Criminal Appeal No.1168-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No.1168-SB of 2005 Date of decision: 23 rd May, 2008 Bhajan Lal and another ... Appellants Versus State of Punjab ... Respondent ... Present: Mr. S. P. S Sidhu, Advocate for the appellant. Ms Manjari Nehru, Deputy Advocate General, Punjab, for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL ... JUDGMENT: HARBANS LAL, J This appeal is directed against the judgment /order of sentence dated 4.6.2005 passed by the Court of learned Special Judge Ferozepur, whereby he convicted and sentenced accused/appellants Bhajan Lal and Jagir Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- each and in default of payment of the same, the defaulter to further undergo rigorous imprisonment for one year under Section 15 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). Shortly put, the facts of the prosecution case are that on 25.1.2003, SI Pushpinder Singh, Incharge CIA Staff, Abohar, among other police officials happened to be present on the turning point of village Shatirwala on Abohar road in a private jeep for the purpose of picketing. Meanwhile, a truck bearing registration No. RJ-7G-0460 was spotted Criminal Appeal No.1168-SB of 2005 -2- approaching towards the Naka place. On catching sight of the police party, the truck driver halted the truck 50 yards behind the aforesaid place and switched off its lights. The aforesaid Sub Inspector in the company of other police officials reached near the truck. To the query as to why the truck was stopped, the driver told that the same had developed some mechanical defect. On inquiry, he truck driver disclosed his name to be Bhajan Lal whereas the other one told his name to be Jagir Singh. They were told by the Sub Inspector that the truck was suspected to contain some contrabands and search of the same was to be carried out and they should tell as to whether they want to have the same in the presence of a Gazetted Officer or a Magistrate or from him. On receipt of wireless message, Swarndeep Singh, DSP, Sub Division, Fazilka came at the spot. On his direction, the Sub Inspector made search of the truck which yielded 6 bags containing poppy husk layered in between the gypsum bags. One sample of 250 grams of poppy husk was drawn from each bag to serve as sample and converted into a parcel. The remainder of each bag when weighed came to 39 Kg.750 grams which was also turned into a parcel. Thereafter, all the parcels were sealed with the seal PS. The sample seal was prepared separately. The aforementioned DSP also affixed his own seal bearing impression SDS on all the parcels. The Sub Inspector handed over his seal to HC Gurmit Singh, whereas the DSP retained his seal with him. All the parcels were seized vide recovery memo. The truck, the photostat copy of registration certificate of the truck, one temporary permit, one consignment record along with 450 bags of gypsum and driving license of accused Bhajan Lal were seized vide separate recovery memo. The accused were formally arrested and informed about the grounds of their arrest. On personal search of accused Bhajan Lal, Criminal Appeal No.1168-SB of 2005 -3- currency notes worth Rs.270/-were recovered, which were taken into possession vide recovery memo. The currency notes of Rs.230/- yielded from the personal search of Jagir Singh were seized vide separate memo. The Sub Inspector sent Ruqa to the Police Station. On its basis, formal FIR was registered. He prepared the rough site plan showing the place of recovery, recorded statements of witnesses and on return to the Police Station Sadar, Fazilka, produced the entire case property and both the accused before the SI/SHO Jaswinder Singh, who after verification, also affixed his own seal JS on all the parcels as well as the sample seal and took the case property into his custody vide recovery memo. On receipt of chemical examiner's report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused were charged under Section 15 of the Act to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined PW-1 Mohinder Kumar Clerk, Office of the District Transport Office, Shri Ganganagar, PW-2 Constable Des Raj, PW-3 DSP Swarandeep Singh, PW-4 SI Pushpinder Singh (Investigator), PW-5 HC Gurmit Singh, PW-6 ASI Kashmir Singh, PW-7 Jaswinder Singh, SI/SHO and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence apart from false implication. They did not lead evidence in defence. After hearing the learned Additional Public Prosecutor, the learned defence counsel and examining the evidence on record, the learned Criminal Appeal No.1168-SB of 2005 -4- trial court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved with their conviction/sentence, they have preferred this appeal. I have heard Mr. S.P.S Sidhu, Advocate for the appellants, as well as Ms Manjari Nehru, Deputy Advocate General, Punjab for the State, besides going through the record with due care and circumspection. Mr. S.P.S Sidhu, Advocate appearing for the appellants urged with a good deal of force that no independent witness has been joined though as surfaces in the cross-examination of Pushpinder Singh (sic), a petrol pump is situated near the place of recovery and the same remains open 24 hours and a chowkidar and an attendant remain present there and a Dhaba is also situated near the place of recovery and, thus, obviously there could be no dearth as to the availability of such witnesses and for their non joining, an adverse inference has to be drawn to the effect that the recovery was not effected in the alleged manner. To add further to it, the prosecution case rests upon mere statements of official witnesses and they being highly interested in the success of the case, no implicit reliance should be placed on their evidence. To tide over these submissions, Ms Manjari Nehru, Deputy Advocate General, Punjab appearing for the State, maintained that as is well settled, the evidence of official witnesses is as good as of others and as such, the prosecution case which otherwise stands proved to the hilt, should not be thrown out of hand, merely because of non joining of an independent witness. This contention merits acceptance. Of course, as appears in the cross-examination of the above mentioned witness, a petrol pump as well as a Dhaba are situated in the Criminal Appeal No.1168-SB of 2005 -5- proximity of the place of recovery, but as stated by this witness, the Dhaba closes at about 11.00 P.M,whereas recovery was effected at about 6.00 A.M. By summoning the record of the petrol pump, the accused could have got proved that the same remains open and the attendants remain present there round the clock. But to their utter dismay, they did not adduce any such evidence. In re: Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, the Apex Court observed that “the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.” Needless to say, the effect of non joining of a public man has been commented upon, on a number of occasions by various High Courts and the Supreme Court. In re: Chander Shekhar v. State, (1986) 4 Crimes 419, it has been observed as under :- “ One of the greatest disadvantages of living in highly urbanized areas is that people are out of sympathy with their neighbours and fellow citizens. This is for a variety of reasons. None wants to get involved in such mattes. Our experience is that in the recent past it is really becoming difficult to involve public witnesses in court cases particularly in cases of capital offences. It is commonplace experience that in Delhi if an accident takes place, hardly any body feels concerned. Life is so mechanical and fast that no body has time to sympathize Criminal Appeal No.1168-SB of 2005 -6- with a fellow citizen. We blame none for it as this is the life style growing in highly urbanized areas. Even those who feel concerned keep away for fear of their own security and getting involved in tardy proceedings. There is a subdued murmur that the law and order agency has failed to provide security to the law abiding citizens and what rules, now, is the might and ingenuity of the criminals. Under these circumstances, it will be dangerous not to rely on relation witnesses and police witnesses in such matters. Of course, provided, such witnesses are confirmed to be truthful when tested at the yardstick of the peculiar facts and circumstances of each case.” Further, in re: Appabhai v. State of Gujarat , AIR 1988 SC 696, it has been ruled by the Hon'ble Supreme Court as under :- “ It is no doubt true that the prosecution has not been able to produce any independent witnesses to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilance. They keep themselves away from the Court, unless it is inevitable. They think that crime like civil dispute is Criminal Appeal No.1168-SB of 2005 -7- between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused.” Further, in re: State,Govt. of NCT of Delhi v. Sunil and another, (2001) 1 Supreme Court Cases 652, the Apex Court 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 around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives Criminal Appeal No.1168-SB of 2005 -8- evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.” Reverting back to the facts of the present case, the recovery was effected in the early hours. Now-a-days, no one comes forward to join the investigation. The situation in this case, at the time of recovery, was such that no one would have been primarily available to join the investigation. If it is presumed that the chowkidar or the attendants were present on the said petrol pump, even they in the natural course of their conduct, would have not come forward to associate with the investigator by leaving the petrol pump unattended. In such a situation, safest course open Criminal Appeal No.1168-SB of 2005 -9- to a Court is that it should carefully scrutinize the evidence of police witnesses and if the same is found to be trustworthy and inspires confidence and they do not appear to have any motive to falsely implicate the accused, there is no reason why they should not be believed. On appraising and analysing the evidence tendered by the recovery witnesses with due care and caution, it emanates that no previous ill-will or motive has been attributed to either of these for deposing against the accused. When their evidence was tested with cross-examination, they stood like a rock. Thus, this contention being devoid of any merit is turned down. It is further argued that there was unexplained inordinate delay of as many as 17 days in sending the samples to the Chemical Examiner. The seal remained with the police official during this interregnum. Sequelly, the possibility of the contents of the sample parcels being tampered with, cannot be ruled out. To tide over these submissions, Ms Manjari Nehru, Deputy Advocate General, Punjab, for the State of Punjab, urged with great eloquence that as would be apparent from the Chemical Examiner's report, Exh. P-16, the seals affixed on the sample parcels when received in the office of the Chemical Examiner, tallied with the sample seal, which rules out the alleged possibility. There is substance in this submission. A conjoint reading of the affidavit, Exh. P-2 of Constable Des Raj, PW-2, who carried the sample parcels to the office of the Chemical Examiner, with Exh. P-16 go a long way in proving that at no stage the sample parcels were allowed to be tampered with. It is a matter of common knowledge that day by day, the crime is on the increase, whereas the strength of the Police Constabulary well-nigh continues to be the same. In Criminal Appeal No.1168-SB of 2005 -10- other words, Police force vis-a-vis steep in the crime has not been increased proportionally. The police officials remain awfully busy in manifold duties with the result, too often, the delay creeps in the the despatch of the sample to the Chemical Examiner for analysis. That being so, in the present and prevalent scenario, no serious note of such a delay should be taken particularly when it has been established by documentary evidence on the record that the contents of the sample parcels were not tampered with any moment right from seizure till its analysis. So, this contention is jettisoned. Mr. Sidhu stressing his every nerve pressed into service that the conscious possession of the accused/appellants qua the bags of poppy husk is not demonstrated and that being so, the presumption arising under Section 35 and 54 of the Act is not available to the prosecution case. He further canvassed at the bar that such possession has not been put to either accused/appellant when examined under Section 313 of the Code of Criminal Procedure. To buttress this stance, he has sought to place abundant reliance upon the observations made by the Full Bench of this Court in Kashmir Singh v. State of Punjab, 2006 (2) Recent Criminal Reports (Criminal) 477. Ms Manjari Nehru countered these contentions by urging with full force that on assessing the prosecution evidence, the conscious possession of the accused/appellants qua the poppy husk bags stands well proved and resultantly, the presumption arising under the said Sections operates in favour of the prosecution. These submissions require deep and thoughtful consideration. In re: Madan Lal and another v. State of Himachal Pradesh, 2003 (4) Recent Criminal Reports (Criminal) 100, it was held in the Criminal Appeal No.1168-SB of 2005 -11- following terms :- “ 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 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 statutory recognition to this position because of presumption available in law. Similar is the position in terms of Section 54 of the Act where also presumption is available to be drawn from possession of illicit articles. In Madan Lal and another's case (supra), accused Manjit Singh was driving the car and the remaining 4 accused were sitting therein. One steel container (Dolu) in a black coloured bag was recovered from the said car which contained 820 grams Charas. The accused was convicted and sentenced by the trial Court holding that they were found in conscious possession of Charas. The Apex Court held hat 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. Here in this case, it is not the case of Jagir Singh accused that he had taken a lift in the truck from Bhajan Lal accused. As for the latter, he has not admitted that he was driving the truck. Had they both admitted these facts, only then the onus was to shift on to the prosecution to prove Criminal Appeal No.1168-SB of 2005 -12- that they were in conscious possession. They would have taken such pleas in their statutory statements and pleaded that they did not know as to what were the contents of the bags. In view of the provisions of Section 35 as well as 54 of the Act, once the accused was found in possession of the poppy husk bags, the presumption arises against him for his conscious possession. There is no quarrel with the proposition of law laid down in re: Kashmir Singh (supra) that the moment the accused were charged under Section 15 ibid, they came to know about the fact that as per allegations of the prosecution, they were found in possession of the poppy husk bags. A suggestion could have been put to the recovery witnesses by the accused that they were not in possession or conscious possession of the alleged bags. They all through the trial were aware that there was charge against them that they were found in possession of poppy husk bags. In re: Megh Singh v. State of Punjab, 2003 (4) Recent Criminal Reports (Criminal) 319, three persons were found sitting on 25 bags containing poppy husk by the police party. It was argued on behalf of the accused/appellant that the facts of the case bear resemblance with that of Avtar Singh v. State of Punjab, 2002 (4) Recent Criminal Reports (Criminal) 180. The Apex Court ruled that the decision in Avtar Singh's case (supra) was rendered in a different factual background. The argument was rejected with the observation that since the decision was rendered on consideration of several peculiar factual aspects especially noticed in that case, it is of no assistance to the accused also. It was ruled in Megh Singh's case (supra) that in the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused/appellant that the possession was not conscious in the logical background of Sections 35 and Criminal Appeal No.1168-SB of 2005 -13- 54 of the Act. Coming to the facts of the instant case, the accused/appellants have not shown that the possession was not conscious in the logical background of Sections 35 and 54 of the Act. Under Section 35 of the Act, the presumption is for the existence of culpable mental state and the burden shifts on the accused in case the possession of contraband is established. Under section 54 of the Act, the burden shifts on the accused to account satisfactorily for the possession of the narcotic drug or psychotropic substance. In view of the observation rendered in re: State of Gujarat v. Abdulrasid Ibrahim Mansuri, 1991 Criminal Law Reporter (Gujarat) 101, “the statement of the accused and his defence is required to be considered in view of the statutory presumptions.” But the question arises, when the accused travelling in the vehicle, neither takes the plea that he had taken lift either as a gratuitous passenger or otherwise nor leads evidence in defence in proof of such fact and the driving accused too does not take the plea in his statutory statement that he was not made aware as to the contents of the goods loaded either by the owner thereof or by the owner of the vehicle or the Booking Transport company, nor leads defence in this behalf, nor puts such suggestions to the recovery witnesses, it will have to be presumed that his possession is established, which he has failed to explain satisfactorily. In the absence of such pleas or defence evidence, the doctrine of mens rea as enshrined in the above-mentioned Sections in seizure of narcotic drug applies. The culpable mental state includes, intention, motive, knowledge etc. The rule of presumption contemplates that the statutory presumption is to be drawn. To my mind, the statute no where lays down that such presumption is required to be put to the accused, when examined under Criminal Appeal No.1168-SB of 2005 -14- Section 313 of the Code of Criminal Procedure. Right from the stage of seizure till the examination of the accused, he continues to be cognizant of the fact that the contraband was recovered from his possession. So, such possession by implications of Sections 35 and 54 of the Act is not required to be put to the accused specifically, when he is being examined under Section 313 of the Code of Criminal Procedure. In the present case, neither accused has put the stated suggestions to any recovery witness nor adduced evidence in defence operating as rebuttal to the presumptions arising under the afore-mentioned Sections. The facts of Megh Singh's case (supra) are somewhat identical with the instant one. Thus, in view of the observations made in that case, it is held that in the factual scenario not only possession but conscious possession of the accused/appellants has been established by the prosecution in this case. In re: Gunwantlal v. The State of M.P, AIR 1972 SC 1756, it has been laid down that the possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given, holds it subject to that power or control. Harking back to the facts of the case in hand, the accused/appellants were in possession as they had power and control over the poppy husk bags recovered from the truck. 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. In the case at hand, the opportunity was afforded to the accused to lead evidence in defence, but without adducing even a scintilla of evidence, they closed their defence. Criminal Appeal No.1168-SB of 2005 -15- Exh. P-1 purport to be the driving license issued in favour