Criminal Appeal No. 1459-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 1459-SB of 2005 Date of decision: 3rd March, 2008 Krishan son of Manphool ... Appellant Versus State of Haryana ... Respondent ... Present: Mr.Rahul Vats, Advocate for the appellant. Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal is directed against the judgment/order of sentence dated 18.8.2005 rendered by the Court of learned Additional Sessions Judge, Hissar, whereby he convicted and sentenced the accused-appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for two and half years under Section 15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ), Succinctly put, the facts of the prosecution case are that on 6.12.2003, SI/SHO Sohan Singh, Police station, Adampur, among other Criminal Appeal No. 1459-SB of 2005 -2- police officials, happened to be present near Block Development and Panchayat Office Block, Kharempur road, in the area of Mandi Adampur in government vehicle bearing registration No. HR-20D-0295 which was driven by EHC Mahender Singh in connection with patrolling and crime detection. Meanwhile, he received a secret information to the effect that Krishan son of Manphool, caste Bishnoi, resident of Mandi Adampur (accused) is indulging in the sale of poppy husk in his residential house and if a raid is conducted, a huge quantity of poppy husk can be recovered. On receipt of this information, a raiding party was formed. The residential house of the accused was raided. He was found sitting near the wall and pushing one jute bag in a ditch and other 4 jute bags lay near him. Another bag was already lying in the ditch. On suspicion, he was apprehended. Suspecting the contents of all the six bags to be some contraband, the above mentioned Sub Inspector served a notice under Section 50 of the Act informing the accused that the search of the bag is to be made. He should tell whether he wanted the same to be searched in the presence of a Gazetted Officer or a Magistrate. Vide his separate reply, the accused offered to be searched in the presence of a Gazetted Officer. The aforementioned Sub Inspector called Pat Ram DSP, City Hissar. On his arrival, he disclosed his identity to the accused. On his directions, the aforesaid Sub Inspector conducted search of all the six bags. On search, each bag was found containing poppy straw. Two samples of 100 grams each were drawn from each bag. The residue in each bag, when weighed, came to 40 Kgs. 300 grams. Thereafter, the samples and the bags were converted into parcels, which were sealed with the seal SS. Pat Ram DSP also affixed his own seal PR on the samples as well as on the bags, which Criminal Appeal No. 1459-SB of 2005 -3- along with sample seals were seized vide recovery memo. The Investigator handed over his seal to ASI Roshan Lal after its use though DSP Pat Ram kept his seal with himself. The above mentioned Sub Inspector sent a Ruqa to the Police Station, on its basis, formal FIR was registered. He recorded the statements of witnesses, prepared rough site plan showing the place of recovery and on return to the Police Station Adampur, deposited the case property with seals intact with MHC along with sample seal. On receipt of F.S.L report, Exh.PL and after completion of investigation, the charge- sheet was laid in the Court for trial of the accused. The accused was charged under Section 15 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined PW-1 Constable Devinder Kumar, PW-2 HC Dogar Singh, PW-3 DSP Pat Ram, PW-4 ASI Roshan Lal, PW-5 SI Sohan Singh and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He came up with the plea that he has been falsely implicated in this case due to party faction; that he was kept under illegal detention in the Police Station on suspicion and due to party faction, those bags of Chura poast were planted upon him by inducing false official witnesses as the bags of Chura poast were found abandoned two days prior to 6.12.2003 from a deserted place. He did not lead any evidence in defence. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned Criminal Appeal No. 1459-SB of 2005 -4- trial Court convicted and sentence accused, as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. I have heard Ms. Rahul Vats, Advocate appearing on behalf of the appellant and Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, for the State of Haryana, besides going through the record with due care and circumspection. Mr. Rahul Vats, Advocate appearing on behalf of the appellant, canvassed at the bar with great eloquence that allegedly the recovery was effected from the house of the accused, but the same being in joint possession of other members of the family, the exclusive possession of the appellant qua the alleged bags of poppy husk is not established. To overcome this submission, Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, maintained that as is borne out from the prosecution evidence, none else except the appellant was present in the house at the time of recovery. Thus, he was in exclusive possession of the bags. This contention merits acceptance. It is in the evidence of SI Sohan Singh, PW-5 (Investigator) that the accused was sitting in his house and he was pushing one bag in the ditch when he was apprehended and that four other bags were also lying there and one bag was already pushed in the ditch. In identical terms is the testimony of ASI Roshan Lal, PW-4. It is in the cross examination of ASI Roshan Lal, PW-4 that “ none from the family was available in the house in question viz. ladies, male members or children.” This evidence leave no scope for doubt that the appellant had custody and control of bags. He has not adduced even an iota of evidence in proof of joint possession of the house. He was in the process of pushing a bag in the ditch when he was apprehended. Section 35 of the Act reads in Criminal Appeal No. 1459-SB of 2005 -5- the following terms :- “ 35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this Act which requires a culpable mental state of the deceased, 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. ” As ruled in re: Jinabhai Kalabhai Rajput v. State of Gujarat, 1998 Drugs Cases 388 (DB), only in the case where the prosecution had led convincing evidence regarding search and recovery from the exclusive possession of the accused, the presumption under Section 35 and 54 of the Act can be drawn. In the instant case, as noticed supra, the appellant was caught red handed while pushing the bag containing poppy husk into a ditch. Thus, it is attributable to him that he had the knowledge that the contents of the bag were poppy husk. Therefore, there is nothing wrong in believing this fact to exist beyond a reasonable doubt. The prosecution has adduced convincing evidence regarding search and recovery from the Criminal Appeal No. 1459-SB of 2005 -6- exclusive possession of the appellant. Sequelly, the presumption has to be drawn under Section 35 and 54 of the Act. In my estimation, no other proof to establish his exclusive possession qua poppy husk is required. Presumption under Section 35 of the Act would come into play only after the link between illegal or contraband drug or article and the accused is established without doubt. However, it will always be open to the accused to prove that the statutory presumption of culpable mental state of his mind was not in existence in a particular given case. The possession must mean possession with requisite mental element i.e. it must be conscious possession and not mere custody without awareness of nature of such possession. The burden of proof cast upon the accused under Section 35 of the Act can be discharged when the accused is called upon to enter into his defence. He can rely on the circumstances appearing in the prosecution evidence or adduce evidence himself to give reasonable assurance to the Court that he could not have had the knowledge or the required intention. Reverting back to the facts of the case in hand, the appellant has not adduced any evidence in defence that he could not have had the knowledge or the required intention. The circumstances appearing in the prosecution evidence also do not indicate that he could not have had such knowledge or intention. He might be aware of the contents of the bag which was being thrusted by him into the ditch in his house. Axiomatically, the appellant was handling the poppy husk when he was nabbed. He has not produced evidence to the effect that any body else is also residing in the house from which the recovery has been effected. Had any body else been residing with him, he might have adduced evidence in this behalf by examining inmates of the house. The afore-extracted cross-examination of ASI Roshan Lal, Criminal Appeal No. 1459-SB of 2005 -7- PW-4 too affirms this fact. In re: Madan Lal and another v. State of Himachal Pradesh, 2003 (4) Recent Criminal Reports ( Criminal ) 100, the Hon'ble Supreme Court has observed as under :- “ The word 'possession' means the legal right to possession. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. Possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power of control.” “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 Criminal Appeal No. 1459-SB of 2005 -8- possession of illicit articles. ” Here in this case, the prosecution has established the possession of the appellant over the bags. The onus shifted on to the appellant to demonstrate that he was not in conscious possession. It was within his special knowledge as to how these bags came into his possession. Consequently, the contention raised by Mr. Rahul Vats is overruled. Mr. Vats further argued that it is in the evidence of PW-5 SI Sohan Singh, Investigator that “ I did not send and reduce into writing the secret information nor sent it to his immediate superior official” and, thus obviously, he flagrantly infracted the mandatory provisions of Section 42 (2) of the Act. Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, contended that the secret information might have leaked if the same had been reduced into writing and forwarded to the immediate superior officer. If the Investigator had indulged in reducing the secret information into writing and forwarding the same to his immediate superior officer, the appellant would have escaped. On these facts, no inference can be drawn that there has been any violation of Section 42 of the Act. I have considered these contentions. As observed in re: Abdul Rashid Ibrahim Mansuri v. State of Gujarat, Judgements Today 2000 (1) Supreme Court 471, “ the action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone.” In view of these observations, it is held that the trial has not been vitiated merely because of non-compliance of the provisions of Section 42 ibid. Mr.Vats further argued that the recovery has been allegedly Criminal Appeal No. 1459-SB of 2005 -9- effected in the course of search of the house and if it was so, it was incumbent upon the Investigator to have joined certain persons from the locality before search and by not doing so, he has violated the provisions of Section 100 (4) of the Criminal Procedure Code. This contention is untenable. It is in the cross-examination of PW-4 Roshan Lal ASI that the accused had refused to summon any public person, so he did not summon any respectable person from the village. It is in the cross-examination of PW-3 Pat Ram DSP that nearby the place of recovery there was no other residential house and that the house in question was situated at a distance of 1/2 Km. from the village Abadi. The accused has not produced any evidence in proof of the fact that his house is situated in a locality. That being so, it does not lie in the mouth of Mr. Vats to contend that the provisions of Section 100 (4) of the Code of Criminal Procedure have been given a go-by. Furthermore, as observed by the Division Bench of this Court in re: Karnail Singh v. State of Punjab, 1983 Criminal Law Journal 1218, “ breach of sub-section (4) of Section 100 of Criminal Procedure Code, which require the Officer effecting search to call 2 or more independent and respectable persons of the locality to witness the search, would not render the search defective. Though the contravention may affect the credibility or the evidence let in, it does not affect the admissibility of the evidence. Conviction based on such evidence is not liable to be disturbed merely because of the non-compliance of the provisions. These observations nullify the contention of Mr.Vats. No other material point has been agitated or urged by either counsel. On appraising and analysing the evidence tendered by PW-3 Criminal Appeal No. 1459-SB of 2005 -10- DSP Pat Ram, PW-4 ASI Roshan Lal and PW-5 SI Sohan Singh, it transpires that the recovery of poppy husk bags was effected from the appellant. These witnesses, when subjected to incisive cross-examination, their credibility could not be impeached in any manner. Their evidence is consistent and credible. In his statutory statement, the appellant has come up with the plea that due to party faction, the abandoned poppy husk bags have been foisted upon him. He has not led any evidence to substantiate this plea. It is not his case that the police was inimically disposed towards him and for that reason, he has been falsely implicated in this case. There being no animus for the police to rope in the appellant in this case, the prosecution evidence has to be relied upon. Needless to say, such a huge recovery could not be planted. Thus, there is no reason worth the name to discard the version proffered by the prosecution. In view of the preceding discussion, the judgment under appeal warrants no interference. Sequelly, this appeal fails and is dismissed. ( HARBANS LAL ) JUDGE 3rd March, 2008 RS Whether to be referred to the Reporter ? Yes/No