MOHAN LAL versus STATE OF RAJASTHAN
[2015] 5 S.C.R. 435, Supreme Court of India, 2015
Outcome: Dismissed (Dismissed)
Segment: Ratio
[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; 454-
A-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-E-
H; 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] (463-
E; 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
accused-
appellant 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; 472-
C 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, in-
charge 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, PW-
4, 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-a-
vis 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. Offences under the Act being more 
serious in nature higher degree of proof is required to 
convict an accused. 
13. It needs no emphasis that the expression 
"possession" is not capable of precise and completely 
logical definition of universal application in the context of 
all the statutes. "Possession" is a polymorphous word 
and cannot be uniformly applied, it assumes different 
colour in different context. In the context of Section 18 of 
the Act once possession is established the accused, who 
claims that it was not a conscious possession has to 
establish it because it is within his special knowledge. 
)()()( 
)()()( 
)()()( 
)()()( 
15. From a plain reading of the aforesaid it is evident 
that it creates a legal fiction and
presumes the person in 
possession of illicit articles to have committed the offence 
in case he fails to account for the possession 
satisfactorily. Possession is a mental state and Section 
35 of the Act gives statutory recognition to culpable mental 
state. It includes knowledge of fact. The possession,
MOHAN LAL v. STATE OF RAJASTHAN 
[DIPAK MISRA, J.] 
therefore, has to be understood in the context thereof 
and when tested on this anvil, we find that the appellants 
have not been able to satisfactorily account for the 
possession of opium. 
16. Once possession is established the court can 
presume that the accused had culpable mental state and 
have committed the offence. In somewhat similar facts 
this Court had the occasion to consider this question in 
Madan Lalv. State of H.P.22, wherein it has been held as 
follows: (SCC p. 472, paras 26-27) 
"26. 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 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. 
27. In the factual scenario of the present case, not only 
possession but conscious possession has been 
established. It has not been shown by the accused-
appellants that the possession was not conscious in the 
logical background of Sections 35 and 54 of the Act."" 
459 
A 
B 
c 
D 
E 
F 
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 G 
or even exercise of dominion and control as a result of 
concealment. The animus and the mental intent which is the 
primary and significant element to show and establish 
possession. Further, personal knowledge as to the existence H 
22 (2003) 1 sec 465
460 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A of the "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 intention is 
8 to exercise right over the substance or the chattel and to act 
as 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 
C 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 moment, in physical control. The situation cannot 
D 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 would exposit, the 
E accused-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 NDPSAct is made out.
The possessory right would 
F 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, there can be no scintilla of doubt that he was in 
G possession of the contraband article when the NDPSAct 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 after coming into force, the recovery of 
the possessed article takes place. Certainly, on the date of 
H recovery, he is in possession of the contraband article and
MOHAN LAL v. STATE OF RAJASTHAN 
461 
[DIPAK MISRA, J.] 
possession itself is an offence. In such a situation, the accused-
A 
appellant cannot take the plea that he had committed an 
offence under Section 9 of the Opium Act and not under Section 
18 of the NDPSAct. 
17. After dealing with the concept of possession, we B 
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 C 
operation of law imposing 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 i.e. when an act was not an offence when it was D 
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 E 
Pradesh2-3, 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 thereof. The Constitution Bench has held that:-
F 
" .... 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 commission of the offence or 
G 
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 
H 
23 AIR 1953 SC 394
462 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A 
constitutional objection by way of discrimination or the 
violation of any other fundamental right may be involved." 
In the instant case, Article 20(1) would have no 
application. The actus of possession is not punishable with 
B retrospective affect. No offence is created under Section 18 
. 
. 
of the NDPSActwith 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. Therefore, if a person is in 
C 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. 
D 
18. We would be failing in our duty, if we do not analyse 
the decision in Harjit Singh (supra). In the said case the Court 
was dealing with the Notification dated 18.11.2009 that has 
replaced the part of the Notification dated 19.10.2001. 
E Dealing yvoith the said aspect, the Court held:-
"13. Notification dated 18-11-2009 has replaced the part 
of the Notification dated 19-10-2001 and reads as under: 
"In the Table at the end after Note 3, the following Note 
F 
shall be inserted, namely: 
(4) The quantities shown in Column 5 and Column 6 
of the Table relating to the respective drugs shown in 
Column 2 shall apply to the entire mixture or any 
G 
solution or any one or more narcotic drugs or
psychotropic substances of that particular drug in 
dosage form or isomers, esters, ethers and salts of 
these drugs, including salts of esters, ethers and 
isomers, wherever existence of such substance is 
H
MOHAN LAL v. STATE OF RAJASTHAN 
[DIPAK MISRA, J.] 
possible and not just its pure drug content." 
14. Thus, it is evident that under the aforesaid notification, 
the whole quantity of material recovered in the form of 
mixture is to be considered for the purpose of imposition 
of punishment. However; the submission is not 
acceptable as it is a settled legal proposition that a penal 
provision providing for enhancing the sentence does not 
operate retrospectively. This amendment, in fact, 
provides for a procedure which may enhance the 
sentence. Thus, its application would be vio)ative of 
restrictions imposed by Article 20 of the Constitution of 
India. We are of the view that the said Notification dated 
tS-11-2009 cannot be applied retrospectively and 
therefore, has no application so far as the instant case is 
concerned." 
The present fact situation is absolutely different and, 
therefore, the said decision has no applicability to the case at 
hand. 
463 
A 
B 
c 
D 
E 
19. Learned counsel for the State has contended that 
the offence in question is a continuing offence, for the offence 
is basically a possession of the contraband articles. He has 
commended us to the authority in State of Bihar v. Deokaran 
Nenshi &Anr.24, wherein it has been held that:-
F 
"A continuing offence is one which is susceptible of 
continuance and is distinguishable from the one which is 
committed once and for all. It is one of those offences 
which arises out of a failure to obey or
comply with a rule 
or its requirement and which involves a penalty, the liability 
for which continues until the rule or its requirement is 
obeyed or complied with. On every occasion that such 
disobedience or .non-compliance occurs and reoccurs, 
.. (1972) 2 sec s90 
G 
H
464 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A 
there is the offence committed. The distinction between 
the two kinds of offences is between an act or omission 
which constitutes an offence once and for all and an act 
or omission which continues, and therefore, constitutes 
B 
a fresh offence every time or occasion on which it 
continues. In the case of a continuing offence, there is 
thus the ingredient of continuance of the offence which is 
absent in the case of an offence which takes place when 
an act or omission is committed once and for all." 
C 
20. Mr.Shiv Mangal Sharma, learned MG for the State 
has also drawn inspiration from Udai Shankar Awasthi v. 
State of Uttar Pradesh and Anr.25 In the said case, while 
dealing with the concept of continuing offence, after referring 
0 to Section 472 of Criminal Procedure Code, 1973, (CrPC) 
the Court has stated that the expression "continuing offence" 
has not been defined in CrPC because it is one of those 
expressions which does not have a fixed connotation and, 
therefore, the formula of universal application cannot be 
E formulated in this respect. The court referred to Balakrishna 
Sava/ram Pujari Waghmare v. Shree Dhyaneshwar 
Maharaj Sansthan26 , Gokak Patel Vo/kart Ltd. v. 
Dundayya Gurushiddaiah Hiremath17 and eventually held 
thus: 
F 
G 
"Thus, in view of the above, the law on the issue can be 
summarised to the effect that, in the case of a continuing 
offence, the ingredients of the offence continue i.e.
endure 
even after the period of consummation, whereas in an 
instantaneous offence, the offence takes place once and 
for all i.e. when the same actually takes place. In such 
25 c2013) 2 sec 435 
"" AIR 1959 SC 798 
H 
21 (1991) 2 sec 141
MOHAN LAL v. STATE OF RAJASTHAN 
465 
[DIPAK MISRA, J.] 
cases, there is no continuing offence, even though the 
A 
damage resulting from the injury may itself continue." 
21. In this context, it would be fruitful to refer to a three-
Judge Bench decision in Maya Rani Punj v. Commissioner 
of/ncome Tax, DelhP8. In the said case, the Court approved B 
what has been said by the High Court of Bombay in State v. 
A.H. Bhiwandhiwa/ia29• For the sake of completeness, we 
reproduce the relevant paragraph:-
"ln State v. A.H. Bhiwandiwalla (a decision referred to in 
c 
CWTv. Suresh Seth30), Gajendragadkar, J. (as hethen 
was), after quoting the observations of Beaumount, C.J. 
in an earlier Full Bench decision of that Court observed: 
"Even so, this expression has acquired a well-recognised 
o 
meaning in criminal law. If an act committed by an 
accused person constitutes an offence and if that act 
continues from day to day, then from day to day a fresh 
offence is committed by the accused so long as the act 
continues. Normally and in the ordinary course an offence 
E 
is committed only once. But we may have offences which 
can be committed from day to day and it is offences falling 
·in this latter category that are described as continuing . 
offences."" 
22. We have dwelled upon the said submission, as 
the learned counsel for the State has seriously addressed that 
F 
it is a continuing offence. We have already opined that on the 
date the NDPS Act came into force, the
accused-appellant 
was still in possession of the contraband article. Thus, it was G 
possession in continuum and hence, the principle with regard 
to continuing offence gets attracted. 
28 (1986} 1 sec 445 
28 AIR 1955 Born 161 
"' (1981} 2 sec 190 
H
466 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A 
23. It is submitted by Ms. Aishwarya Bhati, learned 
counsel for the appellant that there has been non-compliance 
of Section 42 of the NDPS Act and hence, the conviction is 
vitiated. It is urged by her that the Investigating Officer has not 
reduced the information to writing and has also not led any 
B evidence of having made a full report to his immediate official 
superior. The High Court has taken note of the fact that 
information given to Bheem Singh, PW-12, and recovery was 
made by him who was the Sub-Inspector and SHO at the police 
C station. That apart, in this context, we may refer with profit to 
the Constitution Bench decision in Karnail Singh v. State of 
Haryana31, wherein the issue emerged for consideration is 
whether Section 42 of the NDPSAct is mandatory and failure 
to take down the information in writing and forthwith sending a 
o report to his immediate officer superior would cause prejudice 
to the accused. The Court was required to reconcile the 
decisions in Abdul Rashid Ibrahim Mansuri v. State of 
Gujarat» and Sajan Abraham v. State of Kera/a". The 
Constitution Bench explaining the position opined that Abdul 
E Rashid (supra) did not require about literal compliance with 
the requirements of Section 42(1) and 42(2) nor did Sajan 
Abraham (supra) hold that requirement of Section 42(1) and 
42(2) need not be fulfilled at all. The larger Bench summarized 
the effect of two decisions. The summation is
reproduced 
F below:-· 
G 
"(a) The officer on receiving the information of the nature 
referred to in sub-section (1) of Section 42 from any 
person had to record it in writing in the register concerned 
and forthwith send a copy to his immediate official 
superior, before proceeding to take action in terms of 
clauses (a) to (cf) of Section 42(1) . 
., (2009) a sec 539 
H 
S2 (2000) 2 sec 513 
33 (2001) e sec 692
MOHAN LAL v. STATE OF RAJASTHAN 
[DIPAK MISRA, J.] 
(b) But if the information was received when the officer 
was not in the police station, but while he was on the 
move either on patrol duty or otherwise, either by mobile 
phone, or other means, and the information calls for 
immediate action and any delay would have resulted in 
the goods or evidence being removed or destroyed, it 
would not be feasible or practical to take down in writing 
the information given to him, in such a situation, he could 
take action as per clauses (a) to (d) of Section 42(1) and 
thereafter, as soon as it is practical, record the information 
in writing and forthwith inform the same to the official 
superior. 
(c) In other words, the compliance with the requirements 
of Sections 42( 1) and 42(2) in regard to writing down the 
information received and sending a copy thereof to the 
superior officer, should normally precede the entry, search 
and seizure by the officer. But in special circumstances 
involving emergent situations, the recording of the 
information in writing and sending a copy thereof to the 
official superior may get postponed by a reasonable 
period, that is, after the search, entry and seizure. The 
question is one of urgency and expediency. 
( d) While total non-compliance with requirements of sub-
sections (1) and (2) of Section 42 is impermissible, 
delayed compliance with satisfactory explanation about 
the delay will be acceptable compliance with Section 42. 
To
illustrate, if any delay may result in the accused 
escaping or the goods or evidence being destroyed or 
removed, not recording in writing the information 
received, before initiating action, or non-sending of acopy 
of such information to the official superior forthwith, may 
not be treated as violation of Section 42. But if the 
467 
A 
B 
c 
D 
E 
F 
G 
H
468 
A 
B 
c 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
information was received when the police officer was in 
the police station with sufficient time to take action, and 
if the police officer fails to record in writing the information 
received, or fails to send a copy thereof, to the official 
superior, then it will be a suspicious circumstance being 
a clear violation of Section 42 of the Act. Similarly, where 
the police officer does not record the information at all, 
and does not inform the official superior at all, then also 
it will be a clear violation of Section 42 of the Act. Whether 
there is adequate or substantial compliance with Section 
42 or not is a question of fact to be decided in each case. 
The above position got strengthened with the amendment 
to Section 42 by Act 9 of 2001." 
0 
24. In Rajinder Singh v. State of Haryana34, placing 
reliance on the Constitution Bench, it has been opined that 
total non-compliance with the provisions of sub-sections ( 1) 
and (2) of Section 42 of the Act is impermissible but delayed 
compliance with satisfactory explanation for the delay can, 
E however, be countenanced. 
25. In the present case, the High Court has noted that 
the information was given to the competent authority. That 
apart, the High Court has further opined that in the case at 
F hand Section 43 applies. 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 search is made in a public place, the officer taking the 
search is not required to comply with sub Sections ( 1) and (2) 
G of Section 42 of the NDPS Act. As has been stated earlier, 
the seizure has taken place beneath a bridge of public road 
accessible to public. The officer, Sub-Inspector is an 
empowered officer under Section 42 of the Act. As the place 
is a public place and Section 43 comes into play, the question 
H 
,. c2011) a sec 130
MOHAN LAL v. STATE OF RAJASTHAN 
469 
[DIPAK MISRA, J.] 
of non-compliance of Section 42(2) does not arise. The A 
aforesaid view gets support from the decisions in Directorate 
of Revenue and Anr. v. Mohammed Nisar Holia35 and 
State, NCT of Delhi v. Malvinder Singh36• 
26. Learned counsel for the appellant has also B 
contended that there has been non-compliance of Section 57 
of the NDPSAct, which reads as follows:-
"Report of arrest and seizure - Whenever any person 
makes any arrest or seizure under this Act, he shall, within 
c 
fortyeight hours next after such arrest or seizure, make a 
full report of all the particulars of such arrest or seizure to 
his immediate official superior." 
27. A three-Judge Bench in Sajan Abraham (supra), D 
placing reliance on State of Punjab v. Balbir Singh37, has 
held that Section 57 is not mandatory in nature and when 
substantial compliance is made, it would not vitiate the 
prosecution case. In Karnail Singh (supra), the Constitution 
Bench, while explaining the ratio laid down in Sajan Abraham E 
(supra), analysed the requirement of Section 42(1) and 42(2) 
and opined that the said pronouncement never meant that those 
provisions need not be fulfilled at all. However, the Constitution 
Bench has not delved into the facet of Section 57 of the NDPS 
Act. 
F 
28. In Kishan Chand v. State of Haryana38, the Court 
while dealing with the compliance of Sections 42, 50 and 57, 
has opined thus:-
"21. When there is total and definite
non-compliance with 
3• (2oos) 2 sec 370 
,. (2007) 11 sec 314 
37 (1994) 3 sec 299 
3• (2013) 2 sec so2 
G 
H
470 
A 
B 
c 
D 
E 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
such statutory provisions, the question of prejudice loses 
its significance. It will per se amount to prejudice. These 
are indefeasible, protective rights vested in a suspect 
and are incapable of being shadowed on the strength of 
substantial compliance. 
22. The purpose of these provisions is to provide due 
protection to a suspect against false implication and 
ensure that these provisions are strictly complied with to 
further the legislative mandate of fair investigation and 
trial. It will be opposed to the very essence of criminal 
jurisprudence, if upon apparent and admitted non-
compliance with these provisions in their entirety, the 
court has to examine the element of prejudice. The 
element of prejudice is of some significance where 
provisions are directory or are of the nature admitting 
substantial compliance. Where the duty is absolute, the 
element of prejudice would be of least relevance. 
Absolute duty coupled with strict compliance would rule 
out the element of prejudice where there is total non-
compliance with the provision." 
After so stating, the Court proceeded to address the 
separate rights and protection under the said provisions and 
F in that context ruled:-
G 
H 
"Reliance placed by the learned counsel appearing for 
the State on SajanAbraham is entirely misplaced, firstly 
in view of the Constitution Bench judgment of this Court 
in Kamai/ Singh. Secondly, in that case the Court
was 
also dealing with the application of the provisions of 
Section 57 of the Act which are worded differently and 
have different requirements, as opposed to Sections 42 
and 50 of the Act. It is not a case where any reason has 
come in evidence as to why the secret information was
MOHAN LAL v. STATE OF RAJASTHAN 
[DIPAK MISRA, J.] 
not reduced to writing and sent to the higher officer, which 
is the requirement to be adhered to "pre-search". The 
question of sending it immediately thereafter does not 
arise in the present case, as it is an admitted position 
that there is total non-compliance with Section 42 of the 
Act. The sending of report as required under Section 57 
of the Act on 20-7-2000 will be no compliance, factually 
and/or in the eye of the law to the provisions of Section 
42 of the Act. These are separate rights and protections 
available to an accused and their compliance has to be 
done in accordance with the provisions of Sections 42, 
50 and 57 of the Act. They are neither interlinked nor 
interdependent so as to dispense compliance of one with 
the compliance of another. In fact, they operate in different 
fields and at different stages. That distinction has to be 
kept in mind by the courts while deciding such cases." 
29. In the instant case, on perusal of the evidence, it is 
clear that there has been substantial compliance of Section 
471 
A 
B 
c 
D 
57 of the NDPSAct and, therefore, the question of prejudice E 
does not arise. 
30. Ms. Bhati, learned counsel forthe appellant has also 
contended that the appellant was in custody in connection with 
FIR no. 95of1985 and while in custody, he suffered a disclosure F 
statement and led to discovery of the contraband articles. 
Submission of the learned counsel for the appellant is
that the 
said statement cannot be taken aid of for the purpose of 
discovery in connection with the present case. 
It is 
demonstrable from the factual matrix that in connection with G 
FIR No. 95 of 1985, he was arrested and while he was 
interrogated, he led to discovery in connection with the stolen 
contraband articles from the malkhana which was the matter 
of investigation in FIR no. 96of1985. There is no shadow of 
H
472 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A doubt that the accused-appellant was in police custody. 
Section 27 of the Indian EvidenceAct, 1872 provides that when 
any fact is deposed to as discovery in consequence of the 
information received from a person accused of any offence in 
custody of a police officer, so much of such information whether 
B it amounts to confession or not as 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 [See A.K 
C Subraman and Others v. Union of India and Others39]. 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 of information from a person 
accused of any offence. Therefote, when the accused-
D 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 
1985, is absolutely unsustainable. Be it stated here, that the 
recovery has been proven to the hilt. The accused, 
E accompanied by the witnesses, had gone beneath the bridge 
built between Gupal Sariya and Madiyai and he himself had 
removed the big stone and dug the earth and took out the 
packet which was bound in a long cloth from which a packet 
was discovered and the said packet
contained 10 kg and 200 
F gms of opium. The learned trial Judge as well as the High 
Court has, by cogent and coherent reasons, accepted the 
recovery. On a scrutiny of the same, we also find that there is 
nothing on record to differ with the factum of recovery of the 
G contraband articles .. 
31. Another submission that has been advanced by the 
learned counsel for the appellant is that the seized articles were 
not sent immediately for chemical examination. The FSL report, 
H Ex. P-14, dated 15.9.1986 states that a letter along with a 
39 AIR 1976 SC 483
MOHAN LAL v. STATE OF RAJASTHAN 
473 
[DIPAK MISRA, J.] 
sealed packet was received with seals intact. The said report A 
further mentions that packet was covered in white cloth and on 
opening of the packet, the examiner found a cylindrical tin and 
the substance on examination was found to be an opium having 
1.44 % morphine. The seal being intact, the description of the 
case number and the impression of seal having been fixed on B 
memo of recovery, there is no reason or justification to discard 
the prosecution case on the ground of delay on this score. In 
Hardip Singh v. State of Punjab40, a two-Judge Bench while 
dealing with the question of delay in sending the samples of C 
opium to the FSL, opined that it was of no consequence, for 
the fact of the recovery of the said sample from the possession 
of the appellant had been proven and established by cogent 
and reliable evidence and that apart, it had also come in 
evidence that till the date of parcels of samples were received o 
by the Chemical Examiner, the seal put on that parcel was 
intact. Under these circumstances, the Court ruled that the 
said facts clearly proves and establishes that there was no 
tampering with the aforesaid seal in the sample at any stage 
and the sample received by the analyst for chemical E 
examination contained the same opium which was recovered 
from the possession of the appellant. The plea that there was 
40 days delay was immaterial and would not dent the 
prosecution case. 
32.
In view of the aforesaid analysis, we do not perceive 
any substance in this appeal and accordingly, the same is 
dismissed. 
F 
Kalpana K. Tripathy 
Appeal dismissed. 
G 
'° c2ooa) a sec 557