Crl.Appeal No.147-SB of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.147-SB of 1994 Date of Decision:05.12.2008 Karamjit Singh son of Sardara Singh son of Kishan Singh, resident of Khudi Kalan. .... Appellant Versus The State of Punjab .... Respondent 2. Crl. Appeal No. 322-SB of 1994 1. Gurmail Singh son of Prem Singh son of Avtar Singh 2. Jagdev Singh @ Jug son of Lal Singh s/o Karnail Singh 3. Joginder Singh @ Ginder s/o Niranjan Singh All residents of Khudi Kalan. ... Appellants. Versus The State of Punjab .... Respondent ---- CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Narinder Singh, Advocate for the appellant, in Crl. Appeal No. 147-SB of 1994. Mr. J.S. Toor, Advocate for the appellants, in Crl. Appeal No. 322-SB of 1994. Mr. S.S. Bhullar, DAG, Punjab for the respondent, in both criminal appeals. Crl.Appeal No.147-SB of 1994 2 --- SHAM SUNDER, J. This judgment shall dispose of Crl. Appeal No. 147-SB of 1994, filed by Karamjit Singh, and Criminal Appeal No. 322-SB of 1994, filed by Gurmail Singh son of Prem Singh, Jagdev Singh @ Jug and Joginder Singh @ Ginder, arising out of the judgment of conviction, and the order of sentence dated 02.03.1994, rendered by the Court of Additional Sessions Judge, Barnala, vide which it convicted all the accused, for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them to undergo rigorous imprisonment, for a period of ten years each, and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo further rigorous imprisonment for a period of one year each, for having been found in possession of 45 bags, each containing 40 KGS poppy husk, which falls within the ambit of commercial quantity, without any permit or licence, whereas Jagdev Singh, accused was also convicted for the offence punishable under Section 25 of the Act and sentenced to undergo rigorous imprisonment, for a period of ten years, and to pay a fine of Rs.1 lac, and in default of Crl.Appeal No.147-SB of 1994 3 payment of the same, to undergo further rigorous imprisonment for a period of one year, for knowingly permitting his truck, for transporting poppy husk. The substantive sentence in relation to Jagdev Singh, accused, awarded to him, for the offences punishable under Sections 15 and 25 of the Act, were, however, ordered to run concurrently. 2. The facts, in brief, are that on 26.08.1992 Inspector/SHO Ashutosh alongwith other police officials, was holding a picket at 'T' point of Khudi road, in the area of Barnala. Harnek Singh, independent witness, who came there per chance, was joined. In the meanwhile, truck No. PJU- 9549, owned by Jagdev Singh, accused, came from the side of un- metaled path. The truck was being driven by Jagdev Singh, accused, himself. It was stopped. Joginder Singh, accused was found sitting by the side of Jagdev Singh, accused. Gurmail Singh and Karamjit Singh, accused were found sitting on the back side of the truck. The truck was loaded with bags. Ashu Tosh, Inspector, told the accused that the search of the truck was to be conducted and, if they desired, the same could be conducted, in the presence of a Gazetted Officer or a Magistrate. However, the accused, reposed confidence in Ashu Tosh , Inspector. Thereafter, the truck was searched. 45 bags, each containing 40 Kgs. poppy husk, were found lying in the Crl.Appeal No.147-SB of 1994 4 body of the truck. Two samples of 250 grams each of poppy husk, were taken out, from each of the bags. and the remaining poppy husk was kept in the same bags. The bags, and the samples, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. The truck was also taken into possession, vide a separate recovery memo. The personal search of the accused was also conducted. Ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded. The site plan was prepared. All the accused, aforesaid, were arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against all the accused, and charge under Section 25 of the Act was also framed against Jagdev Singh, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Harnek Singh, (PW-1), independent witness, in whose presence, search of the truck was conducted and the aforesaid bags, containing poppy husk, were recovered, Gurdial Singh, HC, ( PW-2 ), a member of the Police party, Crl.Appeal No.147-SB of 1994 5 who conducted the search of the truck and recovered 45 bags, each containing 40 Kgs poppy husk, Ashu Tosh, Inspector, ( PW-3 ), the Investigating officer, who conducted the investigation in this case and prepared various memos, and Hardev Singh, HC, ( PW- 4 ), who tendered his affidavit Ex.PN, in evidence. Ex.PC, affidavit of Chamkaur Singh was also tendered into evidence, by the Additional Public Prosecutor for the State, vide statement dated 05.05.1993. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded their false implication. Jagdev Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he was owner of the truck, in question, at the relevant time. It was, however, stated by him that he was falsely implicated in the instant case, on account of enmity with Harnek Singh, independent witness. Joginder Singh, Karamjit Singh, and Gurmail Singh also took up the same plea, as was taken up by Jagdev Singh, accused, in his statement under Section 313 Cr.P.C. Crl.Appeal No.147-SB of 1994 6 5-A. In their defence, the accused examined Atma Singh, DW1. Thereafter, they closed their defence evidence. 6. After hearing the Additional 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, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellants, at the very outset, contended that though the alleged recovery was effected in this case on 26.08.1992, yet the samples were sent to the office of the Chemical Examiner on 07.09.1992 i.e. after the delay of 12 days, which remained unexplained, as a result whereof, the possibility of tampering with the same, until the same reached the Laboratory, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It is, no doubt, true that there is no explanation, with regard to delay, in sending the samples to Crl.Appeal No.147-SB of 1994 7 the office of the Chemical Examiner. However, mere delay, in itself, is not sufficient to come to the conclusion that the sample parcels were tampered with, until the same reached the office of the Laboratory. The other evidence, produced by the prosecution, has been held to be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved that none tampered with the samples until the same reached the office of the Chemical Examiner. Even, there is report of the Chemical Examiner Ex.PA, which clearly proves that the seals on the exhibits were intact on arrival, till the time of their analysis, and agreed with the specimen impression of the seals. The report, referred to above, is per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge to the report of the Chemical Examiner, in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received in the office of the Chemical Examiner, the submission of the Counsel for the appellants, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts Crl.Appeal No.147-SB of 1994 8 of the instant case. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellants, that though Harnek Singh, independent witness was with the Police party, yet the seal, after use was, not handed over to him, as a result whereof, the possibility of tampering with the sample parcels, until the same reached the office of the Chemical Examiner, could not be ruled out. 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, later on, 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 trial, 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 upon him, to produce such person, as a witness, during trial, as there was no statutory requirement, Crl.Appeal No.147-SB of 1994 9 whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. From the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, the completion of link evidence was proved. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants that the prosecution miserably failed to prove that the accused were in conscious possession of poppy husk, and, as such, they did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. When truck No. PJ U-9549 being driven by Jagdev Singh , came from the side of Handiya, on the un-metaled path, it was stopped. Joginder Singh, accused, was found sitting by the side of Jagdev Singh, accused, driver. Gurmail Singh and Karamjit Singh, accused, were found sitting on the back side of the truck. It was not a small quantity of poppy-husk, which was lying in the truck, and could escape the notice of the accused. It was a big haul of poppy husk, which was lying in the body of the truck. It could not possibly escape the notice of the accused. The accused were having special means of Crl.Appeal No.147-SB of 1994 10 knowledge, with regard to the bags containing poppy husk, lying in the body of the truck. It was for the accused to explain, as to how, the bags, containing poppy husk, were lying in the truck and to which destination, the same were being transported. The accused, however, failed to explain the circumstances, aforesaid. The accused were, thus, found in possession of, and in control over the bags, containing poppy-husk, lying in the truck. Once the possession of the accused, and their control over the contraband, was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut the statutory presumption, by leading cogent and convincing evidence. However, the appellants, 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 they were in conscious possession of the contraband. Sections 54 and 35 of the Act ibid reads as under :- "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:- Crl.Appeal No.147-SB of 1994 11 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." 11-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 Crl.Appeal No.147-SB of 1994 12 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." 11-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, they are 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 Crl.Appeal No.147-SB of 1994 13 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.” 11-C. The facts of Madan Lal’s case (supra) in brief, were that accused 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, 45 bags containing poppy husk, referred to above, were found in the truck, which was being driven by one of them. 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 Crl.Appeal No.147-SB of 1994 14 Lal's case (supra), is fully applicable to the facts of the present case. In the instant case, in their statements, under Section 313 Cr.P.C., the accused/appellants, took up the plea, only of false implication. They did not take up the plea, that they did not know the contents of the bags, lying therein. The other accused, except Jagdev Singh,accused, did not take up the plea that they merely took a lift in the truck, as they knew the driver thereof, and did not know, as to what was contained in the bags. They did not take up the plea that they were only labourers engaged by the owner of the truck for the purpose of loading and unloading of bags, containing poppy husk. As stated above, the accused, thus, miserably failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 12. The Counsel for the appellants, however, placed reliance on Dalbir Singh alias Beera v. The State of Punjab2008(1) RCR ( Criminal ), 1050, in support of their contention that the accused were not found in conscious possession of the poppy husk, allegedly lying in the body of the truck. In Dalbir Singh alias Beera 's case ( supra ), decided by a Single Bench of this Court, the conviction and Crl.Appeal No.147-SB of 1994 15 sentence of the accused, were set aside, on the ground that there was no conclusive proof that he was in possession of the contraband. Even otherwise, in view of the principle of law, laid down in Madan Lal's case ( supra ), decided by the Apex Court, the facts whereof, are identical and similar to the facts of the instant case, any contrary principle of law on the same point, laid down in Dalbir Singh's case ( supra ) decided by this Court, shall not hold the field, no help, therefore, can be drawn by the Counsel for the appellants therefrom. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellants that Hardev Singh, MHC, mis-appropriated six bags of poppy husk, out of the bags, allegedly recovered from the truck, aforesaid. They further submitted that a criminal case was registered against him, for such mis-appropriation. They further submitted that, under these circumstances, the evidence of the prosecution witnesses, cannot be relied upon. No doubt, it has come in the evidence that Hardev Singh, MHC, mis- appropriated six bags, containing poppy husk. A criminal case was registered against him, regarding mis-appropriation of six bags, containing poppy husk and he is facing prosecution. Crl.Appeal No.147-SB of 1994 16 Hardev Singh, was the MHC, at the relevant time, with whom, the case property and the sample parcels were deposited. His evidence is of only a formal nature. The mere fact that a criminal case was registered against him, on account of mis- appropriation of a few bags of poppy husk, in the instant case, which was his subsequent conduct, did not make his evidence, in any way tainted. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellants, that no question was put to the accused, in their statements, under Section 313 Cr.P.C., that they were in conscious possession of poppy-husk. It may be stated here, that once the possession of the accused, in respect of the bags, containing poppy-husk, was proved, then the statutory presumption, under Sections 54 and 35 of the Act, operated against them, that they were in conscious possession thereof. In statements, under Section 313 Cr.P.C., only incriminating circumstances, appearing against the accused, in the prosecution evidence, are required to be put. The provisions of law or the presumption operating, under the provisions of law, are not required to be put, to the accused, in their statements, under Section 313 Cr.P.C. In this view of the matter, the Crl.Appeal No.147-SB of 1994 17 submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected. 15. It was next submitted by the Counsel for the appellants, that only 39 bags, containing poppy-husk, were allegedly produced in the Court, whereas, according to the prosecution story, 45 bags, each containing 40 Kgs poppy husk, were allegedly recovered from the truck, being driven, by Jagdev Singh, accused. They further submitted that on account of non- production of complete case property, in the Court, it could be said that the accused were falsely implicated in the instant case. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It has been held above that six bags of poppy-husk were allegedly mis- appropriated by MHC Hardev Singh, with whom the entire case property was deposited. A separate criminal case, for such mis-appropriation has already been registered against Hardev Singh, MHC. It was, under these circumstances, that only 39 bags, containing poppy husk, referred to above, could be produced, in the Court, at the time of the evidence of the prosecution witnesses and the same stood connected with the instant case. It was not that the prosecution did not intentionally and deliberately produce the complete case property. In this view of the matter, the submission of the Crl.Appeal No.147-SB of 1994 18 Counsel for the appellants, being without merit, must fail and the same stands rejected. 16. It was next submitted by the Counsel for the appellants that Harnek Singh, PW1, an independent witness, was inimically disposed towards Joginder Singh,accused and is also a bad character. They further submitted that on account of this reason, the accused were falsely implicated, in this case, at his instance. No doubt, Harnek Singh, PW1, stated during the course of course of cross-examination, that he was challaned in four cases of hurt. He, however, denied that he and his son were under the thumb of the Police. The mere fact that this witness was having a civil litigation with Joginder Singh, one of the accused, did not mean that a false case was registered against all the accused, by the Police. There is nothing, on the record, that he was having any litigation, with the other accused. It was not at all possible for the Police, to plant such a big haul of poppy-husk, against the accused. Besides, Harnek Singh, PW1, there are other prosecution witnesses, who deposed that the recovery of poppy-husk, aforesaid, was effected from the truck, being driven by Jagdev Singh, accused, who was also the owner thereof. Those witnesses are Gurdial Singh, HC, PW-2, Ashu Tosh Inspector, PW-3, and Hardev Singh, HC, PW-4 respectively. It, therefore, Crl.Appeal No.147-SB of 1994