Cause Title:
Mohan Lal Vs State of Rajasthan
Date of Judgment:
17 April 2015
Judge(s):
Justice Dipak Misra
Justice S.A. Bobde
Parties:
Appellant(s) -Mohan Lal
Respondent(s) -State of Rajasthan
SUBJECT
The appeal was filed to challenge the legal impregnability of the High Court of Judicature of Rajasthan's judgment and order affirming the appellant's conviction and sentence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985, and Sections 457 and 380 of the IPC as recorded by the learned Additional Sessions Judge.
IMPORTANT PROVISION
Narcotic Drugs and Psychotropic Substances Act 1985(hereinafter as The NDPS Act)
Section 18: Punishment for contravention in relation to opium poppy and opium
The Indian Penal Code, 1860 (hereinafter as IPC)
Section 380: Theft in dwelling house, etc.
Section 457: Lurking house-trespass or house-breaking by night in order to commit an offence punishable with imprisonment.
OVERVIEW
- Bhanwarlal, who was posted in the Magistrate's Court, filed an FIR, stating that when he arrived at the Court, he discovered that the main gate of the malkhana had been broken into and the items had been spread.
- After being alerted, the Presiding Officer ordered an inventory, which revealed that 10 kgs 420 gms of opium and other items had been stolen from different packs.
- Mohan Lal, the accused, was apprehended during the investigation.
- While in custody, he revealed that he had broken the lock of the Court's malkhana and stolen the opium, which he kept concealed in a white bag.
- The bag and cloth were taken out by the accused digging the pit and the bag contained 10 kgs and 200 gms of opium. The remaining substance and other items were separately sealed.
- Following receipt of the FSL report and completion of the investigation, a chargesheet was filed under Section 18 of the NDPS Act, as well as Sections 457 and 380 of the IPC.
- The defendant pled not guilty and asserted his right to a fair trial.
- The accused was found guilty of the accusations by the Trial Court, and he was convicted as a result.
- In the appeal, it was argued that the incident occurred before the NDPS Act was enacted, and so the offence was punishable under the Opium Act of 1878.
- The High Court dismissed all of the arguments and upheld the Trial Court’s verdict and sentence.
ISSUE
- According to the NDPS Act and the Opium Act, what does "possession" mean?
- Is it true that having illegal substances in one’s hands constitutes an ongoing offence?
ARGUMENTS ADVANCED BY THE APPELLANT
- It was argued that the accused could not be found guilty because the substance was stolen before the NDPS Act was enacted and hence the accused could not be charged under section 18 of the NDPS Act, but rather under section 9 of the Opium Act.
- Furthermore, it was argued that while both Acts made possession of prohibited substances punishable, the term of the sentence differed. The specified punishment under Section 18 of the NDPS Act was a minimum of 10 years in prison with a large fine, but the sentence was extendable upto one year under Section 9 of the Opium Act.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The State's learned counsel argued that the offence in question was a continuing offence because the offence was essentially possession of illicit materials. In the case of State of Bihar v. Deokaran Nenshi & Anr.[(1972) 2 SCC 890], it was decided that a continuing offence was one that could be repeated and could be distinguished from one that was committed once and for all. It was one of those offences that resulted from a failure to obey or comply with a rule or its necessity and carried a punishment, the obligation for which lasted until the rule or requirement was obeyed or complied with. There was an infraction committed every time such disobedience or non-compliance happened and reoccurred. The distinction was between an act or omission that formed an offence once and for all and any act or omission that continued and so constituted a new offence each time or occasion it occurred. There was thus the ingredient of a continuing offence in the case of a continuing offence, which was absent in the case of an offence that occurred when an act or omission was performed once and for all.
JUDGEMENT ANALYSIS
- The phrase "possession" is made up of two parts. The corpus, or physical control, is the first, and the animus, or intent, is the second, with regard to the exercise of the same control. The manual or ideal custody of something that may be the subject of property for one's use and enjoyment, either as the owner or as the proprietor of a qualified right in it, and held personally or by someone who exercises it in one's place and name. That set of circumstances in which one can exercise his authority over a corporeal thing at will, to the exclusion of all others.
- In general, the law distinguishes between two types of possession: actual possession and constructive possession. A person in actual possession of something is when he has direct physical control over it at a particular time. A person in constructive possession of something is one who, despite not having real ownership, knowingly possesses both the authority and the desire to exert dominion or control over it at any given time, either directly or through another person or individuals. In the context of Section 18 of the NDPS Act, the concept of conscious possession would be mentioned.
- As can be seen from the language used in Section 35 of the NDPS Act, the legislature was fully aware of the said element and that the word "possession" relates to a mental state when establishing the said statute. The Court stated in Noor Aga v. State of Punjab and Anr.[(2008) 16 SCC 417] that Section 35 of the NDPS Act provides for a presumption of culpable mental state, and that the accused may prove that he did not have such a mental state with respect to the act charged as an offence under the prosecution.
- The court referred to Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [AIR 1959 SC 798], Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath [(1991) 2 SCC 141] and eventually held in the light of the foregoing, that the law on the subject can be summarised as follows: in the case of a continuing offence, the ingredients of the offence continue i.e. endure even after the period of consummation, whereas in the case of an instantaneous offence, the offence occurs once and for all i.e. when it occurs. Even if the damage caused by the injury may persist, there was no continuing wrongdoing in such circumstances.
CONCLUSION
- The appellant was stopped while driving, and 65 kilograms of opium were discovered. It was common knowledge that conscious possession was required to bring the crime under Section 18 of the Act. The prosecution had the initial burden of proof of possession, and once it was discharged, the legal burden shifted to the accused. It goes without saying that the term "possession" was incapable of a precise and logical meaning that could be applied universally across all statutes. “Possession" is a polymorphous word that cannot be used consistently; it takes on multiple colours depending on the situation. Not only had possession been proven in the present case's factual circumstance, but it had also been established that conscious possession had been established. The accused appellants had not demonstrated that the possession was not conscious in the logical context of the Act.
- The Court focused on the State's contention that it constituted a continuous offence. The accused appellant was still in possession of the illegal article on the date the NDPS Act went into effect, according to the Court. As a result, it was possession in the continuous sense, attracting the principle of ongoing offence.
- As a result of the aforementioned consideration, the Court determined that the appeal lacked merit and dismissed it.
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