IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.562-SB of 1999 Date of Decision : January 25, 2008 1. Baldev Singh S/o Inder Singh, ....Appellants R/o Bhikhi, Distt. Mansa. 2. Rajinder Singh S/o Wazir Singh, R/o Ghabdan Kothi, Distt. Sangrur. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr.Sandeep Mann, Advocate for the appellants. Mr. O.P.Dabla, AAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 13.5.1999, rendered by the Court of Addl. Sessions Judge, Patiala, vide which it convicted the accused/appellants, for the offence punishable under Section 18 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 rigorous imprisonment for another period of two years each. 2. On 8.9.1997, Kuldip Kumar, SHO, Police Station Dera Bassi, alongwith Gurcharan Singh, ASI, and some other police officials, was present at Zirakpur Chowk, where he received a secret information, against both the accused/appellants, that they were carrying opium, in truck bearing No.HR-10- 3855. Believing the information to be reliable, ruqa was sent to the Police Station for the registration of a case, on the basis whereof, formal FIR was recorded by Lakhwinder Singh, ASI. Thereafter, the police party held picket Crl. Appeal No.562-SB of 1999 (2) (nakabandi) at T-point in the area of village Singpura. Kuldip Singh, Inspector, joined Desa Singh, an independent witness, with the police party. He also summoned Tejinder Singh, Sub Inspector, and Gurmit Singh, ASI, Incharge, Police Post Mubarakpur, at the spot. He also sent wireless message to DSP, Rajpura. Kewal Kumar, S.P., who was on his way to Chandigarh, came to the spot. When the police party was standing at the said place, at about 11.40 AM, truck bearing No.HR-10-3855 came from the side of Dera Bassi. It was being driven by Baldev Singh accused, whereas, Rajinder Singh accused, was sitting by his side. The police party stopped the truck. On enquiry, the accused told their names, parentage and addresses. Thereafter, the search of the truck was conducted, in accordance with the provisions of law. Opium wrapped in a glazed paper, was recovered, from the back of the driver's seat. The accused failed to produce any valid permit or licence for possession of the same. On weighment, it was found to be 2 Kgs. Two samples of 10 grams each, were separated, and put into small containers. The residue opium was put in a big container. Both the containers, were converted into parcels, and sealed with the seal bearing impressions 'KK' of Kuldip Kumar, Inspector and 'KK' of Kewal Kumar, S.P. Thereafter, the parcels of sample, and of the remaining opium, were taken into possession. The personal search of the accused was conducted, and currency notes of Rs.200/- from Baldev Singh, and Rs.100/- from Rajinder Singh, were recovered, which were taken into possession, vide separate memo. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 18 of the Act, was framed against them, to which they pleaded not guilty and claimed trial. Crl. Appeal No.562-SB of 1999 (3) 4. The prosecution, in support of its case, examined Kuldip Singh, MHC (PW-1),Jagtar Singh, Constable (PW-2), Lakhwinder Singh, ASI (PW-3). Kewal Kumar, SP (PW-4), Kuldip Kumar, Inspector (PW-5), Hans Raj, Constable (PW-6), and thereafter, the Addl.PP 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, stated that they were already arrested in some other case, and the opium was planted against them. In defence, they examined Neeraj Kumar, Constable (DW-1). 6. After hearing the Addl. PP 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 lower Court, the instant appeal, was filed by the accused/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, contended that though the secret information was received, in this case, against the accused, that they were in possession of opium, yet neither the same was reduced into writing, nor it was sent to the official superior by the Investigating Officer. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It is proved, from the evidence on record, that as soon as the secret information was received against the accused, that they were coming in truck No.HR-10-3855, and were in possession of opium, ruqa Ex.PC, containing this information, was reduced into writing by Kuldip Kumar, SHO. This Crl. Appeal No.562-SB of 1999 (4) information was sent to the police station, for the registration of a case. Kuldip Kumar, Investigating Officer, while appearing as PW-5, also stated that he sent the wireless message to D.S.P., Rajpura, conveying the aforesaid information. He further stated that Kewal Kumar, S.P., who was on his way to Chandigarh, after getting the message also came to the spot. It means, that the provisions of Section 42 of the Act, were duly complied with, by the Investigating Officer, as soon as he received the secret information against the accused. There was, thus, no violation of the provisions of Section 42 of the Act. 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 police officer, on the basis of whose information, the case was registered, in other words, who was the complainant, also investigated this case. He further contended that, he was not competent to investigate the case, and as such, his action was contrary to the provisions of law, and, therefore, the trial Court was wrong in recording the conviction, and awarding sentence, to the accused. He placed reliance on Gurcharan Singh Vs. State of Punjab 2005(4), RCR (Criminal) 681 decided by a Single Bench of this Court. However, it may be stated here that in S.Jeevanantham Vs. State through Inspector of Police, T.N. (2004) 5 Supreme Court Cases, 230, a case decided by the Hon'ble Apex Court, it was held that if the Police Officer, who is the complainant, also conducts the investigation of the case, and it is not proved that any prejudice was caused to the accused, on account of the adoption of such a course, the accused cannot be acquitted. In this case no evidence was led by the accused that a prejudice was caused to him, on account of adoption of the aforesaid course by the Investigating Officer. In view of the principle of law, laid down by the Hon'ble Apex Court, on the same point, the principle law to the contrary, laid down in Gurcharan Singh's case (supra), does not hold the field. In my Crl. Appeal No.562-SB of 1999 (5) opinion, Kuldip Kumar, Inspector, on whose information, the FIR was registered, was competent to conduct investigation. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 11. It was next contended by the Counsel for the appellants, that the accused were not found in conscious possession of the opium. It was proved from the evidence, that accused Baldev Singh, was driving the truck, whereas, Rajinder Singh accused, was sitting by his side. From the back side of the driver's seat, 2 Kgs. of opium, wrapped in a glazed paper, was recovered. It means, that the accused were found in possession of opium, a contraband. No explanation was furnished by the accused, as to how, the opium was found in the truck, in their possession. According to Section 54 of the Act, once a person is found to be in possession of illicit articles, he may be presumed, unless and until, the contrary is proved, that he had committed an offence under the Act. For the purpose of properly appreciating the contention, raised by the Counsel for the appellants, with regard to the conscious possession of the accused, the provisions of Section 54 are extracted hereunder :- “54. 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 controlled 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 Crl. Appeal No.562-SB of 1999 (6) substance has been manufactured, for the possession of which he fails to account satisfactorily.” 12. Similarly, Section 35 of the Act, raises a presumption regarding culpable mental state. According to Section 35, 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. According to the explanation, appended to this Section, culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. 13. The conjoint reading of both these Sections, clearly goes to reveal that the prosecution is only required to prove, that the accused were found to be in possession of a contraband, or a controlled substance. Once, it is proved by the prosecution, then the onus lies on the accused to prove that he was not in conscious possession of such a contraband, or controlled article. Since, both the accused were found sitting in the truck aforesaid, wherein 2 Kgs. opium, was found lying, and no evidence was led by them, nor anything could be brought out, during the course of the cross-examination of the prosecution witnesses, which could go to prove that they were not in conscious possession of 2 Kgs. Opium, it could not be said that they were not in conscious possession. Since, the accused failed to rebut the presumption operating under Sections 54 and 35 of the Act, their plea that they were not found in conscious possession of the opium, could not be said to be valid. The Counsel for the appellants, however, placed reliance on Baldev Singh Vs. State of Punjab 2005 (1) RCR (Criminal) 823, a case decided by a Single Bench of this Court, to contend that the possession of the appellants, in respect of the opium, was not conscious. In view of the provisions of Section 54 and 35 of the Act, no help can be drawn, by the Counsel for the appellants, from this authority. In this view of the matter, the submission of the Counsel for the appellants, that the Crl. Appeal No.562-SB of 1999 (7) prosecution failed to prove that the accused were found in conscious possession of the opium aforesaid, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellants, that, in fact, both the accused, were already in custody, in another case of theft, and this case was planted against them, at the instance of the complainant, in that case. The submission of the Counsel for the appellants, does not appear to be correct. Kuldip Kumar, Investigating Officer, during the course of cross-examination admitted that FIR No120 dated 5.9.1997 was registered against Jagroop Singh, Gurmail Singh, Keeru, Baldev Singh and Dal Singh accused. He further stated that case FIR No.117 dated 2.9.1997, under Sections 457/380 IPC was also registered against the accused. He, however, stated that after the apprehension of the accused, in this case, they were arrested in the aforesaid two FIRs. There is nothing, on record, that the accused were arrested in the aforesaid two FIRs, earlier to the recovery, in this case. There is no reason to disbelieve the statement of Kuldip Kumar, Inspector, a responsible Police Officer, that the accused were arrested in the aforesaid FIRs, after the recovery was effected, from them, in the present case. In this view of the matter, the submission of the Counsel for the appellants, that the accused were falsely implicated, 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 instant appeal is dismissed. The judgment of conviction and the order of sentence dated Crl. Appeal No.562-SB of 1999 (8) 13.5.1999, are upheld. The accused/appellants are directed to surrender to their bail bonds for undergoing the remaining part of their sentence. January 25, 2008 (SHAM SUNDER) Vimal JUDGE