO Police Station, Jahajpur District Bhilwara stating inter-alia that he was a driver for Jeep No. RJ 20-P-1832 and owner of that Jeep was PW-6 Man Singh and in the evening he took that Jeep to Panchanpur and kept it there and at about 9.00 PM in the night, the owner of the Jeep Man Singh (PW-6) asked PW-5 Kailash Chandra that company of Band Baja was to be taken from Peeplund as it was desired by PW-1 Mohan and, thereafter, PW-5 Kailash Chandra went to the house of PW-1 Mohan and then he alongwith PW-1 Mohan and his other companions including PW-2 Pallulal, PW-4 Om Prakash and some other persons went to Peeplund, where some members belonging to Band Baja Company sat in the Jeep and from where they reached Ghatarani Mataji, where PW-1 Mohan and his companions alighted from the Jeep. It was further stated in the report that at about 4.20 AM in the morning, a person on cycle came from Bhagwasa and on the back of his cycle, there was a bag and on being asked by PW-5 Kailash Chandra what was in that bag, that person told him that it contained Chilli, but thereafter, that person became perplexed and told him that it contained Doda Post and on being asked, he told his name as Narain Lal (present accused appellant). After that, PW-5 Kailash Chandra lodged the report Ex.P/2 and produced the accused appellant alongwith his cycle before PW-17 Jai Singh, who was at that time SHO, Police Station Jahajpur.
At about 10.15 AM on 8.8.1999, PW-17 Jai Singh took steps for conducting search of the accused appellant and since he had suspicion that there might be Doda Post in the bag belonging to accused appellant, therefore, he gave notice Ex.P/14 under the provisions of Section 50 of the NDPS Act to the accused appellant asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, accused appellant told that he could be searched in presence of the Gazetted Officer. The above proceedings were endorsed on the back o'f the report Ex.P/2 by PW-17 Jai Singh.
Thereafter, PW-17 Jai Singh called PW-12 Hem Singh, S.D.O. Shahpur and PW-11 Mohd. Rafique, Nayab Tehsildar, Jahajpur and they reached the Police Station and, thereafter, the proceedings of search of the bag, which was lying on the cycle belonging to the accused appellant, were conducted and on opening that bag, Doda Post was found in it, for which the accused appellant was not having any valid license. The Doda Post was weighed on the spot and its weight was found to be 20 kgs., out of which, two samples of 250 grms. each were taken and sealed separately on the spot and marked as A/1 and A/2 and the remaining Doda Post was also sealed separately on the spot and marked as A. PW-17 Jai Singh prepared the Fard of search and seizure on the spot and the same is Ex.P/3. The accused appellant was arrested through arrest memo Ex.P/11. PW-17 Jai Singh chalked out regular F.I.R. Ex.P/15. A detailed report was sent to superior officer by PW-17 Jai Singh and the same is Ex.P/16. All the recovered articles and samples were handed over by PW-17 Jai Singh to the Malkhana Incharge PW- 16 Mithulal, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/13. Thereafter, PW-16 Mithulal gave one sample to PW-13 Ghanshyam through letter Ex.P/6 for depositing the same in FSL, Jaipur and FW-13 Ghanshyam brought that letter alongwith sample to S.P. Office where he handed over that sample first to PW-3 Bhagwatilal, who gave another letter Ex.P/7 from S.P. Office to FSL, Jaipur and, thereafter, PW- 13 Ghanshyam deposited the sample in the FSL, Jaipur on 18.8.1999 and obtained receipt Ex.P/8. The FSL report is Ex.P/12, in which it was reported that the sample contained in the packet marked A/1 gave positive tests for the presence of chief constituents of opium, hence the sample is dried crushed capsule of opium poppy from which juice has been extracted.
It may be stated here that later on, investigation was handed over to PW-15 Nemichand, who prepared the site plan Ex.P/4. After usual investigation, police submitted challan for the offence under Section 8/15 of the NDPS Act against the accused appellant in the Court of Special Judge, Bhilwara.
On 27.11.1999, the learned Special Judge, NDPS Cases, Bhilwara framed charge for the offence under Section Section 8/15 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial.
During trial, the prosecution, in support of its case, examined as many as 17 witnesses and got exhibited several documents. Thereafter, statement of the accused appellant under Section 313 Cr.P.C. was recorded. In defence, no evidence was produced by the accused appellant.
After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 28.3.2001 convicted the accused appellant for the offence under Section Section 8/15 of the NDPS Act and sentenced him in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the said offence.
Aggrieved from the said judgment and order dated 28.3.2001 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant.
3. In this appeal, the following submissions have been raised by the learned Counsel appearing for the accused appellant:
(1) That in the present case, prosecution has not been able to prove that the cycle in question and the bag which was put on the back of the cycle, exclusively belonged to the accused appellant and thus, the fact that the recovery of Doda Post has Deen made from the exclusive possession of the accused appellant has not been proved beyond reasonable doubt.
(2) That witnesses pertaining to the lodging of the report Ex.P/2 and persons who brought the accused appellant from the tea shop to the Police Station, Jahajpur have been declared hostile and therefore, when initial case of the prosecution goes off, the rest case of the prosecution cannot be held to be proved and thus, from this point of view, the accused appellant is entitled to acquittal, as foundation of the story of the prosecution is shattered.
(3) That all proceedings of search and seizure were conducted in the Police Station and therefore, this aspect itself creates doubt on the prosecution story and from this point of view also, the accused appellant is entitled to acquittal.
Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 28.3.2001 passed by the learned Special Judge, NDPS Cases, Bhilwara.
5. I have heard the learned Counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
6. The initial case of the prosecution is that PW-5 Kailash Chandra lodged the report Ex.P/2 with the Police Station, Jahajpur and alongwith that report, he also produced the accused appellant alongwith his cycle and bag which was put on the cycle, before PW-17 Jai Singh, who was at that time SHO Police Station, Jahajpur. PW-5 Kailash Chandra, who lodged the report Ex.P/2, has been declared hostile and other persons, who were at the tea shop and those persons, who came to Police Station alongwith PW-5 Kailash Chandra have also been declared hostile and they are PW-1 Mohan, PW-2 Pappulal, PW-4 Om Prakash, PW-5 Kailash Chandra, PW-6 Man Singh, PW-7 Kailash, PW-8 Prabhulal, PW-9 Ambalal and PW-10 Kanti Chandra.
7. Thus, there is no dispute on the point that witnesses of the initial story have been declared hostile, but there is one more aspect that on the Fard of search and seizure Ex.P/3, PW-2 Pappulal, PW-4 Om Prakash, PW-5 Kailash Chandra, PW-8 Prabhulal and PW-10 Kanti Chandra have admitted their signatures. What would be the effect of it, would be discussed later on.
8. For making search and seizure, the material witnesses in this case are PW-17 Jai Singh, who was at that time SHO Police Station, Jahajpur, PW-11 Mohd. Rafique, who was at that time Nayab Tehsildar, Jahajpur and PW-12 Hem Singh, who was at that time S.D.O., Shahpur.
9. PW-17 Jai Singh through his statement has stated that the report Ex.P/2 was lodged by PW-5 Kailash Chandra and at that time PW-2 Pappulal, PW-4 Om Prakash, PW-1 Mohan and others were also with him and accused appellant alongwith his cycle and bag was produced before him by PW-5 Kailash Chandra. This witness has further stated that he gave notice Ex.P/14 under the provisions of Section 50 of the NDPS Act to the accused appellant asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and the accused appellant told him orally that he could be searched before the Gazetted Officer and for that he made entries in the notice Ex.P/14 and he has proved these entries. This witness has further stated that thereafter, he called PW-12 Hem Singh, SDO, Shahpur and PW-11 Mohd. Rafique, Nayab Tehsildar, Jahajpur and in their presence, proceedings of search and seizure were conducted and during search, the said recovery of Doda Post as stated above was made. This witness has been cross-examined at length, but nothing has come out from his statement which shows that he is telling lie or intending to implicate the accused appellant in this case falsely.
10. The statement of PW-17 Jai Singh is fully supported by the statement of PW-11 Mohd. Rafique, who was at that time Nayab Tehsildar, Jahajpur, on the point of recovery of Doda Post from the bag in question and PW-11 Mohd. Rafique has also proved his signatures on the Fard of search and seizure Ex.P/3 and on other documents also. He has further stated that on being asked, the accused appellant told him that cycle as well as Doda Post belonged to him. He has admitted one fact that all the proceedings took place in Thana.
11. PW-12 Hem Singh, who is an independent witness and SDO, Shahpur has also supported the statement of PW-17 Jai Singh. This witness has also stated that on being asked, the accused appellant told him that he has brought the Doda Post from Ghatarani side.
12. Thus, from the statements of PW-17 Jai Singh, PW-11 Mohd. Rafique and PW-12 Hem Singh, the following facts emerged:
(1) That PW-5 Kailash Chandra lodged the report Ex.P/2 with the Police Station, Jahajpur and he also produced the accused appellant alongwith his cycle and bag before PW-17 Jai Singh, who was at that time SHO Police Station, Jahajpur.
(2) That thereafter, PW-17 Jai Singh asked the accused appellant under the provisions of Section 50 of the NDPS Act whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, the accused appellant told that he could be searched in presence of Gazetted Officer and the notice under Section 50 of the NDPSActisEx.P/14.
(3) That on the request of the accused appellant, PW-17 Jai Singh called PW-11 Mohd. Rafique, Nayab Tehsildar, Jahajpur and PW-12 Hem Singh, SDO, Shahpur.
(4) That when PW-11 Mohd. Rafique and PW-12 Hem Singh reached the Police Station, Jahajpur, the accused appellant was there and cycle and bag were also lying there and on being asked, the accused appellant admitted before them that both articles i.e. cycle and bag belonged to him.
(5) That in presence of PW-11 Mohd. Rafique and PW-12 Hem Singh, the search was conducted and from the bag, 20 kgs. doda post was recovered, out of which, two samples of 250 grms. each were taken and sealed separately on the spot and marked as A/1 and A/2 and the remaining Doda Post was also sealed separately on the spot and marked as A.
(6) That PW-17 Jai Singh prepared the Fard of search and seizure Ex.P/3, which bears the signatures apart from him of PW- 11 Mohd. Rafique and PW-12 Hem Singh also and it also bears the signatures of those witnesses, who have been declared hostile.
13. Now the question that arises for consideration is whether in the above facts and circumstances, the findings of the learned Special Judge convicting the accused appellant for the offence under Section Section 8/15 of the NDPS Act are sustainable or not.
On point of possession
14. The word 'possession' has not been defined in Sections 15, 16, 17 and 18 of the NDPS Act nor is it possible to work out a completely logical and precise definition of this term uniformly applicable to all situations in the context of all the statutes. In the Dictionary of English Law (Earl. Jowitt) (1959) at P. 1367 'possession' is defined as 'the visible possibility of exercising physical control over a thing coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession unless accompanied by intention; if a thing is put into the hand of a sleeping person, he has not possession of it. thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed.
15. This definition has been recognised by the House of Lords in a well known case reported as Warner v. Metropolitan Police Commissioner (1969) 2 A.C. 256) which has been followed with approval by the Hon'ble Supreme Court of India in Inder Sain v. State of Punjab : 1973CriLJ1537 . Thus, the term 'possession' would imply dominion and control. A person cannot be said to be in possession of an article if he is not in a position to exercise any dominion over it.
16. Possession in order to amount to an offence, must be conscious. It must be to the knowledge of the person on whom liability is sought to be fastened. Such a person must have domination and control over such article and it must be exclusive.
17. In the present case, PW-5 Kailash Chandra though he has been declared hostile brought the accused appellant with cycle and bag in question to the Police Station, Jahajpur and thereafter, PW-17 Jai Singh started the proceedings of search and seizure from that bag. PW-17 Jai Singh has himself not brought the accused appellant from any place to Police Station and he has no axe to grind against the accused appellant. PW-17 Jai Singh before making search gave notice Ex.P/14 under Section 50 of the NDPS Act to the accused appellant asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and the accused appellant himself told that search be conducted in presence of Gazetted Officer and that is why, PW-17 Jai Singh took steps for calling PW-11 Mohd. Rafique and PW-12 Hem Singh and in their presence, the proceedings of search and seizure were conducted by PW-17 Jai Singh and the Fard of search and seizure Ex.P/3 was prepared. In these circumstances, to say that there was no possession of the accused appellant over the bag in question, is not correct and on the contrary, when PW-11 Mohd. Rafique and PW-12 Hem Singh asked accused appellant before search, he told them that cycle and bag in question containing Doda Post belonged to him, therefore, it should be held that the bag in question was in possession of the accused appellant before making search, as he had dominion and control over it.
18. For the reasons stated above, it is hold that the prosecution has proved that the accused appellant was in possession of the bag in question and thus, the findings of the learned Special Judge in this respect are liable to be confirmed and the argument No. 1 stands rejected.
19. So far as the argument No. 2 is concerned, no doubt the initial witnesses, who were with PW-5 Kailash Chandra when PW-5 Kailash Chandra lodged the report Ex.P/2 and produced the accused appellant in the Police Station, Jahajpur, have been declared hostile, but the prosecution case is well proved not only by the statement of PW-17 Jai Singh, who was at the relevant time SHO Police Station, Jahajpur, but by two other independent witnesses, namely, PW-11 Mohd. Rafique and PW-12 Hem Singh and they are not from police department.
20. The testimony of a witness is not to be disbelieved or discarded merely on the ground that he happens to be an official witness but it is well recognised rule of caution that Court should always look for independent corroboration to the testimony of official witnesses in such cases. It is certainly not the law that in each and every case, irrespective of the case and attending circumstances, the evidence of the police officer needs corroboration.
21. In the present case, the testimony of the police official PW-17 Jai Singh gets corroboration from the statements of PW-11 Mohd. Rafique and PW-12 Horn Singh and furthermore, all the witnesses, who have been declared hostile, have admitted their signatures on relevant Fards including the Fard of search and seizure Ex.P/3. Therefore, if they have been declared hostile, it would not affect the prosecution case, rather it appears that they are telling lie before the Court.
22. Hence, it is held that if these witnesses have been declared hostile, it would not affect the testimony of other prosecution witnesses, namely, PW-17 Jai Singh, PW-11 Mohd. Rafique and PW-12 Hem Singh and the argument No. 2 stands rejected.
23. So far as the argument No. 3 that since proceedings of search and seizure were conducted in the Police Station, therefore, they should be viewed with doubt is concerned, the same is not tenable, as independent witnesses brought the accused appellant alongwith the cycle and bag containing Doda Post in the Police Station and, thereafter, the search was conducted at the Police Station and in these circumstances, PW-17 Jai Singh was left with no option but to conduct the proceedings of search and seizure of that bag in the Police Station alone. Thus, if proceedings of search and seizure were conducted in the Police Station, they cannot be viewed with doubt and the argument No. 3 also stands rejected.
24. For the reasons stated above, the findings of the learned Special Judge convicting the accused appellant for the offence under Section Section 8/15 of the NDPS Act are liable to be confirmed as they are based on correct appreciation of evidence and this appeal deserves to be dismissed.
Accordingly, the appeal filed by the accused appellant Narain Lal is dismissed, after confirming the judgment and order dated 28.3.2001 passed by the learned Special Judge, NDPS Cases, Bhilwara.