TMI Blog2009 (7) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ) and sentenced her to undergo rigorous imprisonment for a period of ten years, and to pay a fine of ₹ 1 lac, and in default of payment of the same to undergo rigorous imprisonment for another period of two years, for having found in possession of 2 bags containing 61 Kgs. of poppy husk, without any permit or licence. 2. The facts stated in brief are that on 19.12.1988, Sub Inspector Uttam Singh along with ASI Kasturi Lal and other police officials, was going from village Shambu to Village Tepla, Rajgarh and Ram Nagar Sainia, for patrol duty and when the police party reached near the turning of Village Darian, the appellant was found sitting on two bags. It is alleged that on seeing the police party, the appellant turned her face towards her village. Due to the conduct and behaviour of the appellant and on suspicion, Sub Inspector Uttam Singh asked her about the contents of the bags. She replied by stating that the bags contained poppy husk. It was also alleged that in the meanwhile, Rajwant Pal Singh, an independent witness came there and he also joined the police party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al court sentenced the appellant to undergo minimum sentence of rigorous imprisonment for a period of ten years and to pay a fine of ₹ 1 lac under section 15 of the NDPS Act and in default thereof to undergo rigorous imprisonment for another period of two years. 4. Being aggrieved by the aforesaid order, the appellant filed an appeal before the High Court of Punjab and Haryana challenging the aforesaid order of conviction and sentence. The High Court after hearing the parties passed the Judgment and Order on 15.05.2008 whereby the High Court upheld the Judgment and Order passed by the trial court after dismissing the appeal filed by the appellant herein. 5. Being aggrieved by the Judgment and Order passed by the High Court, the present appeal was filed by way of special leave. 6. Ms. Kamini Jaiswal, learned counsel appearing for the appellant submitted that no case of conviction and sentence was made out on the basis of evidence on record. It was also submitted by her that the appellant was a lady of about 70 years and that there was some bias of the police officers against her as she had initiated certain proceedings against them in the past. It was further submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that when the said statement came on evidence the same appears to have been objected to but there was no suggestion given in the cross examination on the behalf of the appellant at the time of examination of the said witness. In any case the said two bags were carried by the appellant as stated by the said witness, and upon search the same were found to contain poppy husk. 8. Since recovery of poppy husk was made from the bags carried by the appellant, therefore, the submission that there was violation of the provisions of Sections 52 - 57 of the NDPS Act is baseless and devoid of any merit. Reference in this regard may be made to the decision of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172; Avtar Singh v. State of Punjab, (2002) 2 SCC 419; State of Punjab v. Balkar Singh, (2004) 3 SCC 582; Dilip v. State of M. P.; State of Haryana v. Mai Ram, (2008) 8 SCC 292; and Hardip Singh v. State of Punjab, (2008) 8 SCC 557. 9. In Madan Lal v. State of H. P., (2003) 7 SCC 465, it was held by this Court that the issue with regard to conscious possession is to be determined on the fact situation of each case. The Court observed as follows in relevant paras:: 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 10.She was found sitting on the bags in the road and seeing the police party she behaved in a suspicious manner. Nothing has come on evidence to show that at that time any other person was present at the scene of occurrence. When she was asked about the contents in the bag she herself admitted that it contained poppy husk. Therefore, her possession of the contraband goods was conscious possession. So far as the submission with regard to alleged bias of the prosecution is concerned, we are of the view that no case of bias has been made out for the earlier proceedings which were initiated by the appellant herself by filing an application under section 438 CrPC for anticipatory bail. Another incident which is referred to and relied upon by the defence to show bias is that Sub Inspector Uttam Singh (PW-6) along with other police officials raided the appellant s residence but nothing incriminating was recovered from there. That itself does not make out a case of bias when she was found in broad light having in possession two bags of poppy husk. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search be made. (4) No female shall be searched by anyone excepting a female. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra1, State of Punjab v. Baldev Singh2 and Gurbax Singh v. State of Haryana3.) 15. The language of Section 50 is implicitly (sic explicitly) clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case2. A similar question was examined in Madan Lal v. State of H.P.4 16. Above being the position, the finding regarding noncompliance with Section 50 of the Act is also without any substance. 13. As far as delay in sending the samples are concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case (supra), wherein there was a gap of 40 days between seizure and sending the sample to chemical examiner. Despite the said fact the Court held that in view of cogent evide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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