Crl. Appeal No.1224-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.1224-SB of 1999 Date of Decision : September 19, 2008 Darshan Singh S/o Joginder Singh, ...Appellant R/o VillageShahabad. Versus The State of Haryana ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. K.S.Dhaliwal, Advocate, with Mr. Baljinder Singh, Advocate, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 16.11.1999, and the order of sentence dated 18.11.1999, rendered by the Judge, Special Court, Karnal, vide which he convicted the accused/appellant, for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of 2 ½ years, for having been found in possession of 7 bags, out of which 4 bags, each containing 37 kgs. 250 grams poppy-husk, and 3 bags, each containing 36 kgs. 250 grams poppy-husk, without any permit or licence. Crl. Appeal No.1224-SB of 1999 2 2. The facts, in brief, are that on 9.9.1995, Ram Saran, Inspector, alongwith other police officials, was present, at bus stand of village Danoli, on Assandh-Safidon road, in connection with patrol duty, and checking, when Roor Singh, independent witness of village Bilona met them. In the meanwhile, the accused was seen coming from the side of Safidon, in a bullock cart, which was loaded with gunny bags. On seeing the police party, he stopped the bullock cart. On suspicion, he was apprehended. On interrogation, he disclosed his name as Darshan Singh S/o Joginder Singh R/o Danoli. Ram Saran, Inspector, checked the contents of 7 gunny bags, lying in the bullock cart. 4 bags, were found containing 37 kgs. 250 grams poppy-husk each, whereas, 3 bags, were found containing 36 kgs. 250 grams poppy-husk each. A sample of 250 grams poppy-husk, was taken out from each of the bags, and the remaining poppy- husk, was kept into the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed with the seals, and taken into possession, vide a separate recovery memo. The accused was arrested. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The statements of the witnesses, were recorded. After the completion of investigation, he was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Naresh Chander, HC (PW-1), Ranbir Singh, Constable (PW-2), Jagdev Singh, ASI, (PW-3), and Ram Saran, Inspector, (PW-4), the Investigating Officer. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against Crl. Appeal No.1224-SB of 1999 3 him, in the prosecution evidence. He pleaded false implication. He, however, examined Roor Singh (wrongly typed as Arur Singh, in the impugned judgment) (DW-1), in his defence. Thereafter, he closed his defence evidence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused/appellant, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that Roor Singh, independent witness, was joined, but he was not produced by the prosecution, as a result whereof, it can be said that the prosecution withheld, the best evidence, in its possession. He further submitted that an adverse inference could be drawn that, had he been examined, he would not have supported its case. It is, no doubt, true that Roor Singh, independent witness, was joined, at the time of the alleged recovery, but was given up as won over, by the Public Prosecutor for the State, vide statement dated 25.9.1997, as he sided with the accused, during the course of trial. The fact that he was won over by the accused, was duly strengthened, when he was examined as, DW-1, by the accused. Under these circumstances, in my considered opinion, the Public Prosecutor for the State, took a wise decision, in giving up, such a witness, as he very well knew that, in case, he was examined, he would damage the case of the prosecution. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution, to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that Crl. Appeal No.1224-SB of 1999 4 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 terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements and giving up of the public witnesses, as won over, is fully justified, in the present day situation prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness was won over by the accused, and only the officials witnesses were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another Vs. State of Gujrat AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined by it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. In this view of the matter, the trial Court was, thus, right in recording conviction and awarding sentence, to the accused. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellant, that Roor Singh, appeared as DW-1. He denied that no recovery was effected, in his presence. He further submitted that had any recovery been effected, in his Crl. Appeal No.1224-SB of 1999 5 presence, he would have certainly made such a statement. He further submitted that the statement of Roor Singh, who was given up, as won over, by the Public Prosecutor for the State, clearly made the case of the prosecution false. The submission of the Counsel for the appellant, does not appear to be correct. Roor Singh (DW-1), during the course of his cross-examination stated that Exs.PC and PC/1, two documents prepared at the spot, bore his signatures, but the same were obtained, on blank papers, by the Police. The mere fact that his signatures existed on these documents, in itself, clearly proved that he was present, at the time of search and seizure. In case, his signatures had been obtained on blank papers, then he could move an application before the Higher Police Authorities, that he did not witness the alleged search and seizure, but he was introduced as a witness, to this case later on. He, however, did not do so. His explanation, in this regard, is clearly unacceptable. Since, he had been won over by the accused, he had been left with no option, than to say that the search and seizure, was not effected, in his presence. In State of Rajasthan Vs. Udai Lal, 2008(2) RCR (Criminal) 956 (S.C.), 4 independent witnesses were joined, and examined, by the prosecution. They resiled from their statements. They, however, admitted their signatures, on the documents. In these circumstances, it was held by the Apex Court, that their evidence did not affect the merits of the case, when the other evidence produced by the prosecution, was cogent, convincing, and reliable, to prove the case of the prosecution. The other evidence produced by the prosecution was taken into consideration, and the accused were held guilty, convicted and sentenced. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellant, that the recovery, in this case, was not effected, in the presence of a Gazetted Officer. In the instant case, the recovery was not effected, from the person of the Crl. Appeal No.1224-SB of 1999 6 accused, and, as such, the provisions of Section 50 of the Act, were not applicable. The recovery, in this case, was effected from the bullock cart, being ridden by the accused. The provisions of Section 49 of the Act, were applicable. There is no requirement of law, that if the recovery is effected from a vehicle, or a baggage, the presence of a Gazetted Officer, must be insisted. The evidence of the prosecution witnesses, has been subjected to indepth scrutiny, and the same has been found to be cogent, convincing, reliable, and trustworthy. Non-presence of a Gazetted Officer, at the time of recovery, which was not the requirement of law, in this case, did not affect the merits of the case. 12. It was next submitted by the Counsel for the appellant, that the seal after use was handed over to Jagdev Singh, ASI, and not to the independent witness, who was joined, but given up, later on. He further submitted that the possibility of tampering with the case property, in these circumstances, could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here, that, under these circumstances, the Court is required to take into consideration the entire evidence, as also the facts and circumstances of the case, to come to the conclusion, as to whether, any prejudice was caused to the accused, on account of non-handing over the seal, used by the officials, for sealing the material, recovered from him, to an independent witness. If after over-all consideration of the facts and circumstances, and evidence, on record, the Court comes to the conclusion, that, on account of this reason, no prejudice was caused to the accused, then certainly, it could not be said that the case of the prosecution became doubtful. Even, otherwise, there is evidence, in abundance, in the shape of the statements of prosecution witnesses, that none tampered with the case property, and the samples, till the same (samples) were deposited in the office of the Chemical Examiner. When from the cogent, convincing, reliable, and trustworthy evidence, it is proved that none tampered with the sample parcels, Crl. Appeal No.1224-SB of 1999 7 and the case property throughout, then the Court cannot act on conjectures and surmises or mere far-fetched possibilities, that the sample parcels, might have been tampered with. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal by the Investigating Officer, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the case, and the prosecution case could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory for him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. Non-entrustment of seal to an independent witness, in view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, regarding the completion of link evidence, did not at all affect the merits of the case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant, that no sample impression of the seal, was taken into possession. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Ex.PD, is the recovery memo. The perusal of Ex.PD, clearly goes to show that the bags, containing poppy-husk, and the sample parcels, were duly sealed with the seal 'RS' belonging to Ram Saran, Inspector. It is further evident from Ex.PD, that the seal after use, and after retaining the sample impression thereof, was handed over to Jagdev Singh, ASI. Ram Saran, Inspector (PW-4), the Crl. Appeal No.1224-SB of 1999 8 Investigating Officer, also stated during the course of his cross-examination that he prepared the sample seal impression, and deposited the same, with the MHC. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant, that there was no identification mark, on the case property, when the same was produced in the Court. It is, no doubt, true that when the case property was produced in the Court, the chits containing the identification mark, were missing. In the instant case, the case property remained lying in the malkhana, where the case properties of other cases, were also lying. On account of shortage of space, in the malkhana, it is not at all possible to stack the case properties, of a number of cases, in a proper manner. If, due to irresponsible handling of the case property, and during the course of transit, the chits, containing the particulars of the case, were not found, in existence, on the case property, that did not mean, that the case property produced, in the Court, was not the same, as was recovered from the accused. The only obligation, upon the prosecution was to produce the case property, and to get it identified, from the prosecution witnesses. The prosecution produced the case property, and the same was identified by its witnesses, as the same, as was recovered from the accused. In State of Rajasthan Vs. Udai Lal, 2008(2) RCR (Criminal) 956, 119 bags, containing poppy-husk, were recovered. Out of 119 bags, only 5 bags, containing poppy- husk, were produced before the trial Court, which had broken seals. The trial Court, convicted the accused. The High Court acquitted them, on account of non-production of the complete case property, in the trial Court, as also on account some other lacunae. In appeal, the Apex Court, set aside the judgment of the High Court, and restored the judgment of the trial Court. In Ashok Kumar Vs. State of Haryana 2000(1) RCR (Criminal) 567, the bags of the case property, with faint seals were produced, and in the absence of any challenge to Crl. Appeal No.1224-SB of 1999 9 the report of the Laboratory, and, on account of non-summoning of the Chemical Examiner, for cross-examination, the Apex Court held that a doubt raised by the accused, as to whether the samples, and the case property, were the same, as were recovered from him (accused), was not sustainable. In view of the ratio of law, laid down, in the aforesaid authorities, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellant, that the appellant was not found in conscious possession of the poppy-husk, and, as such, no offence, punishable under Section 15 of the Act, was committed, by him. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. As many as 7 bags, containing poppy-husk, were lying in the bullock cart, which was being ridden by the accused. There was no other occupant, in the bullock cart, at the relevant time. It, therefore, could not be said that the accused, being the rider of the bullock cart, was not aware of the contents of the bags, lying therein. It was, for him, to explain, as to how the bags, containing poppy-husk, were lying in the bullock cart, and to which destination, the same were being transported, as this fact was within his special means of knowledge. He, however, failed to do so. The accused was, thus, found in conscious possesion, and in control over the bags, containing poppy- husk. Once the possession of the accused, in respect of the contraband is proved, then statutory presumption under Sections 54 and 35 of the Act, starts operating against him. Thereafter, it is for the accused, to rebut that statutory presumption. In the instant case, the accused, miserably failed to rebut the said presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that he was in conscious possession of the contraband. Section 54 of the Act ibid reads as under :- Crl. Appeal No.1224-SB of 1999 10 "Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:- a) any narcotic drug or psychotropic substance or controlled substance; b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controller substance; or d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily." 15-A. Section 35 which relates to the presumption of culpable mental state, is extracted as under :- "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 Crl. Appeal No.1224-SB of 1999 11 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." 15-B. From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it becomes abundantly clear, that once an accused, is found to be in possession of a contraband, he is presumed to have committed the offence, under the relevant provisions of the Act, until the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise. In Madan Lal and another Vs. State of H. P. 2003 SCC (Crl.) 1664 it was held as under:- The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. 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.” 16. The facts of Madan Lal’s case (supra) in brief, were that accused Crl. Appeal No.1224-SB of 1999 12 Manjit Singh was driving the Car and the remaining four accused, were sitting therein. One steel container (dolu) in a black coloured bag, was recovered from the said Car, which contained 820 gms. charas. All the accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas, despite the fact, that one of the accused admitted his conscious possession, of the contraband. The Apex Court held that the trial Court was right in coming to the conclusion, that the accused were found in conscious possession of charas, as they had failed to explain, as to how, they were travelling in a Car together, which was not a public vehicle. The Apex Court upheld the conviction and sentence awarded to the accused. In the instant case, the accused failed to explain, as to how, 7 bags, containing poppy-husk were found in the bullock cart, which was being ridden by him. The facts of Madan Lal's case (supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal's case (supra) is fully applicable to the facts of the present case. In the instant case, in his statement, under Section 313 Cr.P.C., the accused/appellant took up the plea, only of false implication. As stated above, the accused, thus, miserably failed to rebut the statutory presumption, referred to above. Thus, his conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 17. It was next submitted by the Counsel for the appellant, that in the statement, under Section 313 Cr.P.C., no question, regarding conscious possession, was put to the accused, as a result whereof, he was prejudiced. He also placed reliance, on Ramu Vs. State of Punjab 2008(3) RCR (Criminal ) 506, in support of his contention. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The accused, was put a question, in his statement, that he was the rider of