Criminal Appeal No. 1860-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1860-SB of 2002 Date of Decision: 18.02.2010 Joginder Pal @ Gola son of Sh. Jit Ram, r/o village Samrari, P.S. Phillaur, District Jalandhar. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: None for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence, dated 08.10.02, rendered by the Court of Special Judge, Jalandhar, vide which, it convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be 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 thereof, to further undergo rigorous imprisonment, for a period of three months, for having been found in possession of 240 kgs of poppy husk (8 bags each containing 30 kgs poppy husk), without any permit or licence, which falls within the Criminal Appeal No. 1860-SB of 2002 2 ambit of commercial quantity. 2. The facts, in brief, are that, on 26.07.01, Sarabjit Rai, Sub Inspector, alongwith some other Police officials, was present at Phillaur, at the bus stand of Nawanshahr road, where, a secret information was received, that the accused, was indulging in the sale of poppy husk, on the road, leading from Garha to Panj Peer. The Police party, was further informed that, on the left side, in the forest, the accused, was standing on the bags and waiting for the vehicle, and, if a raid was conducted, he could be apprehended, at the spot. Ashok Bath, Deputy Superintendent of Police, Halqa Phillaur, reached there, on receipt of a wireless message. In the meantime, one Harbhajan Singh, also came there and was joined by the Police party. Thereafter, the Police party, proceeded towards the pre-disclosed place, where, the accused, was seen sitting, on eight bags. He was apprehended on suspicion. On search of the bags, in the presence of Ashok Bath, Deputy Superintendent of Police, 240 kgs of poppy husk was recovered. A sample of 250 gms poppy husk, was separated from each bags, and the remaining poppy husk, was kept therein. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the first information report, was registered. Rough site plan of the place of recovery was prepared. The statements of the witnesses were recorded. The accused, was arrested. After the completion of investigation, he Criminal Appeal No. 1860-SB of 2002 3 was challaned. 3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed against the accused, which was read over and explained to him, to which, he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Kulwant Singh, Head Constable (PW1), Ashok Bath, Deputy Superintendent of Police (PW2), a witness to the recovery, Dilbagh Singh, Assistant Sub Inspector (PW3), Sarabjit Rai, Sub Inspector (PW4), the Investigating Officer, and, Surjit Malik, Head Constable (PW5). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that, no recovery, was effected, from him. It was further stated by him, that he had been falsely involved, in the instant case. He, however, did not lead any evidence in defence. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. Criminal Appeal No. 1860-SB of 2002 4 8. Feeling aggrieved, the instant appeal, has been filed by the accused/appellant. 9. The appellant was, on bail. When the appeal was posted for hearing, Mr. S.S. Narula, Advocate, who filed the appeal, came present and submitted that the appellant took away the brief from him. Accordingly, notice was issued to the appellant. As per the report of the Registry, he was duly served, but was not present. The question, thus, arises, is, as to whether, in these circumstances, the Appellate Court, can decide the appeal, on merits, or not. In Dharampal Vs. State of U.P. 2008 (1) Law Herald (SC) 225, it was held, by the Apex Court, that when the appellant or his Counsel does not appear, despite due notice, it could be said that there was due compliance of the provisions of Sections 385 and 386 of the Code of Criminal Procedure. It was further held that, in such a situation, the Appellate Court can decide the appeal, on merits, after going through the record, the evidence, and the judgement of the trial Court. In Bani Singh and others Vs. State of U.P., AIR 1996 (SC), 2439, a three judge Bench of the Apex Court also observed as under:- “It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place, when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385 and 386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence of indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after Criminal Appeal No. 1860-SB of 2002 5 perusing the record and the judgement of the trial Court. The plain language of Sections 385 and 386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the code envisages disposal of the appeal on merits after perusal and scrutiny of the record.” Keeping in view the ratio of law, laid down, by the Apex Court, in the aforesaid cases, I am proceeding to dispose of the appeal, on merits. 10. I have heard the Counsel for the respondent, and have gone through the evidence, record, and the judgement of the trial Court, carefully. 11. The first ground, taken up, in the memorandum of appeal, to assail the judgement of the trial Court, is, to the effect, that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. It may be stated here, that the recovery, in this case, was not effected, from the person of the accused. The accused, was found, in possession of eight bags, each containing 30 kgs poppy husk. It means that the recovery of contraband, was effected, from the bags. The mandatory provisions of Section 50 of the Act, therefore, were not applicable to the instant case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear, that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Criminal Appeal No. 1860-SB of 2002 6 Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. This ground, therefore, does not hold good, and is rejected. 12. The next ground, in the memorandum of appeal, which was taken up, by the appellant, was to the effect, that though the secret information, was received, by Sarabjit Rai, Sub Inspector, PW4, yet, the same, was neither reduced into writing, nor the question of sending the same, to the Officer superior ever arose, and, as such, the trial, conviction, and sentence stood vitiated. It may be stated here, that the recovery of contraband, in the instant case, was not effected, either from the house of the accused, or from an enclosed place, belonging to the accused, or from a place of concealment, having four walls. The recovery, was effected, from the forest area, when the accused, was found in possession of eight bags, containing poppy husk. Under these circumstances, the provisions of Section 42 of the Act, were not applicable, to the instant case, but, on the other hand, the provisions of Section 43 of the Act, were applicable. The provisions of Sections 42 and 43 of the Act, read as under :- “42. Power of entry, search, seizure and arrest without warrant or authorization – (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or Criminal Appeal No. 1860-SB of 2002 7 constable) of the revenue, drugs control, excise, olice or any other department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any which any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of offence under Chapter IV relating to such drug or substance : and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance Criminal Appeal No. 1860-SB of 2002 8 or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an offence takes down any information in writing under sub- Section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.” “43. Power of seizure and arrest in public place. -- Any officer of any of the department mentioned in Section 42 may -- (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company. 12-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for search, seizure, arrest and detention in any public place, or in transit, in respect Criminal Appeal No. 1860-SB of 2002 9 of any narcotic drug or psychotropic substance, in respect of which, he has reason to believe that an offence punishable under Chapter IV has been committed, whereas, Section 42 of the Act empowers the Officer for search, seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then the provisions of Section 43 of the Act are applicable. The word 'public place' has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 13. A Division Bench of this Court in Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.)278, has held as under :- “Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.” 13-A. It is well settled principle of law, that the provisions of a Statute, are to be construed, in harmonious manner, so that none of the same is rendered nugatory. By harmonious construing the provisions Criminal Appeal No. 1860-SB of 2002 10 of Sections 42 and 43 of the Act, it can be safely concluded, that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act, would not be applicable. 14. It was held in State of Haryana Vs. Jarnail Singh and others 2004(2) RCR (Crl.) 960 (SC), as under :- “7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as Criminal Appeal No. 1860-SB of 2002 11 contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.” In view of the principle of law, laid down, in the aforesaid cases, the trial Court was right, in holding that since the provisions of Section 42 of the Act were not applicable to the facts of the instant case, the question of compliance of the same, did not at all arise. This ground, also does not hold good and stands rejected. 15. The third ground, which was taken up, in the memorandum of appeal, to assail the judgement of the trial Court, was to the effect, that Harbhajan Singh, independent witness, was not examined. It is, no doubt, true that, Harbhajan Singh, independent witness, was joined, but, he was not examined, by the Additional Public Prosecutor, for the State. It is for the Additional Public Prosecutor, for the State, to decide dispassionately, as to how many witnesses, he wanted to examine, to prove his case, but, he is not required to examine each and every witness, to prove a particular fact. Since the evidence of the other prosecution witnesses, was found, to be sufficient, by the Additional Public Prosecutor, for the State, to prove the case of the prosecution, he did not think it necessary to examine Harbhajan Singh, independent witness. Mere non-examination of an independent witness, in itself, is not sufficient, to throw away the case of the prosecution over-board. In the face of the evidence of the official witnesses, without corroboration through any independent source, the Court, is required to scrutinize the same, carefully and cautiously. If, after careful and cautious scrutiny, Criminal Appeal No. 1860-SB of 2002 12 the evidence of the official witnesses, is found to be cogent, convincing and reliable, then mere non-examination of an independent witness, does not cast any doubt, on the prosecution case. In the instant case, the evidence of the official witnesses, on reappreciation and re-evaluation, has been found to be cogent, convincing, reliable and credible. In these circumstances, non-examination of an independent witness, did not at all cast any doubt, on the prosecution story. 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 were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:- “It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” 16. 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 the prosecution. It was further held, in the said authority, that the Criminal Appeal No. 1860-SB of 2002 13 civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' 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 aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate the accused, no doubt, is cast on the prosecution story. The aforesaid ground, taken up, in the memorandum of appeal, being devoid of merit, must fail, and the same stands rejected. 17. The next ground, taken up, in the memorandum of appeal, was to the effect that, no evidence, was produced, by the prosecution, as to who was the owner of the place, wherefrom, the alleged recovery, was effected, and, as such, the contraband, could not be connected with the accused. It may be stated here that, as per the prosecution case, the accused, was found sitting, on the bags, containing poppy husk, lying in the forest area. It means that the bags, containing poppy husk, were lying, in the grove of trees in the forest area. Such a place, could be said to be a concealed one, where, nothing could visible, in the ordinary course from some distance. So, if in the forest area, where, there are grove of trees, a person, is found sitting, on the bags, containing poppy Criminal Appeal No. 1860-SB of 2002 14 husk, he could very well be said to be in possession of the same. The forest area belongs to the government, and not to a private person. Under these circumstances, it was not necessary for the Investigating Agency, to make an inquiry, with regard to the ownership thereof. The fact of which the judicial notice, can be taken, need not be proved. It is the conscious possession of a contraband, which constitutes an offence, punishable under Section 15 of the Act. Once the possession of the accused and his control over the 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. It was for him, to rebut the statutory presumption, by leading cogent and convincing evidence. The accused, however, failed to lead any evidence, to rebut the statutory presumption. Section 54 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:- 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 Criminal Appeal No. 1860-SB of 2002 15 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." 17-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 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." 17-B. From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it