Tag Archives: dominion

Term Possession – With reference to Criminal Law

The term “possession” consists of two elements. 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:
“Possession.—Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel, 219 Kan616. 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 conditions 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 both the power and the intention at a 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. Of one person alsone 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.”
In the said Dictionary, the term “possess” in the context of narcotic drug laws means:
“Term “possess” under narcotic drug laws, means actual control, care and management of the drug. Collini v. State, 487 SW 2d 132. Defendant ‘possesses’ controlled substance when defendant knows of substance’s presence, substance is immediately accessible, and defendant exercises ‘dominion or control’ over substance. State v. Hornaday, 105 Wash 2d 120.
Possession as necessary for conviction of offence of possession of controlled substances with intent to distribute may be constructive as well as actual, United States v. Craig, 522 F 2d 29. The defendants must have had dominion and control over the contraband with knowledge of its presence and character. United States v. Morando-Alvarez, 520 F 882.
Possession as an element of offence of stolen goods, is not limited to actual manual control upon or about the person, but extends to things under one’s power and dominion. McConnel v. State, 48 Ala App 523.
Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. United States v. Ellison, 469 F 2d 413.
To constitute ‘possession’ of a concealable weapon under statute prescribing possession of a concealable weapon by a felon, it is sufficient that defendants have constructive possession and immediate access to the weapon. State v. Kelley, 12 Or App 496.
In Stroud’s Dictionary, the term “possession” has been defined as follows:
“ A person does not lose ‘possession’ of an article which is mislaid or thought erroneously to have been destroyed or disposed of, if, in fact, it remains in his care and control. (R v. Buswell, (1972) 1 WLR 64 : (1972) 1 All ER 75). Mohan Lal v.State of Rajasthan, (2015) 6 SCC 222.

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Criminal Breach of trust vis-à-vis offence of cheating

The ingredients in order to constitute a criminal breach of trust are:
(1) Entrusting a person with property or with any dominion over property,
(2) That person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
The ingredients of an offence of cheating are:
(1) There should be fraudulent or dishonest inducement of a person by deceiving him,
(2) (a) The person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or
(b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(3) In cases covered by, 2(b) the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. Arun Bhandari v. State of U.P., (2013) 2 SCC 801.

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