Crl. Appeal No.384-SB of 1998, 1 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.384-SB of 1998 Date of Decision : 27.11.2008 1. Satta @ Satnam Singh S/o Sardul Singh ...Appellants R/o Haryo Khurd. 2. Kulwinder Singh S/o Gurbax Singh, R/o Haryao. 3. Amrik Singh S/o Ranjit Singh, R/o Dhillon. 4. Jagdev Singh S/o Arjan Singh, R/o Mauladwala. Versus The State of Punjab ....Respondent Crl. Appeal No.58-SB of 2001 Bagga Singh S/o Gurnam Singh, ...Appellant R/o Lachkari Patti Dhilwan, P.S. Tapa, District Sangrur. Versus The State of Punjab ....Respondent Crl. Appeal No.321-SB of 2001 Balwinder Singh S/o Balwant Singh, ...Appellant R/o Village Mukandpura, P.S. Dehlon, District Ludhiana. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER Crl. Appeal No.384-SB of 1998, 2 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 Present: Mr. Bipan Ghai, Sr. Advocate, with Mr. Deepak Garg, Advocate, for the appellants, in all the appeals. Mr. Shilesh Gupta, DAG, Punjab, for the respondent, in all the appeals. SHAM SUNDER, J. This judgment shall dispose of Criminal Appeal No.384-SB of 1998, filed by Satta @ Satnam Singh, Kulwinder Singh, Amrik Singh, and Jagdev Singh, appellants, against the judgment of conviction, and the order of sentence dated 16.4.1998, rendered by the Judge, Special Court, Sangrur, vide which he convicted the accused/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 of the same, to undergo rigorous imprisonment for another period of one year each, Criminal Appeal No.58-SB of 2001, filed by Bagga Singh, accused/appellant, against the judgment of conviction, and the order of sentence dated 8.12.2000, rendered by the Judge, Special Court, Sangrur, vide which he convicted the accused/appellant, for the offence, punishable under Section 15 of the Act, 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 of the same, to undergo rigorous imprisonment for another period of one year, and Criminal Appeal No.321-SB of 2001, filed by Balwinder Singh, accused/appellant, against the judgment of conviction, and the order of sentence dated 1.3.2001, Crl. Appeal No.384-SB of 1998, 3 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 rendered by the Judge, Special Court, Sangrur, vide which he convicted the accused/appellant, for the offence, punishable under Section 15 of the Act, 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 of the same, to undergo rigorous imprisonment for another period of one year, all relating to FIR No.67, dated 17.4.1988, P.S. Dirba, for having been found in possession of 110 bags, each containing 38 kgs. Poppy- husk, (falling within the ambit of commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 17.4.1988, Jarnail Singh, ASI, alongwith other police officials, was holding a picket, on the canal bridge, in the area of village Raidhriana, where they had gone in an official vehicle, bearing No.PBS-2673. Labh Singh and Harminder Singh, public witnesses, were also members of the police party. At about 4.00 AM, on 17.4.1998, a truck bearing No.DIL-781, came from the side of village Raidhriana, and it was proceeding towards the canal bridge, metaled road. When the truck came near the police party, Jarnail Singh, ASI, gave a signal with the torch light, to stop. The truck was stopped, by the driver thereof. It was encircled, by the police officials. The driver, on enquiry, disclosed his name as Balwinder Singh S/o Balwant Singh. Devinder Singh and Bagga Singh, were sitting by the side of the driver, on the front seat. On the back side of the truck, Jagminder Singh, and four other persons were sitting. When the police party was enquiring the whereabouts of the accused, four persons except Jagminder Singh, who were sitting on the back side, jumped from the truck, and ran away. The Crl. Appeal No.384-SB of 1998, 4 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 police party tried to chase them, but it was unsuccessful in arresting them, at the spot. However, those persons, who succeeded in running away were Satta @ Satnam Singh, Amrik Singh, Kulwinder Singh @ Kala and Jagdev Singh @ Jagga. They were already known to Jarnail Singh, ASI, the Investigating Officer, and identified by other police officials. Jagminder Singh, Balwinder Singh, Devinder Singh and Bagga Singh, were apprehended at the spot. They were told that the search of the truck was to be conducted, and whether they wanted the same to be conducted, in the presence of a Gazetted Officer, or a Magistrate. They, however, reposed confidence in Jarnail Singh, ASI. Thereafter, the search of the truck, in accordance with the provisions of law, was conducted, as a result whereof, 110 bags, each containing 38 kgs. Poppy-husk, were recovered therefrom. A sample of 250 grams each, from all the bags, was taken out, and the remaining poppy-husk, was kept in the same 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. The truck, stepeny and tarpaulien, were also taken into possession, vide the same recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. Jagminder Singh, Balwinder Singh, Devinder Singh and Bagga Singh, accused were arrested. 3. Later on, all the remaining accused, except Devinder Singh, were also arrested, and supplementary challans, against them, were presented. After the completion of investigation, the accused were Crl. Appeal No.384-SB of 1998, 5 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 challaned. 4. 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. 5. In Sessions case No.18/31.1.89, 45 of 5.8.92 and 36 of 1996, and Sessions case No.301 of 23.11.2000, out of which Crl. Appeal Nos.384-SB of 1998 and 321-SB of 2001 respectively, have arisen, the prosecution, in support of its case, examined Gurdas Singh, ASI (PW-1), who partly investigated this case, Jagjiwan Singh, ASI (PW-2), a member of the police party, in whose presence, the truck was intercepted, and recovery of 110 bags, containing poppy-husk, was effected, Ajit Singh, ASI (PW-3), Puran Singh Bishat, Head Clerk,(PW-4), who brought the record of Transport Department of Delhi Administration, in relation to truck No.DIL-781, and stated that it was in the name of Paramjit Singh S/o Sampuran Singh, resident of Idgah, Delhi, Ramsher Singh, Constable (PW-5), who tendered his affidavit, Ex.PK, Nirmal Singh, HC (PW-6), who also tendered his affidavit, Ex.PL, and Om Parkash, SI (PW-7). The Addl. Public Prosecutor for the State, gave up Labh Singh, and Harminder Singh, PWs, as having been won over by the accused, vide his statements dated 30.3.1995 and 28.2.1997 respectively. Thereafter, he closed the prosecution evidence. 6. In Sessions case No.24 dated 27.1.1999, BT No.364/19.6.1999, out of which Crl. Appeal No.58-SB of 2001, has arisen, the prosecution, in support of its case, examined Ajit Singh, ASI (PW-1), Harminder Crl. Appeal No.384-SB of 1998, 6 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 Singh, ASI (PW-2), Nirmal Singh, HC (PW-3), Ramsher Singh, Constable (PW-4), Jagjiwan Singh, ASI (PW-5), and Om Parkash, Inspector (Retd.) (PW-6). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 7. The statements of the accused, who were convicted in Sessions case No.18/31.1.89, 45 of 5.8.92 and 36 of 1996, and Sessions case No.301 of 23.11.2000, out of which Crl. Appeal Nos.384-SB of 1998 and 321-SB of 2001 respectively, have arisen, 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. 7-A. Kulwinder Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he alongwith Amrik Singh and Satta, were brought from the village, in the presence of Dhan Singh, Numberdar, and Kuldip Singh. He further stated that they were falsely implicated, in this case. He further stated that no recovery was effected from him. 7-B. Jagminder Singh, accused, in his statement, under Section 313 Cr.P.C., stated that the police of P.S.Dirba, declared Ruldu, accused, innocent, in the murder case of Hardev Singh, his brother, whereas Ruldu, accused, was challaned, on the complaints of Jagminder Singh, and convicted later on. He further stated that the police of P.S.Dirba, got Ruldu and Tara, accused, released from the Government. He further stated that someone shot him, but the Police of P.S.Dirba, did not trace the accused, and he gave applications. He further stated that Sohan Singh, HC, saved his nephew in the murder case of Hari Singh, in which Crl. Appeal No.384-SB of 1998, 7 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 he was a witness, and got the accused convicted. He further stated that a complaint was filed against the then SHO, P.S.Dirba, and Sohan Singh, HC, of village Raidhari, and in that case, he was also a witness. He further stated that he was taken away by Jarnail Singh, ASI, from Village Raidharana, on 15.4.1988, in the presnece of Karnail Singh, Numberdar, member Panchayat, Hazura Singh, Pala Singh and Baldev Ram, and was falsely implicated, in this case, due to the aforesaid reasons. He further stated that the police was inmically disposed, towards him. 7-C. Satnam Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he, Kulwinder Singh and Amrik Singh, were brought from the village, in the presence of Dhan Singh, Numberdar, and Kuldip Singh, and were falsely involved, in this case. He further stated that no recovery was effected from him. 7-D. Jagdev Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he had come to the house of his relatives Sobha Singh, Lamberdar, at village Ghanaur Jatan, alongwith truck. He further stated that they had come for the last few days for constructing his house. He further stated that Jarnail Singh, Thanedar, came there, and asked for the truck, without any payment. Jarnail Singh, ASI, had been quite often taking the truck, from Sobha Singh, without any payment. He further stated that his truck was also demanded by Jarnail Singh, with payment. He further stated that he refused to do so. He further stated that Darshan Singh and Sobha Singh, were present at that time. He further stated that the Thanedar took him, to the Police Station, alongwith the truck. He further stated that he as also the truck, have been involved falsely, in this Crl. Appeal No.384-SB of 1998, 8 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 case. He further stated that nothing was recovered from his possession. 7-E. Amrik Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he, Satta and Kulwinder Singh, were brought from the village, in the presence of Dhan Singh, Numberdar, and Kuldip Singh, and were falsely involved, in this case. He further stated that no recovery was effected from him. 7-F. Balwinder Singh, accused, in his statement, under Section 313 Cr.P.C., took up the same plea, as was taken up by Jagdev Singh, accused. 7-G. In defence, they, however, examined Niranjan Singh (DW-1), Ramesh Kumar (DW-2), Maghar Singh, (DW-3), Kapur Singh, (DW-4), Labh Singh (DW-5), Ram Chand (DW-6), Tek Singh (DW-7), Harminder Singh (DW-9), Jarnail Singh, Constable (DW-10). Jagminder Singh, accused, also tendered into evidence certified copy of challan in Sessions trial No.23/A of 1983 decided on 15.2.1984, "State Vs. Ajaib Singh etc." under Section 302 read with 34 IPC, FIR No.190 dated 26.12.1992, P.S. Dirba, as Ex.DA, and certified copy of his statement in Sessions trial aforesaid, as Ex.DB, as well as copy of the judgment Ex.DC, in Sessions trial No.4 of 1984, decided on 31.5.1985, under Sections 302 read with 34 IPC "State Vs. Tara Chand etc." FIR No.127 dated 3.7.1983, P.S. Dirba. Thereafter, they closed their defence evidence. 8. The statement of accused Bagga Singh, who was convicted in Sessions case No.24 dated 27.1.1999, BT No.364/19.6.199, out of which Crl. Appeal No.58-SB of 2001, has arisen, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, Crl. Appeal No.384-SB of 1998, 9 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that his brother Lal Singh, was murdered in a fake police encounter, on the basis that his brother was having the links with the extremists. He further stated that the police was inimical towards him, and his family, and for that reason, he was falsely implicated. He further stated that no recovery was effected from his possession. He, however, produced, mark-A, photocopy of the Newspaper. 9. Since, Balwinder Singh, accused, was declared Proclaimed Offender, when the case was fixed for arguments, and Bagga Singh, accused, was declared Proclaimed Offender, at the initial stage, when they were arrested, the supplementary challans, referred to above, against them, were later on, presented, and separate trials, were held against them, as stated above. 10. Devinder Singh, accused, could not be arrested, and is still Proclaimed Offender. 11. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, Satta @ Satnam Singh, Kulwinder Singh, Amrik Singh, Jagdev Singh, Bagga Singh, and Balwinder Singh, accused, were convicted and sentenced, by the trial Court, vide separate judgments of conviction, and orders of sentence, referred to above, whereas, Jagminder Singh, accused, was acquitted. 12. Feeling aggrieved, against the judgments of conviction, and the orders of sentence, rendered by the trial Court, the instant appeals, were Crl. Appeal No.384-SB of 1998, 10 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 filed by Satta @ Satnam Singh, Kulwinder Singh, Amrik Singh, Jagdev Singh, Bagga Singh, and Balwinder Singh, appellants. 13. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully. 14. The Counsel for the appellants, at the very outset, contended that the Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, were not arrested, at the spot. He further submitted that, according to the prosecution story, they succeeded in running away, taking the shelter of darkness, and, therefore, their identity as the perpetrators of crime, could not be established. He further submitted that, even no identification parade, was conducted, by the Investigating Officer, during the course of investigation, so as to connect them, with the instant case. He further submitted that, under these circumstances, the trial Court, was wrong in recording conviction, and awarding sentence, to these accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It is evident from the statements of Ajit Singh, ASI, (PW-3), and Jagjiwan Singh, ASI (PW-2), in Sessions case No.18/31.1.89, 45 of 5.8.92 and 36 of 1996, that the truck being driven by Balwinder Singh, accused was signalled to stop, and the same was stopped. It was further stated by them, that thereafter the truck was encircled. Jagjiwan Singh, ASI (PW-2), a recovery witness, in clear-cut terms, stated that when the whereabouts of the accused, were being enquired, Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, who were sitting in the body of the truck, succeeded in running away. They were seen in the torch light. He further stated that he Crl. Appeal No.384-SB of 1998, 11 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 identified the accused, who succeeded in running away. He further stated that the police party chased them, but they could not be apprehended. The recovery, in this case, was effected, at about 4.00 AM, in the month of April, 1988. At 4.00 AM, in the month of April, it could not be said to be too much darkness. From the evidence of the aforesaid witnesses, it is proved that the police party, had sufficient time, to recognize the accused, who were the occupants of the truck. It was not that they had only a glimpse of the occupants of the truck, when it was moving. Since, the truck was stopped, it was not at all impossible for Jagjiwan Singh, ASI (PW-2), to recognize the accused, namely Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, who succeeded in running away. During the course of his cross-examination, Jagjiwan Singh, ASI (PW-2), was put a suggesstion that he could not identify the accused, namely Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, but he stoutly denied the same. In case, Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, were not present, in the body of the truck, when the same was stopped, and were falsely implicated, in this case, they could move an application, before the Court concerned, that their identification parade be ordered to be held. They did not move any application, in that regard. It means that they did not dispute their identity, as the perpetrators of crime. The identity of the accused, namely Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, was duly established, as the perpetrators of crime. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. Crl. Appeal No.384-SB of 1998, 12 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 15. It was next submitted by the Counsel for the appellants, that the prosecution miserably failed to prove that the accused were in conscious possession of the poppy-husk, referred to above. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Balwinder Singh, accused, was the driver of the truck. Two accused were sitting by his side, and the remaining five accused, were sitting in the body of the truck, on the back side. It was a big quantity of poppy-husk, which was being carried in the truck. It was not a small quantity of poppy-husk, which could escape the notice of the accused, who were the occupants of the truck. It was within the special means of knowledge of the accused, as to how, 110 bags, containing poppy-husk, were lying in the body of the truck, and to which destination the same, were being transported. It was not a small quantity of poppy-husk, which was being carried by the accused, for the purpose of consumption. Such a big haul of poppy-husk, was being carried by the accused, in the truck, for the purpose of sale, on commercial basis, for minting money. Since, these facts were within the special means of knowledge of the accused, they were required to explain the same. However, no explanation, was furnished by them. The possession of the accused, and their control over the bags, containing poppy-husk, was, thus, proved. Once, the possession of the accused, and their control over the bags, containing poppy-husk, 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 the statutory presumption, by leading cogent and convincing evidence. However, the appellants failed to rebut Crl. Appeal No.384-SB of 1998, 13 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. No plea was taken up by Balwinder Singh, accused, driver of the truck, that he was carrying the poppy-husk therein, as per the command of the owner. No plea was taken up by the other accused, that they took the lift in the truck, as they had no other means of transport, to reach their village. No plea was taken by Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, that they were only the labourers, engaged by the owner, or the driver of the truck, to load the gunny bags, containing poppy-husk, and unload the same, at a particular destination. No plea was taken up, by any of the accused, that they did not know, as to what was contained in the bags, lying in the truck. The only plea, which was taken up, by the accused, was that they were falsely implicated, in the instant case. The accused, however, failed to rebut the statutory presumption, under Sectiosn 54 and 35 of the Act. 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; Crl. Appeal No.384-SB of 1998, 14 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 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." 15-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. Crl. Appeal No.384-SB of 1998, 15 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 (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." 15-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 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