Crl. Appeal No.764-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.764-SB of 1997 Date of Decision : March 25, 2008 Avtar Singh S/o Balwinder Singh, ....Appellant R/o Gale Kalan, P.S. Jagrson, Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipan Ghai, Sr. Advocate, with Mr. Deepak Garg, Advocate, for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. Narcotic smugglers and Drug Lords, who blinded by the greed of money, money and money, indulge into the import, export, and sale of narcotics, not only annihilate the generation, but also affect the economy of the Country. Their activities, induce the citizens of the Country, particular the youth, to become slaves of narcotics, as a result whereof, deleterious effect on their health is caused. Even, such activities of the Drug Lords, affect the security and integrity of the Country, because they can go to any extent, while indulging into the trade of narcotics, to jeopardize the national interest for minting easy money. Even they forget, while indulging into such activities, that one day their own progeny may be afflicted with such malady. In these circumstances, the activities of the Drug Lords, are required to be curbed, so that the national health, security, and integrity of the Country, are not put in peril. The concerned Governments, are required to take effective steps, to ensure the proper investigation, by the Investigating Agencies, in such like cases, so that no loopholes, are left by them, as to create an escape route, for such accused. Crl. Appeal No.764-SB of 1997 2 2. This appeal is directed against the judgment of conviction, and the order of sentence dated 1.9.1997, rendered by the Court of Addl. Sessions Judge, Jalandhar, vide which it convicted the accused/appellant Avtar Singh , 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 six months. 2. The facts, in brief, are that on 19.9.1992, Harmail Singh, DSP, alongwith Jagtar Singh, HC, and other police officials, set out for checking the night patrolling, in the area of Police Station Phillaur, near 'T-point', Akalpur road, when Harbans Singh, SI, and other police officials, were found on duty. They were associated. Thereafter, the aforesaid DSP, held a picket at 'T-point', Akalpur road, at about 3.00 AM on 19.9.1992. Harjit Singh was sent to find out some public man, so as to join him, in the picket, but due to night, none was available. At about 4.00 AM, on 19.9.1992, one truck bearing No.DIL-2952, was seen coming from the side of Phillaur. The truck was made to stop by flashing the torch light, and was condoned off. The truck was being driven by Onkar Singh S/o Bawa Singh of village Sardulpur. Soudagar Singh S/o Jarnail Singh of village Lakran was also sitting, by his side. There were bags lying in the rear of the truck, on which Avtar Singh S/o Balwinder Singh, was found sitting. The DSP enquired, as to what they were carrying in the truck, as a result whereof, they told that the bags lying in the truck, contained poppy-husk. The search of the truck aforesaid, was conducted, in accordance with the provisions of law. 27 bags of poppy-husk were found lying, in the rear of the truck. Each bag was containing 42 Kgs. Poppy-husk. From each bag, 250 grams of poppy- husk, was separated as sample. The remaining poppy-husk was kept in the same gunny bags. The sample parcels and the gunny bags were sealed, with the Crl. Appeal No.764-SB of 1997 3 seal bearing impression 'HS'. Thereafter, the same were taken into possession, vide a separate memo, attested by Harbans Singh, SI, and Jagtar Singh, HC. Truck No.DIL-2952, alongwith the Registration Certificate thereof, was taken into possession, vide a separate recovery memo, attested by the aforesaid witnesses. Personal search of the accused, was conducted, and memos Ex.PC, PD and PE, were prepared, signed by the accused, and attested by the witnesses. Ruqa was sent to the Police Station, by the DSP, on the basis whereof, the formal FIR was registered. Rough site plan of the place of recovery was prepared by the DSP. The statements of the witnesses were recorded. The accused were arrested. On return to the Police Station, the case property was deposited with Amarjit Singh, MHC, with seals intact. After the completion of investigation, and, on receipt of the report of the Chemical Examiner, the accused were challaned. 3. On their 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 them, to which they pleaded not guilty and claimed judicial trial. 4. Before the prosecution evidence could be recorded, Onkar Singh and Saudagar Singh, accused, jumped the bail, and could not be arrested. They were, accordingly, declared Proclaimed Offenders. 5. The prosecution, in support of its case, examined Harmail Singh, DSP (PW-1), the Investigating Officer, Som Nath, ASI (PW-2), who recorded the statements of the formal witnesses, Nirmal Singh, Constable (PW-3), who tendered his affidavit Ex.PW3/A, to the effect that he took the sample parcels to the office of the Chemical Examiner, Amritsar, with seals intact and deposited the same alongwith sample impression of the seal, Jagtar Singh, ASI (PW-4), a witness to the recovery, and Amarjit Singh, MHC, who tendered his affidavit Ex.PH to the effect that the case property, the sample impression of the seal, Crl. Appeal No.764-SB of 1997 4 and the sample parcels, duly sealed were deposited with him by Harmail Singh, DSP, and none tampered with the same, till the same remained with him. Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of Avtar Singh, accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he had gone to village Nagar, from his own village Galib Kalan, to meet his sister Parwinder Kaur W/o Joginder Singh, who was married there, wherefrom, he was taken to the Police Station, by Harbans Singh, SI, to know about his whereabouts, and falsely implicated in the instant case. It was further stated that the truck loaded with poppy-husk, was already taken into possession and the same was foisted on him, later on. The accused, however, did not lead any evidence, in his defence. 6. After hearing the Addl. 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 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, contended that the prosecution miserably failed to prove that Avtar Singh, accused, was found in conscious possession of 27 bags, containing poppy-husk. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Avtar Singh, accused, was sitting on the bags, containing poppy-husk, which were lying in the rear of the truck aforesaid. Once the physical possession of Crl. Appeal No.764-SB of 1997 5 the accused, in respect of 27 bags, containing poppy-husk, was proved, statutory presumption under Sections 35 and 54 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was for him, to rebut the presumption, by leading cogent and convincing evidence that he was not in conscious possession of the contraband. However, the appellant failed to rebut that 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. 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.” 10. 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. The accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas. 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, Crl. Appeal No.764-SB of 1997 6 the accused failed to explain, as to how, 27 bags of poppy-husk were found in the truck, which was being driven by his co-accused. 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, that he was falsely implicated. No other defence was set up by him. Since, the accused/appellant failed to rebut the presumption, referred to above, 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. 11. The Counsel for the appellant, however, placed reliance on Baldev Singh Vs. State of Punjab 2005 (1) R.C.R. (Criminal) 823, to contend that the prosecution failed to prove the conscious possession of the accused, in respect of the contraband aforesaid. No doubt, in this case, decided by a Single Bench, of this Court, it was held that mere physical presence of the accused in proximity or even in close proximity of the object, did not prove his conscious possession in respect thereof. In view of the law, laid down in Madan Lal's case (supra), a case decided by the Apex Court, the principle of law, laid down in Baldev Singh's case (supra), decided by a Single Bench, to the contrary, on the same point, shall not hold the field. In this view of the matter, no help can be drawn, by the Counsel for the appellant from Baldev Singh's case (supra). The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that the alleged recovery, in this case, was effected on 19.9.1992, whereas, the samples were sent on 15.10.1992 to the office of the Chemical Examiner. He further contended that delay in sending the samples to the Office of the Chemical Crl. Appeal No.764-SB of 1997 7 Examiner, was not explained by the prosecution witnesses, and, as such, it must prove fatal to the case of the prosecution. It may be stated here, that the Court is required to take into consideration the other evidence produced by the prosecution to prove the completion of link evidence. If the Court comes to the conclusion that the other evidence, produced by the prosecution, to prove the completion of link evidence was cogent, convincing, reliable, and trustworthy, then the mere fact of sending the samples to the Office of the Chemical Examiner, after delay, does not in any way affect the merits of the case. The prosecution is required to prove, as to whether, the sample parcels remained untampered with, until the same reached the office of the Chemical Examiner. If the prosecution successfully proves the same, by leading cogent and convincing evidence, then mere delay in sending the sample pales into insignificance. In the instant case, the perusal of the evidence of Harmail Singh, DSP, (PW-1), the Investigating Officer, clearly goes to prove that on reaching the police station, on the same day, he deposited the case property and the sample parcels with seals intact, alongwith with sample seal with the MHC. He further stated that he did not tamper with the same, nor did he allow anybody to tamper with the same, till the same remained in his custody. There is also affidavit Ex.PW3/A of Nirmal Singh, Constable (PW-3), to the effect that on 15.10.1992, he was handed over 27 parcels, containing poppy-husk, duly sealed with the seal bearing impression 'HS' and the docket bearing the impression of the sample seal, for deposit in the office of the Chemical Examiner by Amarjit Singh, MHC, and he deposited the same, on that day, and thereafter, handed over the receipt regarding deposit to the said MHC. He further stated that none tampered with the same, till it remained in his custody. There is also affidavit Ex.PH of Amarjit Singh, MHC, to the effect that he handed over the sample parcels, duly sealed with the seal, bearing impression 'HS', and the docket bearing the impression of the sample seal to Nirmal Singh, Constable on Crl. Appeal No.764-SB of 1997 8 15.10.1992, who deposited the same, and thereafter, handed over to him the receipt. Both of them stated that none tampered with the sample parcels, till the same were deposited in the Office of the Chemical Examiner. Above all, there is report Ex.PJ of the Chemical Examiner, to the effect that the sample parcels were received with seals intact and in good condition. In these circumstances, from the cogent, convincing, and creditworthy evidence, referred to above, it was proved beyond doubt that none tampered with the case property and the sample parcels, till the same (samples) were deposited in the office of the Chemical Examiner. In these circumstances, mere delay in sending the sample to the office of the Chemical Examiner, paled into insignificance. Since, the Court after analysis of the evidence, produced by the prosecution, has come to the conclusion that the link evidence, was complete, the mere fact that the delay was caused in sending the samples to the office of the Chemical Examiner did not indicate even the remotest possibility of tampering with the same. 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. The Counsel for the appellant, however, placed reliance on Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, in support of his contention. The perusal of the facts of the aforesaid case, decided by a Single Bench of this Court, reveals that there was a delay of 8 days in sending the sample to the office of the Chemical Examiner. The evidence produced by the prosecution to prove the completion of link evidence, was found to be deficient and untrsutworthy. Not only this, there were other lacunae and infirmities, in the prosecution case. Taking into consideration the cumulative effect of all the lacunae and infirmities, in the prosecution case, alongwith delay in sending the sample, the Court came to the conclusion, that the case of the prosecution was doubtful, and, ultimately, the accused was acquitted. In the instant case, there are no other noticeable infirmities, and lacunae, but on the other hand, the Crl. Appeal No.764-SB of 1997 9 prosecution was successful in proving the same, by leading cogent, convincing, trustworthy, and reliable evidence. In these circumstances, no help can be drawn by the Counsel for the appellant from Ramji Singh's case (supra). The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next contended by the Counsel for the appellant, that the owner of the truck was not examined by the prosecution, to prove the source of poppy-husk allegedly recovered. It was not necessary, on the part of the prosecution to examine the owner of the truck. Once the accused alongwith his two companions was found to be in conscious possession of poppy-husk, the offence under Section 15 of the Act, stood constituted. Non-examination of the owner of the truck, therefore, did not at all affect the merits of the case. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. 16. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 17. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 1.9.1997, are upheld. If the accused/appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment, with due promptitude. March 25, 2008 (SHAM SUNDER) Vimal JUDGE