Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.374-SB of 1999 Date of Decision:July 31, 2008 1. Resham Singh son of Mahan Singh, s/o Bishan Singh, r/o Amargarh Kaler. 2. Surjit Singh son of Ginder Singh son of Gurnam Singh, r/o Hakam Singh Wala. .... Appellants Versus The State of Punjab .... Respondent 2. Crl. Appeal No.890-SB of 1999 Resham Singh son of Mahan Singh, s/o Sisan Singh, r/o Amargarh Kaler. ... Appellant. Versus The State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Arihant Jain, Advocate for the appellants in Crl. Appeal No. 374-SB of 1999. Mr. S.S. Rana, Advocate for the appellant in Crl. Appeal No. 890-SB of 1999. Mr. S.S. Bhullar, DAG, Punjab for the respondent. --- Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -2- SHAM SUNDER, J. This judgment shall dispose of Crl. Appeal No. 374-SB of 1999 filed by Resham Singh and Surjit Singh and Criminal Appeal No. 890-SB of 1999, separately filed by Resham Singh through jail, arising out of the judgment of conviction and the order of sentence dated 19.03.1999, rendered by the Court of Additional Sessions Judge, Sangrur, vide which it convicted both the accused/appellants, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substance 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 further rigorous imprisonment for a period of one year each, for having been found in possession of 89 bags, each containing 40 KGS of poppy husk, and one bag containing 39 Kgs 500 gms. poppy husk, without any permit or licence. 2. The facts, in brief, are that on 04.10.1992, a police party headed by Sub Inspector Swaran Singh, was present on the bridge of drain, in connection with a picket, where Bant Singh son of Jaggar Singh, came per chance. When Swaran Singh, SI was talking to Bant Singh, a truck came from the side of Patran, which was signalled to stop, by Sub Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -3- Inspector Swaran Singh. It was stopped at some distance. Two persons came out of the truck and tried to run away, but were apprehended. On inquiry, one person, told his name as Resham Singh, who was driver of the truck, and the other person, told his name as Surjit Singh, who was cleaner of the same. The number of the truck was UPV-9471. The search of the truck was conducted, in accordance with the provisions of law. 89 bags, each containing 40 Kgs of poppy husk, and one bag containing 39 Kgs 500 gms poppy husk were recovered from the truck. Two samples of 250 grams each of poppy husk, were taken out, from each of the bags. Thereafter, the contents of the samples were put into small cloth packets and the remaining poppy husk was kept in the same bags. The bags, and the samples, were converted into parcels, duly sealed, and taken into possession, along with the truck, vide a separate recovery memo. The ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded. The site plan was prepared. The accused were arrested. The Statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which they pleaded not guilty Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -4- and claimed judicial trial. 4. The prosecution, in support of its case, examined Ram Kumar, Sub Inspector, (PW-1), Gurmeet Singh, Sub Inspector, (PW-2), Swaran Singh, Sub Inspector, (PW-3), Krishan Kumar, Constable, (PW-4), Jagdish Singh, DSP, (PW-5) and Bhupinder Singh, DSP (PW-6). Thereafter, the Addl. P.P for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They however, stated that the police wanted the truck, in question, gratis ( on Begar ) and on their refusal, they were falsely implicated though nothing was recovered from them. 5-A In their defence, the accused examined Nirmal Singh, MHC, DW1, and Kulwant Singh, DW2. Thereafter, the defence evidence was closed, by them. 6. After hearing the Additional 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. Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -5- 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the accused-appellants. 8. I have heard the 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, vehemently, contended that one Bant Singh, independent witness was joined by the Investigating Officer, at the time of the alleged search and seizure,but he was not examined. They further submitted that non-examination of this witness, proved fatal to the case of the prosecution. It is, no doubt, true that Bant Singh, independent witness, was joined at the time of search and seizure, yet he was given up, by the Public Prosecutor for the State, as having been won over by the accused, as he came to the conclusion that he was not going to support the case of the prosecution. The Public Prosecutor, for the State, is the master of the case. It was for him, to decide, as to which witness he wanted to examine and which witness he did not want to examine. The Public Prosecutor for the State, exercised the discretion, vested in him in giving up Bant Singh, independent witness, as won over by the accused on the basis of sound judicial principles. It could not be said that the Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -6- discretion exercised by the Public Prosecutor for the State, in giving up Bant Singh, as won over by the accused, was in any way arbitrary and capricious. The evidence of the prosecution witnesses, is creditworthy, and inspires confidence, in the mind of the Court. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution, to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material or, even if, it is known that he has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218, a Division Bench of this Court, held that where the independent witness, was won over by the accused, and only the officials witnesses, Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -7- were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. 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 though the alleged recovery was effected in this case on 04.10.1992, yet the samples were sent to the office of Chemical Examiner on 27.10.1992 i.e. after the delay of 23 days. He further submitted that there was no explanation, with regard to delay in sending the samples to the office of the Chemical Examiner. He further submitted that, under these circumstances, the possibility of tampering with the samples, until the same reached the office of the Chemical Examiner, could not be ruled out, especially when the seals after use, remained with the police officials. It is, no doubt, true that there is no explanation, with regard to the delay. However, mere delay, in itself, is not sufficient to come to the conclusion that the sample parcels were tampered with, until the same reached the office of the Chemical Examiner. Other evidence, produced by the prosecution, has been held to be cogent, convincing, reliable and trustworthy. From the other evidence, Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -8- it was proved that none tampered with the samples until the same reached the office of the Chemical Examiner. Even there is report of the Chemical Examiner Ex.PA, which clearly proves that the seals on the exhibits were intact on arrival till the time of their analysis and agreed with the specimen impression of the seals. The report Ex.PA of the Chemical Examiner is per-se admissible, in toto, under Section 293 of the Code of Criminal Procedure. There is no challenge to the report of the Chemical Examiner, in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received in the office of the Chemical Examiner, the submission of the Counsel for the appellants, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. Since it was proved that none tampered with the samples, until the same reached the office of the Chemical Examiner, the submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -9- 11. It was next submitted by the Counsel for the appellants that in the present case, search and seizure were not conducted, in the presence of a Gazetted Officer or a Magistrate and as such, no authenticity could be attached to the same. The submission of the Counsel for the appellants, in this regard, does not appear to be incorrect. There is no requirement of law that the search and seizure proceedings, when the recovery of contraband, is effected from a vehicle, should be conducted in the presence of a Gazetted Officer or a Magistrate. Had the recovery of contraband been effected from the person of the accused, then, in terms of the provisions of Section 50 of the Act, notice was required to be served upon the accused, whether they wanted their search to be conducted in the presence of a Gazetted Officer or a Magistrate. In the instant case, recovery of contraband was effected from the truck. The provisions of Section 50 of the Act, did not apply and as such , the Investigating Officer was not bound to conduct the proceedings, in the presence of a Gazetted Officer or a Magistrate. 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.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -10- 12. It was next submitted by the Counsel for the appellants, that the prosecution failed to prove that the accused were in conscious possession of poppy-husk. The submission of the Counsel for the appellants, in this regard, also does not appear to be correct. One accused was driving the truck, and the other was sitting by his side. Both of them were apprehended, at the spot. 90 bags, each containing 40 Kgs. poppy-husk, were recovered from the truck. There was no other occupant, in the truck, except the accused. It was not a small quantity of poppy-husk, which was being carried in the truck. It was a large quantity of poppy-husk, which was being carried in the truck. It, therefore, could not be said that the same escaped the notice of the accused. The accused were, thus, found in possession of, and in control over the bags, containing poppy-husk, lying in the truck. Once the possession of the accused, and their control over the contraband, was proved, then statutory presumption under Sections 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut the presumption, by leading cogent and convincing evidence. However, the appellants, 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 Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -11- 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 satisfactorily." Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -12- 12-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." 12-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 Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -13- otherwise. 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.” 13. 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 Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -14- upheld the conviction, and sentence, awarded to the accused. In the instant case, the accused failed to explain, as to how, 90 bags each containing 40 Kgs poppy-husk were found in the truck, which was being driven by one of them. 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 their statements, under Section 313 Cr.P.C., the accused/appellants took up the plea, only of false implication. They did not take up the plea, that they did not know the contents of the bags, lying therein. The driver of the truck, did not take up the plea, that he was directed by the owner, to take the bags, to a certain place, and obeying his command, he was taking the same, to that destination. The other accused, did not take up the plea that he merely took a lift in the truck, as he knew the driver thereof, and did not know, as to what was contained in the bags. As stated above, the accused, thus, 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. Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -15- 14. It was next submitted by the Counsel for the appellants, that no specific question was put to the accused, during the course of their statements under Section 313 of the Code of Criminal Procedure, that they were in conscious possession of contraband and as such, the case of the prosecution became doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The accused were put a specific question, that one of them, was driver of the truck and the other was cleaner thereof. They were also put a specific question that 90 bags containing poppy husk, were loaded in the body of the truck aforesaid. They were, thus, made aware of the factum, that they were in possession of the contraband lying in the truck. In statements under Section 313 Cr.P.C., only the incriminating circumstances, appearing against the accused, in the prosecution evidence, are required to be put. The accused are not required to be put the provisions of law or the presumption obtaining under the provisions of law, in their statements under Section 313 Cr.P.C. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. Crl.Appeal No.374-SB of 1999 & Crl. Appeal No.890-SB of 1999 -16- 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. The same are liable to be upheld. 17. For the reasons recorded, hereinbefore, both the appeals are dismissed. The judgment of conviction and the order of sentence, dated 19.03.1999, are upheld. If the appellants are on bail, their bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, within two months, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure. 18. No specific order was passed by the trial Court, regarding the confiscation or otherwise of the truck. The trial Court is directed to initiate proceedings, as envisaged by the provisions of Sections 60(3) and 63 of the Act, for confiscation of the truck, in question, and submit the compliance report, within a period of three months, from the date of receipt of a certified copy of the judgment. (SHAM SUNDER) JUDGE July 31, 2008 dinesh