[CASE NUMBER] -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of Decision:23.11.2009 [ENTITY] and another Appellants Vs. [ENTITY] Respondent CORAM:- HON'BLE MR. JUSTICE [ENTITY] Present:- Mr. [ENTITY], Advocate for the appellants. Mr. [ENTITY], Deputy Advocate General, Punjab. JUDGMENT
[ENTITY], J.
This appeal is directed against the judgment/ order of sentence dated 18.7.2005 passed by the Court of learned Judge, Special Court, Patiala whereby he convicted and sentenced the accused [ENTITY] and [ENTITY] to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lac each under [SECTION] of the [ACT] (for brevity, `the Act') and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for one year and acquitted the accused [ENTITY] by giving benefit of doubt.
Shortly put, the facts of the prosecution case are that on 4.7.2002, [ENTITY], In-charge CIA Staff, [ENTITY] amongst other police officials happened to be present near Gurudwara Isharsar Sahib within the area of Village Bijalpur while on Allwyn Nissan bearing registration No.PB-11E-9738. He received secret information that the accused [ENTITY] and [ENTITY] riding truck bearing registration No.UP-11D-8352 being driven by accused [ENTITY] are indulging in the smuggling of poppy husk and are searching for the customers in the villages. There is a special box in the truck where the poppy husk is concealed. They have also kept motor cycle make boxer of red colour for calling the customers. They have parked a truck on a kacha path leading from Village Asarpur Chupki in the area of Village Nassupur in order to sell the poppy husk and if a `nakabandi' is laid at the culvert in the area of Village Nassupur, they can be arrested. This information was embodied in ruqa, which was sent to the Police Station, [ENTITY] wherein on its basis, formal FIR was registered. The `naka' was set up at the said culvert. [ENTITY] of Village Asarpur came across the police party near the bridge of drain. He was also associated with the police party. In the meanwhile, the aforesaid truck was spotted coming on the kacha passage from the side of Village Nassupur. The same was made to stop. It was being driven by [ENTITY] - accused. [ENTITY] accused was sitting by the side of the driver. [ENTITY] accused was seated on the motor cycle which was lying in the back portion of the truck. They all three were apprehended. The aforesaid In-charge CIA Staff, [ENTITY] informed the accused of their right to have search of the truck in the presence of a Gazetted Officer or a Magistrate. On receipt of message, [ENTITY], DSP, [ENTITY] came at the spot. He disclosed his identity to the accused. The accused agreed for search before him. On search of the truck, 35 bags containing poppy husk were recovered. When weighed, the contents of each bag came to 35 Kgs. Two samples of 250 grams each were drawn from each bag and converted into parcels. The residue was also made into parcels. All these parcels were sealed with seal `DS' belonging to [ENTITY], In-charge of CIA Staff, [ENTITY]. The sample seal was prepared. The sample parcels along with the case property were seized vide recovery memo. The seal after use was handed over to aforesaid [ENTITY]. The truck along with the certificate of registration, insurance and driving licence were seized through recovery memo. The motor cycle was also taken into possession. The accused were arrested. After completion of investigation, the charge-sheet was laid in the Court for trial of all the three accused.
The accused [ENTITY], [ENTITY] and [ENTITY] were charged under [SECTION] of the Act, to which they did not plead guilty and claimed trial.
To bring home guilt against the accused, the prosecution examined Constable [ENTITY] PW1, [ENTITY] PW2, Inspector [ENTITY] SHO PW3, [ENTITY] Investigator PW4, ASI [ENTITY] PW5 and closed its evidence by giving up [ENTITY], DSP and other police officials as unnecessary and [ENTITY], independent witness as having been won over by the accused. When examined under [SECTION] of [ACT], all the three accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. Accused [ENTITY] came up with the following plea:-
"I have been falsely involved in this present case by the police party of [ENTITY] at the instance of [ENTITY] and [ENTITY]. Nothing was recovered from me. Moreover I had been taken from my house on 3.7.2002 and falsely involved in this case."
Accused [ENTITY] put forth as under:-
"I have been falsely involved in this present case by the police party of [ENTITY]. I have no concern either with the case property or with the accused persons or with the truck involved in the case. In fact on 3.7.2k2 I came to Patiala for some domestic work. I had been waiting for some vehicle to go to [ENTITY] at Patiala Octroi Post for going to my village. In the meantime a truck came near Octroi Post Patiala, wherein [ENTITY] son of [ENTITY] of my village was sitting and on seeing me standing at the octroi Post Patiala, he stopped the vehicle and asked me to sit in the truck. I have no knowledge what material was loaded in the said truck. After covering some distance towards [ENTITY], the said truck was intercepted by some officials. Inquiry was also conducted by SP(D) Patiala, wherein I was found innocent. I was granted bail in the above noted case by Hon'ble High Court Chandigarh. As I was found innocent by the police, so my name has been mentioned in column No.2 of [ENTITY] under [SECTION] [ACT] I am innocent, but my name has been incorporated in the supplementary challan by the police with malafide intention. I am innocent. I am married and earns the livelihood of my family by cultivating my land. I have never committed any such offence. I want to defend the case."
Accused [ENTITY] took up the following plea:-
"I have been falsely involved in this present case by the police party. I am innocent and has falsely been involved in this case. The police has let off actual culprit [ENTITY] and has falsely introduced me in this case. No recovery was ever effected from me. I had come for attending some domestic work, but the police apprehended me and later on, this case has been planted upon me."
In their defence, they examined Constable [ENTITY] DW1, [ENTITY] DW2, [ENTITY] DW3 and [ENTITY] Inspector DW4.
After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused [ENTITY] as well as [ENTITY] and acquitted their co-accused [ENTITY]. [ENTITY] as well as [ENTITY] feeling aggrieved with their conviction/ sentence, have preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
On behalf of [ENTITY] - appellant, it has been strenuously urged that as emanates from the prosecution evidence, the recovered driving licence did not belong to this appellant rather the same has been issued in the name of one [ENTITY]. Furthermore, this appellant being 77 years of age, would have disabled to drive the truck in question.
I have well considered these submissions. Of course, in his statutory statement recorded under [SECTION] of [ACT], his age is recorded to be 77 years, but he has adduced no cogent evidence in proof of this fact. His brother [ENTITY] DW3 has deposed that "I have seen the licence on which the photo is of [ENTITY] my youngest brother. [ENTITY] and [ENTITY] are two different persons. My youngest brother [ENTITY] is misplaced for the last 2/ 2 years and thereafter he did not found us." May be that this appellant being the brother of [ENTITY] taking an undue advantage of his being missing started making use of his driving licence. This appellant belongs to Village Fazalpur Tehsil Badod District Baghput (U.P.). If he was not driving the stated truck, how he happened to be there in the truck in the Punjab State at the material time. It is in the cross-examination of his brother [ENTITY] (sic.) that "I came to know about case of accused [ENTITY] after about two months. Even then, I did not move any complaint before against anybody." If this appellant had been falsely implicated in this case, in all human probabilities, [ENTITY] (sic.) being brother of this appellant would have certainly made complaints against the Investigator and other police officials for having roped in this appellant falsely.
It has been further argued on behalf of the appellants that [ENTITY] DSP in whose presence, the recovery is alleged to have been effected, has not been examined for the reasons best known to the prosecution. For his withholding, an adverse inference ought to be drawn against conduct of the prosecution. This contention appears to be attractive, but without substance. Doubtless that this witness has been kept off the witness box, but at the same time, it is not to be lost sight of the fact that such a huge quantity of poppy husk worth lacs would have not been planted by an officer of the rank of In-charge of CIA Staff, [ENTITY]. Had the said witness been produced at the trial, his testimony would have merely resulted in duplication of the evidence tendered by [ENTITY] Investigator PW4 as well as other recovery witnesses on the record. Indeed, the evidence of [ENTITY] being Investigator was material. In re:
[PRECEDENT], it has been held by the Apex Court that "It is undoubtedly, the duty of the prosecution to lay before the Court all material evidence available to it, which is necessary for unfolding its case, but it would be unsound to lay down it as a general rule that every witness must be examined, even though his evidence may not be very material or even, if it is known that he has been won over or terrorised." To my mind, the evidence of the Investigating Officer was very much material and necessary for unfolding the prosecution case. As noted supra, he has been examined as PW4. Thus non-examination of [ENTITY] DSP as a prosecution witness hardly affects merits of the case.
It is further pressed into service on behalf of the appellants that [ENTITY], the independent witness has also been held back from the witness box with the result, the appellants have been deprived of their valuable right to cross-examine him.
I have given my thoughtful consideration to this submission. I am unable to persuade myself to agree therewith. The said independent witness has been given up on the specific pretext of his having been won over by the accused. The possibility cannot at all be ruled out that the witness of the prosecution can later on join hands with the accused and in that eventuality, the prosecution cannot be expected to produce the person as its witness who to its own knowledge is not going to support its case.
In re: Roop Singh v. [ENTITY], 1996(1) Recent Criminal Reports 146, a Division Bench of this Court has held as under:-
"A Panch witness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the Court and depose against an accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, brow-beating, threats, inducements, etc. To figure as a Panch- witness at the stage of police investigation, is one thing, and thereafter to give evidence before the Court is entirely a different thing. In fact, a Panch witness generally think twice before entering into a witness-box and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person [ENTITY] having been won over by the accused persons, is fully justified in the present day situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case."
In re: [PRECEDENT], it has been held as under:-
"Merely because of the failure on the part of the prosecution to produce any independent witness to the incident that occurred at a public place like a bus stand, where there must have been several of such witnesses, the prosecution case cannot be thrown out or doubted. Generally people are insensitive when a crime is committed even in their presence. The court instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
Further in re: [ENTITY] v. Balbir Singh, 1994(1) Recent Criminal Reports 736, it has been ruled by the Hon'ble Supreme Court that "there is no bar in recording the conviction by relying upon the statements of police officers." It has been observed in paragraph No.8 of the judgment that "It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official, but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
As would be apparent on the face of record, on 24.11.2004, [ENTITY] accused - appellant gave up DW [ENTITY] son of [ENTITY], who was also cited as a prosecution witness as unnecessary. May be that, this person was not inclined to depose falsely in favour of the accused and on sensing it to be so, he was given up. There being no substance, this contention is also overruled.
It has been further argued that as per Ex.PO Chemical Examiner's report, there is delay of as many as 11 days in sending the sample parcels for chemical analysis. The possibility of tampering with their contents during this interregnum cannot be ruled out. In re: [PRECEDENT], there was a delay of one month in sending sample to the Forensic Science Laboratory. There was no evidence that samples of the case property were tampered with. The seals on the samples, tallied with the specimen seal as per the forwarding authority letter. Under these circumstances, it was held by this Court that mere delay in sending the samples did not, in any way cause prejudice to the accused, nor did it go to prove that the samples were tampered with, until the same were deposited in the Office of Forensic Science Laboratory. Further in re: Mohan Singh v. [ENTITY], 2007 (4) Recent Criminal Reports (Criminal) 705, there was a delay of 10 days in sending the samples to the Forensic Science Laboratory. It was held by the Division Bench of this Court that mere delay in sending the same to the laboratory is not fatal, where there is evidence that the seized articles were kept in proper and safe custody. Further in re: [ENTITY] son of [ENTITY], resident of Haraj, Police Station Sheela Ganj, District Moti Hari (Bihar) v. The State of Haryana, 2009(2) Recent Criminal Reports (Criminal) 39, there was a delay of 7 days in sending the sample to the Forensic Science Laboratory. The delay was not explained. It was held that the prosecution has led cogent and convincing evidence that the sample was not tampered with during the period and thus the delay was not fatal to the prosecution. Again in [PRECEDENT], there was a delay of 20 days in sending the sample to the Forensic Science Laboratory. There was no evidence that the sample was tampered with. The report of the Forensic Science Laboratory indicated that the seals of the sample were intact, when it reached the laboratory. The conviction was upheld. In view of these authorities, the alleged delay should not be viewed seriously. In re: [PRECEDENT], the sample of cannabis (ganja) was sent for chemical examination after four days of recovery. It was observed by the Apex Court that "The evidence of PW-1 was categorical to the effect that the articles were kept in the Excise Malkhana from where they were brought and sent for chemical examination. This relevant aspect appears to have been missed by the High Court. In [PRECEDENT]'s case (supra), it was not laid down that whenever there is delay in sending the samples, the prosecution version would become vulnerable. What was emphasised related to proper and safe custody of the seized articles. In the background to that particular case, when delay of 3 months was there and there was no clear evidence as to with whom the articles were lying, the decision was rendered. No evidence was led to show that the contraband articles were in proper custody and in proper form. But the factual situation is different here. That being so, the High Court's judgment does not stand scrutiny and is set aside. The conviction as done by the trial Court was proper." It was also held that merely because the articles were kept in the excise malkhana for four days would not make the prosecution version suspect.
Coming to the present one, the sample parcels were carried by [ENTITY] Constable PW1 to the Office of Chemical Examiner. In his affidavit Ex.PA, he has testified that he did not tamper with the contents of the sample parcels, nor the same were allowed to be tampered with by anyone else during the period, the same remained in his custody. [ENTITY] PW2 with whom the case property was deposited has tendered his affidavit Ex.PB. [ENTITY] SHO PW3 has testified that "Thereafter, on my direction and in my presence, the case property was deposited by [ENTITY] with the MHC [ENTITY] in intact condition." On reading this entire evidence in conjunction with Chemical Examiner's report, it leads to an irresistible conclusion and an inescapable inference that the seals of the sample parcels were not allowed to be tampered with at any stage right from their seizure till the same had reached the Office of the Chemical Examiner. There being no evidence to the effect that these parcels were not kept in property custody or were tampered with, this contention being bereft of any merit is turned down.
The next argument having been raised on behalf of the appellants is that the conscious possession of the appellants qua the recovered poppy husk bags has not been established. I regret my inability to be one with the learned counsel for the appellants. In re: [PRECEDENT] v. [ENTITY], 2004(1) Apex Criminal 482, the accused was sitting on gunny bags containing contraband. It was held by Hon'ble the Supreme Court that "Word `conscious' means awareness about a particular fact. It is a statement of mind which is deliberate or intended. Expression `possession' is a polymorphus term which assumes different colours in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes. 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] of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of [SECTION] where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in [ENTITY] and another v. State of Himachal Pradesh, 2003(6) SCALE 483".
In the present one, [ENTITY] - appellant was driver on the truck in question whereas [ENTITY] - appellant was sitting by his side at the time when the truck was intercepted. As already noticed, as many as 35 bags of poppy husk were recovered. Such a mind boggling quantity of poppy husk, by no stretch of speculation, could be foisted by the Investigator. He could not afford to arrange these bags containing poppy husk worth lacs from any source for the purpose of planting it. To crown it all, the record is quite barren to show that the Investigating Officer was inimically disposed towards either appellant on any score. There being no previous enmity, animus or ill-will, he could not be expected to frame the appellants. The possession of poppy husk bags of the appellants has been abundantly established. When these bags were being loaded, [ENTITY] being the driver and [ENTITY] being the occupant in the cabin of the truck would have ascertained as to what were their contents. How they came to be in possession of these bags was within their special knowledge. Thus in view of [PRECEDENT] (supra) as well as [ENTITY] and another's case (supra), presumption arises that these appellants were in conscious possession of these poppy husk bags and the presumption arising under [SECTION] and [SECTION] of the Act operate in favour of the prosecution.
Adverting to the defence evidence, Constable [ENTITY] DW1 in a nutshell has deposed that there is entry to release the truck and motor cycle on superdari, but there is nothing regarding the fact that to whom or on which date, the same were given on superdari. To my mind, this evidence in no manner affects merits of the prosecution case or is helpful to the appellants. As regards [ENTITY] DW2, he has deposed that "I have brought the original DDR register of [ENTITY] pertaining to this case. The copy of Report No.14 dated 4.7.2002 is Ex.DD. It is correct that the pen and ink used for entry of Canter No.UP11D/8352 is different from the other matter written in the entry no.14 of DDR." It is in his cross-examination that the case property intact was deposited with MHC [ENTITY]. Merely because the pen and ink used for entry of the said Canter was different from the other matter written in the said entry, hardly affects merits of the case. Inspector [ENTITY] DW4 has merely proved the copy of report submitted under [SECTION] of [ACT] This report need not be dilated upon for the simple reason that [ENTITY] accused has already been acquitted by the trial Court.
No other material point has been urged or agitated on behalf of the appellants.
On analysing and scrutinising the entire prosecution evidence with due care and caution, it transpires that no fault can be found with the conviction recorded by the learned trial Court. Consequently, the conviction is maintained. As regards the sentence, the learned trial Court has inflicted minimum sentence prescribed under [SECTION] of the Act. Thus, no interference in any manner is called for. [ENTITY], this appeal is dismissed.
November 23, 2009 ( [ENTITY] ) renu JUDGE Whether to be referred to the Reporter? Yes/No