Crl. Appeal No.272-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.272-SB of 2001 Date of Decision : 1.12.2008 1. Hira Singh S/o Hari Singh, ...Appellants R/o Village alwandi Chaudharian, District Kapurthala. 2. Jodh Singh S/o Kartar Singh, R/o Village Kang, Tehsil Tarn Taran, District Amritsar. Versus The State of Punjab ....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. Ashok Sharma, Advocate, for the appellants. Mr. T.S.Salana, DAG, Punjab, for the respondent-State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 14.12.2000, rendered by the Special Judge, Ferozepur, vide which he convicted the accused (now appellants), 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 Crl. Appeal No.272-SB of 2001 2 of the same, to undergo rigorous imprisonment for another period of 1 year each, for having been found in possession of 51 bags, each containing 35 kgs. poppy-husk, (falling within the ambit of commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 17.4.1998, Gurpreet Singh, ASI, Incharge Police Post Bahabwala, alongwith other police officials, in a private jeep, was holding a picket, on defence road chowk of village Kular Wala. At about 10.30 AM, a truck, bearing No.PIA-9195, came from the side of Rajasthan, which was signalled to stop. The driver stopped the truck, at some distance, from the picket party. The truck was driven by Jodh Singh, accused, and Hira Singh, accused, was sitting in the same. Gurpreet Singh, ASI, suspected that some intoxicant was being carried in the said truck. He gave an offer to the accused, as to whether, they wanted the search of the truck, to be conducted, in the presence of a Gazetted Officer, or a Magistrate. The accused replied that, they wanted the search of the truck, to be conducted, in the presence of a Gazetted Officer. The consent memos were recorded. A wireless message was sent to Gurmeet Singh Randhawa, DSP, as a result whereof, he reached the spot, at about 11.30 AM. On reaching the spot, Gurmeet Singh Randhawa, DSP, disclosed his identity, to the accused, and again gave an option, as to whether, they wanted the search of the truck, to be conducted, by a Gazetted Officer or a Magistrate. The accused reposed faith in the DSP. The consent memos were prepared. Thereafter, as per the instructions of the DSP, the search of the truck, was conducted, by Gurpreet Singh, ASI, with the help of other police officials, as a result whereof, 51 gunny bags, each containing 35 kgs. poppy-husk, were Crl. Appeal No.272-SB of 2001 3 recovered. Two samples of 250 grams each, from each of the bags, were taken out, and the remaining poppy-husk, was put into the same gunny bags. 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, alongwith the truck. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses, were recorded. The accused were arrested. After the completion of investigation, 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. The prosecution, in support of its case, examined Ranjit Singh, HC (PW-1), Manjit Singh, Constable (PW-2), Basant Singh, Constable (PW-3), Gurpreet Singh, ASI (PW-4), the Investigating Officer, Gurmeet Singh Randhawa, DSP (PW-5), Nagore Singh, SHO (PW-6), and Darshan Singh, HC (PW-7). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, examined Surjit Singh, AMHC (DW-1), in their defence. Thereafter, they closed the defence evidence. 6. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, Crl. Appeal No.272-SB of 2001 4 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 appellants. 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 appellants, at the very outset, submitted that there was a delay of 17 days, in sending the samples to the office of the Chemical Examiner, which remained unexplained, as a result whereof, it could not be said that the samples were not tampered with, until the same reached the office of the Chemical Examiner. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to indepth scrutiny, and it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the Laboratory. Above all, there is report of the Chemical Examiner, Ex.16, which clearly proves that the seals on the samples, were found intact, and agreed with the specimen seals sent. The report of the Chemical Examiner, is per-se Crl. Appeal No.272-SB of 2001 5 admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay, in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 17 days, in sending the samples to the office of the Chemical Examiner, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellants, that the accused were not found in conscious possession of the poppy-husk, and, as such, they did not commit any offence, punishable under Section 15 of Crl. Appeal No.272-SB of 2001 6 the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Jodh Singh, accused, was driving the truck, and Hira Singh, accused, was sitting by his side. 51 bags, each containing 35 kgs. poppy-husk, were lying in the body of the truck, though under the maize bags. It could not be imagined that such a big haul of poppy-husk, was kept in the body of the truck, without the knowledge of the driver, and his co-occupant. Had it been a small quantity of poppy-husk, it could be said, that the same escaped their notice. It was, within the special means of knowledge of the accused, as to how the bags, containing poppy-husk, were lying, in the truck, and to which destination, the same were being taken. It was not a small quantity of poppy-husk, for the consumption of the occupants of the truck, but for sale, on commercial basis, for minting money. The accused, however, failed to explain the circumstances, aforesaid. Under these circumstances, it could be said that the accused, were found in possession of, and in control over the bags, containing the poppy-husk, lying in the truck. Once their posession was proved, 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 that statutory presumption. It was not the case of the accused, that they did not know the contents of the bags, lying in the truck. It was not the case of the driver of the truck, that he was carrying the same, as per the command of the owner of the truck. It was not the plea of the other accused, namely Hira Singh, that he only took a lift, in the truck, as he had no other means of transport, to go to his village. It was not the case of the co-accused, that he was merely a labourer, and engaged by the owner of the truck, or Crl. Appeal No.272-SB of 2001 7 the driver thereof, for the purpose of loading the bags therein, and unloading the same, at a particular destination. The plea of the accused was only that they were falsely implicated. The accused, therefore, failed to rebut the statutory presumption, operating against them satisfactorily. In these circumstances, the trial Court was right, in holding that they were in conscious possession of the contraband. 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 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 Crl. Appeal No.272-SB of 2001 8 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 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, 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 Crl. Appeal No.272-SB of 2001 9 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.” 12. 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. 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 Crl. Appeal No.272-SB of 2001 10 fully applicable to the facts of the present case. As stated above, the accused 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. 13. The Counsel for the appellants, however, placed reliance on Dalbir Singh @ Beera Vs. The State of Punjab 2008(1) RCR (Criminal) 1050, Kashmir Singh Vs. State of Punjab 2006(2) RCR (Criminal) 477, Raj Kumar Vs. State of Punjab 2005(1) RCR(Criminal) 70, and Hakam Singh Vs. State of Punjab 2008(4) RCR (Criminal) 489, to contend that the accused were not found in conscious possession of the poppy-husk, referred to above. In Dalbir Singh @ Beera's case (supra), decided by a Single Bench, the prosecution failed to prove the conscious possession of the bags, containing poppy-husk, being carried in the truck. In these circumstances, the appellant was acquitted. In Kashmir Singh's case (supra), it was held that once, there was recovery of contraband from the possession of the accused, presumption, under Sections 54 and 35 of the Act, that he was in conscious possession of the same, would arise, but the same could be applied only, after affording an opportunity to the accused, to rebut the same. It was further held, in this authority, that once the possession of the accused, in respect of the contraband is established, then it was for him, to prove, as to how, they were not in conscious possession thereof. In Raj Kumar's case (supra), decided by a Division Bench of this Court, the prosecution failed to prove, as to which of the accused, travelling in the jeep was in conscious possession of the contraband. In Hakam Singh's case (supra), it was not proved that the Crl. Appeal No.272-SB of 2001 11 accused were in conscious possession of the contraband. Even, there were so many other infirmities, in the prosecution case, and, ultimately, the appellant was acquitted. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. In the instant case, it was proved that the accused were in possession of the bags, containing contraband. Once, their possession was proved, it was for them, to establish that they were not in conscious possession thereof. It has been held above, that the accused failed to rebut the statutory presumption, operating against them, under Sections 54 and 35 of the Act, that they were in conscious possession of the contraband, lying in the truck. Charge in this case, was framed against the accused, whereby they were conveyed that they were found in the conscious possession of 51 bags, containing poppy-husk. Thereafter, the prosecution evidence was led, and the accused were afforded full opportunity, to cross-examine the witnesses. They fully cross-examined the witnesses. They were aware of the fact, that the case against them, was that they were in conscious possession of 51 bags, containing poppy-husk. The statements of the accused, under Section 313 Cr.P.C., were also recorded, wherein they were put specific questions, that 51 bags, each containing 35 kgs. Poppy-husk, were lying in the body of the truck. They were, thus, made aware that they were in possession of 51 bags, containing poppy-husk. Even, the accused were afforded an opportunity to lead defence evidence. It is, thus, proved that the accused were afforded full opportunity to rebut the statutory presumption, operating against them, under Sections 54 and 35 of the Act. Even otherwise, in view of the principle of law, laid down, in Madan Lal's case (supra), decided by the Apex Court, the principle of Crl. Appeal No.272-SB of 2001 12 law, laid down, to the contrary, on the same point, by this Court, in the aforesaid cases, shall not hold the field. Under these circumstances, no help can be drawn, by the Counsel for the appellants, from the aforesaid authorities. 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 the owner of the truck, was not joined, in the investigation, though the registration certificate, Ex.MO/1, was recovered from the truck. He further submitted that, under these circumstances, the case of the prosecution became doubtful. It is, no doubt, true that the Investigating Officer, did not try to ascertain, as to what was the role of the owner of the truck, in the alleged commission of crime. It could be said that the Investigating Officer, committed illegality or irregularity, during the course of investigation. If the illegality or irregularity, committed by the Investigating Officer, during the investigation, is taken into consideration, for the purpose of acquitting the accused, then every dishonest or negligent Investigating Officer, shall intentionally and deliberately leave some lacuna in the prosecution case, so as to create an escape route for the accused. Even otherwise, had the owner of the truck, been joined in the investigation, after ascertaining, whether the truck was permitted by him knowingly, for the purpose of transporting the contraband, he could be challaned, under Section 25 of the Act. The liability of the accused, for the commission of offence, punishable under Section 15 of the Act, by no stretch of imagination, could be diluted. Under these circumstances, non-joining OF the owner of the truck, in the Crl. Appeal No.272-SB of 2001 13 investigation of the case, did not affect the merits thereof. The 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 in statements, under Section 313 Cr.P.C., the accused were not put any question, that they were found in conscious possession of the poppy- husk. He further submitted that, as such, the accused could not be held liable for the commission of offence, punishable under Section 15 of the Act. He also placed reliance on Dalbir Singh @ Beera's, Kashmir Singh's and Raj Kumar's cases (supra), in support of his contention. It may be stated here, that in statements under Section 313 Cr.P.C., the accused were only required to be put the incriminating circumstances, appearing against them, in the prosecution evidence. The accused were not required to be put either the provisions of law, or the presumption operating under the provisions of law, in their statements, under Section 313 Cr.P.C. The accused were put specific question, that in the truck of which, they were occupants, 51 bags, each containing 35 kgs. Poppy- husk, were lying. They were, thus, made aware of the factum, that they were in possession of the bags, containing poppy-husk. Once their possession, as stated above, was proved, in respect of the contraband, then statutory presumption, under Sections 54 and 35 of the Act, operated against them, that they were in conscious possession thereof. Under these circumstances, no help can be drawn, by the Counsel for the appellants, from the aforesaid authorities. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. Crl. Appeal No.272-SB of 2001 14 16. It was next submitted by the Counsel for the appellants, that the story of the prosecution, was most improbable. In support of his contention, he submitted that Gurpreet Singh, ASI (PW-4), during the course of his cross-examination, stated that the police party started from the Police Post, at about 10.30 AM, and came back at 9.00 PM, whereas, in his examination-in-chief, it was stated by him, that the truck, bearing No.PIA-9195, in which the poppy-husk, was lying, came at about 10.30 AM. He further submitted that, if the police party started from the Police Post, at about 10.30 AM, then how it could reach the place, where the truck was apprehended, at 10.30 AM. It may be stated here, that it was not the exact time, which was deposed to by Gurpreet Singh, ASI, regarding the holding of a picket, at the particular place. He only gave the approximate time, when the police party started from the Police Post, and when it held a picket, at the relevant place. Had the exact time been given by him, the matter would have been different. Under these circumstances, it could not be said, that the case of the prosecution was improbable. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 17. It was next submitted by the Counsel for the appellants, that the case property, when produced in the Court, did not stand connected with the instant case. He further submitted that Gurpreet Singh, ASI (PW-4), during the course of cross-examination, stated that majority of the seals on the case property were in broken condition, and the other seals were not legible, and intact. He further submitted that Gurpreet Singh, ASI, also stated that some of the bags, containing poppy-husk, were in Crl. Appeal No.272-SB of 2001 15 damaged condition, and some