IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 14TH DAY OF DECEMBER 2010/ CRL.A.No. 1137 of 2008 ( ) ------------------------------------- AGAINST JUDGMENT IN SC.260/2004 of I ADDL. SESIONS COURT,PALAKKAD DATED 09-05-2008 APPELLANT(S)/ACCUSED: ---------------------------------------- SURESH TAK, S/O.CHANGANLAL TAK, M/S.TAK BROTHERS, SAILANA BUS STAND, MAHARANA PRATAP CHOWK, RATLAM, MADHYAPRADESH. BY ADVS. SRI.M.K.DAMODARAN (SR.) SRI.SOJAN MICHEAL SRI.O.V.MANIPRASAD RESPONDENT(S)/STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DIRECTORATE OF REVENUE INTELLIGENCE (DRI) CALICUT. BY ADV. SRI.C.P.UDAYABHANU, SPL.PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-12-2010, ALONG WITH CRA. 1213/2008, CRA. 2011/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K.HEMA, J. ----------------------------------------------- Crl. Appeal Nos.1137, 1213 & 2011 of 2008 ----------------------------------------------- Dated 14th December, 2010. COMMON JUDGMENT Accused nos.1 to 5 in the crime were tried by Additional Sessions Court in two different sessions cases (SC nos.324/02 and 260/04) for offences under Sections 21(c), 28, 29(1) and 2(ix) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short). After trial, all of them were convicted and sentenced for offences under Section 120B of Indian Penal Code ('IPC' for short) and Sections 29 and 21 of the Act. They filed above three independent appeals challenging the conviction and sentence. These appeals are heard and disposed of by this common judgment, for convenient sake. 2. According to prosecution, PW1, who is the Intelligence Officer attached to Directorate of Revenue Intelligence at Kozhikode, received telephonic information from Bombay on 24.06.2002 at about 5.30 p.m. that heroine was concealed in a truck bearing registration no.MP-09/KC-1671 Crl.A.Nos.1137, 1213 & 2011 of 2008 2 which was loaded with marbles from Rajasthan and was heading towards Kerala. PW1 took down the information in writing (Ext.P1) and forwarded it to PW12, who is the Senior Intelligence Officer in the same office, in compliance with Section 42 of the Act. 3. Thereafter, PW1 along with PW2 and other officers proceeded from Kozhikode in a vehicle in 'surveillance' of the truck. On 25.06.2002 at about 7 a.m., they reached in front of M/s.K.H.Floor Gallery ('the Gallery' for short) situated at Pattambi. By 7.30 a.m., the said truck came to the front side of the Gallery. PW13 who is the owner of the Gallery was present at the scene. After informing the driver of the truck (A3) and others, who were present in the truck (A1 to A4), a search was conducted in the truck, which was loaded with marble slabs. They were found inside the cabin of the truck. 4. First accused was introduced by third accused (driver) as his friend. The second accused is the substitute driver. The fourth accused is the cleaner of the truck. Crl.A.Nos.1137, 1213 & 2011 of 2008 3 Thereafter, the marbles were unloaded. Two bags were found on the platform of the truck, having been concealed among the marble slabs. Those bags were taken out and examined. 5. One of the bags (MO3-F) was found to contain 12 polythene covers containing heroine. The other bag (MO3-E) was also opened and examined and it was also found to contain 20 polythene bags containing heroine. Samples were taken, after mixing all the articles homogeneously. Three samples weighing 5 gms. each were taken. The total quantity of the articles was 32.25 Kg and the articles were seized by PW1 under the mahazar-Ext.P8. 6. The body of each of accused nos.1 to 4 was also searched, after complying with Section 50 of the Act. PW1 gave Ext.P10 report to PW12 under Section 57 of the Act. Accused nos.1 to 4 were taken to the office and their statements were recorded under Section 67 of the Act. The statement of first accused was recorded on 25th evening and the statement of accused nos.2 to 4 were recorded on the next day morning, on Crl.A.Nos.1137, 1213 & 2011 of 2008 4 26th. They were arrested thereafter. A case was registered against the accused and investigation commenced. 7. On investigation, it was found that 5th accused was running a transport company and that accused nos.2 to 4 were employees of 5th accused. It was also found that 5th accused transported heroine in a Maruti car to Pitampur, at Madhya Pradesh, while first accused, who is his employee, was also present in the car. In the early morning of 19.06.2002, 5th accused placed two bags containing heroine in the truck at Pitampur. 8. 5th accused instructed first accused to go over to Kerala in the said truck and also told him to contact him after delivery of marble at Pattambi. First accused was also told that he would be paid Rs.40,000/- by the person to whom the contraband article was to be given. The truck proceeded to Pattambi and before first accused could get any information from 5th accused regarding the person to whom the contraband article was to be given, the truck was intercepted by the Crl.A.Nos.1137, 1213 & 2011 of 2008 5 officials and seizure was effected. After completion of investigation, complaint was lodged by PW12 against accused nos.1 to 5. 9. Two different set of charges were framed against appellants by the trial court in two sessions cases. Charge dated 11.02.2005 was framed by trial court against accused nos.1 to 4 and charge dated 22.10.2005 was against accused no.5. All of them were jointly tried in two sessions cases. PW1 to PW13 were examined, Exts.P1 to P62 and MOs.1 to 9 were marked on the side of prosecution. Accused marked Exts.D1 to D14 on their side. The accused were questioned under Section 313 of the Code of Criminal Procedure (the 'Code' for short), but all of them denied their involvement in the offence. 10. After analysis of the evidence in detail, trial court found that accused nos.1 to 4 transported heroine in MO3-E and MO3-F bags, with full knowledge that those bags contained heroine weighing 32.250 Kgs. It was also found that possession, transportation, export and import of contraband Crl.A.Nos.1137, 1213 & 2011 of 2008 6 articles under the Act, without any authority or licence, is prohibited under Section 8 of the Act and conspiracy was also hatched by accused to do an illegal act which was prohibited under the provisions of the Act. 11. It is also held in paragraph 67 of the judgment that “there is nothing in evidence to show that accused nos.2 to 4 played any active role in the first part of conspiracy other than possessing and transporting heroine” from Pitampur to Pattambi. However, they were also found guilty of offence under Section 120B IPC. The trial court also held that accused nos.1 to 5 are guilty of possession, transportation, export inter-state and import inter-state of heroine and therefore, they are triable under Section 21 of the Act. First and 5th accused were also found to have committed offence under Section 29 of the Act. The said conviction and sentence are challenged by filing these three appeals. 12. Heard. Perused the records. On hearing both sides and on perusal of the records in this case, I find that the main Crl.A.Nos.1137, 1213 & 2011 of 2008 7 challenge is on alleged “possession” of contraband article by accused nos.1 to 5. The charge dt.22.10.2005 framed by trial court discloses that 5th accused allegedly “possessed” 32.250 Kgs. of heroine kept in two bags; “transported” the same in a Maruti car and thereafter, on interception of truck no.MP-09/KC 1671 at a place just before Pitambur in Madhya Pradesh, he placed those bags in the cabin of the same truck. 13. As per the particulars stated in the charge, it was 5th accused who alone handled and dealt with the contraband article seized in this case. No other accused had physical custody of the article nor did they deal with the article at any time. However, the date, time and exact place from where 5th accused handled the contraband article are not stated in the charge, though it is mandatory under Section 212 of the Code that all such particulars must be stated in the charge. 14. It is also stated in the charge that accused nos.1 to 4 also “possessed” heroine between 19.06.2002 to 25.06.2002 in contravention of the provisions of the Act. They are also Crl.A.Nos.1137, 1213 & 2011 of 2008 8 alleged to be in “possession” of the contraband article, since in the truck in which they travelled between 19.06.2002 to 25.06.2002, the contraband article was seen kept. Thus, as per the details in the charge, accused nos.1 to 5 are guilty of “possession” of heroine. 15. Section 8(c) of the Act lays down that no person shall “possess” any narcotic drug or psychotropic substance. “Possession” of narcotic drug is prohibited under Section 8(c) of the Act. The word “possess” or possession” is not defined under the Act. Therefore, before analysing the matter before the Court, it is essential to understand what is meant by the expression, “possess” in legal parlance. If there is a clear understanding of the expression “possession”, it will be possible to decide whether any of the accused possessed the contraband article, as alleged by prosecution. 16. On a browse through the various precedents, it is evident that there are many nuances for “possession” and those have very often confused the Bar and the Bench. The Crl.A.Nos.1137, 1213 & 2011 of 2008 9 Supreme Court and various High Courts in this country interpreted the scope of the expression “possession”, both under civil law and criminal law. A three-Judges-Bench of the Supreme Court in Supdt. and Remembrancer of Legal Affairs v. Anil Kumar Bhunja ((1979) 4 SCC 274) held thus: “Possession” is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of possession uniformally applicable to all situations in the contexts of all statutes”. 17. In National Safe Deposit Co. v. Stead [232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 (1914)], the Supreme Court of United States held, "there is no word more ambiguous in its meaning than possession". Thus, the Courts in India and abroad find the expression, “possession” to be ambiguous and not capable of being given a precise definition. 18. However, from various precedents on “possession”, it can be seen that while interpreting the expression “possession”, courts have frequently modified the word Crl.A.Nos.1137, 1213 & 2011 of 2008 10 “possession”, by adding one term or other to describe a particular type of “possession” which is involved in each case. For example, possession in certain contexts is described as “actual possession”, “adverse possession”, “conscious possession”, “constructive possession”, “exclusive possession”, “illegal possession”, “joint possession”, “legal possession”, “physical possession” “representative possession” or some other type of “possession”. 19. Depending upon how and under what circumstances the expression “possession” is used, the term “possession” has a variety of possible meanings. The facts which are proved in a particular case (whether civil or criminal) may disclose one or the other type of “possession” which are referred above and which law recognizes. If, what may be proved in one particular case is “actual possession”, in another case, it may be “constructive possession” or some other type of possession. 20. In criminal cases, ordinarily, the courts deal with “possession” of certain dangerous or undesirable items of Crl.A.Nos.1137, 1213 & 2011 of 2008 11 articles which may constitute an offence under different statutes. Possession of articles like narcotics, liquor, burglary tools etc., are considered to be harmful to the public and are made punishable under various statutes. Possession of certain fire arms and other weapons also constitute offence under certain provisions of law. 21. Depending upon the facts and circumstances of each case, nature of “possession” which is to be proved to constitute a particular offence may be different. As far as criminal cases are concerned, first and foremost in the category of “possession” is “actual possession”. It is also described as “physical possession”. Going by the history, “actual possession” or “physical possession” is all what was recognised in Criminal Law in the beginning, as “possession” i.e, having actual, physical custody or control of an object. 22. The expression, “physical possession” or “actual possession” is used to describe immediate physical contact. If a person is physically handling an article, it can be said that he is Crl.A.Nos.1137, 1213 & 2011 of 2008 12 in physical contact with the article and hence, he is having “actual possession” or “physical possession”. This type of possession is also called in law as “possession in fact”. To explain what actual possession is, examples can be cited. 23. If a person is wearing a watch, he is in actual or physical possession of the watch. Likewise, if a person is having a wallet in his hand, he is in actual or physical possession of the wallet. If a person is carrying an article in his hand or he may be physically dealing with an article in some manner or other, i.e., by packing the same or stirring it, he can be said to have “actual possession” of the article. In short, in actual or physical possession, a person must have physical or hand-on custody of the article and thereby, he will have immediate physical contact and physical control over the article. 24. Historically, “actual possession” alone was insisted upon by the courts in the beginning, for convicting a person for possession of a contraband article. Later, different superior Crl.A.Nos.1137, 1213 & 2011 of 2008 13 courts found that as per law, an accused can possess a contraband article, even without there being actual possession. The courts in this country came across with instances where a person may not be in “actual possession” or “physical possession” of a contraband article, yet he may be liable for “possession”, as per law. The set of facts placed before the court in a particular case may clearly indicate that though accused did not have any physical contact with the article, yet he or she may be in “possession” of the article. 25. To appropriately deal with the situations where accused may not have hand-on custody or physical custody of the article, but, at the same time, he will have dominion and control over the article, the superior courts broadened the scope of “possession” beyond “actual possession” or “physical possession”. It is in this context that doctrine of “constructive possession” had its wake. “Constructive possession” is a legal fiction to describe a situation where an individual has actual “control” and “dominion” over the property, without there Crl.A.Nos.1137, 1213 & 2011 of 2008 14 being physical custody or control over the same. 26. “Constructive possession” is a legal theory used to extend “possession” to situations where a person has no physical custody of the object. At law, a person with “constructive possession” stands in the same legal position as a person with actual possession. Thus, in criminal cases, mainly two varieties of “possession” arise - “actual possession” and “constructive possession”. The main distinction between “actual possession” and “constructive possession” is that in actual possession, accused will have physical custody of the article or physical control over the same, whereas in “constructive possession”, he will not have physical contact or physical control over the article. 27. Yet, whether it is in “constructive possession” or in “actual possession”, he will have the control and dominion over the property. Even if a person is not in “actual possession” of the contraband article, he will have control and dominion over the property remotely and thus, he can have “constructive Crl.A.Nos.1137, 1213 & 2011 of 2008 15 possession”. One example of “constructive possession” is “possession” which an individual may have by virtue of ownership or possession of the place where the article is kept. 28. The owner or person, who is in possession of the building or vehicle in which the article was kept, may not have actual or physical possession of such article. Yet, “constructive possession” of such article can be attributed to him, for the reason that he is the owner or person who is in possession of the vehicle or building and thereby, he can be presumed to have “dominion” and “control” over all the articles which are kept in his building or vehicle. Such possession is attributed to him not because he is in actual possession of the article but because of the ownership or possession of the place (building or vehicle) in which it is kept. 29. Thus, even though a person may not have physical contact with the article kept in the vehicle or building, he can still be called upon to answer the criminal liability for the contraband article which is kept in his vehicle or building. This Crl.A.Nos.1137, 1213 & 2011 of 2008 16 is because of his liability on the doctrine of “constructive possession”. “Possession” in criminal law, in my considered view, can be broadly classified into two categories viz., “actual/ physical possession” or “constructive possession”. In most of the criminal cases, either “actual/physical possession” or “constructive possession” will have to be established to prove “possession”. 30. However, in any criminal prosecution involving “possession”, just as in any other criminal prosecution, prosecution will have to prove “mens rea” or “criminal intention”, unless any particular statute or provision prescribes anything to the contrary. Therefore, a mere physical or actual possession of an article nor constructive possession of such article itself may not be sufficient to hold a person guilty of an offence involving possession of a contraband article, especially since a conviction leads to stigma. 31. A person can be convicted for possession of a contraband article, whether he is in “actual possession” or Crl.A.Nos.1137, 1213 & 2011 of 2008 17 “constructive possession” or some other type of “possession” which is recognised by law, only if the court is satisfied that the accused was aware of or was conscious of the fact that what he was having in his possession is a contraband article, unless any provision of law indicates to the contrary. Even if prosecution proves that accused is having “actual possession” or “constructive possession” of a contraband article, there must be evidence to show that he was aware or conscious of what he was having in his possession and that he intended to possess the same. Without knowledge, awareness or consciousness of such fact, even “physical or actual possession” or “constructive possession” or any other type of possession may not constitute an offence relating to possession. 32. Referring to “possession” under Section 9 of the Opium Act, it is held in Inder Sain v. State of Punjab ((1973) 2 SCC 372) as follows: Crl.A.Nos.1137, 1213 & 2011 of 2008 18 “In a criminal case, unless the Statute otherwise indicates, a person who is in possession must be “conscious” of what he is in possession and he must have intended to be in possession, since conviction leads to a lot of consequences including stigma. Knowledge is an essential ingredient of the offence, as the word possess connotes in the context of Section 9, possession with knowledge the legislature could not have intended to make mere physical custody without knowledge of an offence. A conviction under Section 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession.” 33. Therefore, the awareness or consciousness of the accused about the nature of the article which he has in his possession is quite important to prove a criminal offence relating to “possession”. It is in the above context that the theory of “conscious possession” originated in criminal law. While dealing with Criminal prosecution for “possession” of a contraband article, it is held in various decisions (vide Balbir Kaur v. State of Punjab ((2009) 15 SCC 795), Durga Prasad Gupta v. State of Rajastan ((2003) 12 SCC 257) Crl.A.Nos.1137, 1213 & 2011 of 2008 19 and Megh Singh v. State of Punjab ((2003) 8 SCC 666) as follows: “It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, ...is not attracted”. 34. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. In a criminal offence, therefore, it is imperative on the prosecution must also prove “conscious possession” (unless any statute or provision indicates to the contrary), apart from proving other varieties of possession, viz., actual, physical, constructive, representative etc. Thus, only on proof of “actual possession” or “constructive possession” or any other type of “possession” recognised by law, coupled with “conscious possession” that an accused can be convicted for offence relating to “possession”. Crl.A.Nos.1137, 1213 & 2011 of 2008 20 35. Without proof of “actual/physical possession” or “constructive possession” and “conscious possession”, a person cannot ordinarily, be convicted for “possession” of a contraband article in a criminal case. For an easy reference, I would put all factors together and call it “criminal possession” to explain the concept of “possession” in Criminal Law. “Criminal possession” broadly constitutes “actual possession” or “constructive possession” coupled with “conscious possession”. In short, in criminal cases involving “possession”, prosecution must establish “criminal possession”. 36. In criminal cases involving “possession”, prosecution must firstly establish that accused was either in “actual possession” (“physical possession”), or “constructive possession” of the contraband article and that he was also in “conscious possession” of such article, unless the particular Statute excludes proof of mens rea. Therefore, the first question to be considered by the Court in a criminal case involving “possession” is whether accused was in actual Crl.A.Nos.1137, 1213 & 2011 of 2008 21 possession or hand-on custody of the contraband article or whether he was physically handling the same. 37. If the accused is found to be not in actual/physical possession, the next question is whether he was in “constructive possession” of the article. Even though he does not have any physical contact of the same, he can yet be liable for possession, being in “constructive possession” of the article. Whether he is either in actual/physical possession or constructive possession of the contraband article, the court must look into the question whether he was in conscious possession of the same. Without proving that an accused was in actual possession or constructive possession and also in conscious possession, accused cannot be convicted for possession of a contraband article, unless proof of mens rea is excluded by virtue of any statute. 38. It has also to be borne in mind that whether it is a case of actual or physical possession or constructive possession, it is the dominion and control of the accused over Crl.A.Nos.1137, 1213 & 2011 of 2008 22 the contraband article which makes him liable for possession. In a case of “actual possession/physical possession” or “constructive possession”, dominion and control of the accused over the contraband article must be established to prove “possession” of such article. 39. Even if a person is having dominion and control over the article, by way of actual/physical possession or constructive possession, conviction may not be possible, unless the court is satisfied that accused was also having “conscious possession”. Therefore, consciousness or awareness of the accused over the nature of the article which he is in possession of and his intention to possess it are inevitable factors to be satisfied to hold a person liable for “possession” of contraband article in a criminal prosecution, unless the Statute prescribes anything to the contrary. These are the essentials to be satisfied to hold a person liable for “possession” of a contraband article in a criminal prosecution. Crl.A.Nos.1137, 1213 & 2011 of 2008 23 40. Now, coming to the facts of this case, I will first find out what is the type of “possession” prosecution attempted to establish in this case. As per the particulars referred to in the court-charge dated 22.10.2005, 5th accused was allegedly having “actual possession” of 32.250 kg of heroine kept in two