IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT CHOKHA RAM Versus STATE OF RAJASTHAN S.B. CRIMINAL APPEAL NO. 392/2006 Date of Judgment : 20.12.2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. B.S. Rathore for the appellant. Ms. Chandralekha – Public Prosecutor. BY THE COURT There were three accused, namely,Shambhu Lal , Meenakshi and Chokha Ram before the Special Judge, NDPS Cases, Jodhpur, to face the trial for various offences under Narcotics Drugs and Psychotropic Substance Act (hereinafter referred to as 'the Act') . Page 1 of 24 Out of the above three, accused Shambhu Lal and Chokha Ram were tried for offence under section 8/15 of the Act and the rest one was, tried for offence under section 8/25 of the Act. The learned trial court, vide judgment dated 20.04.2006, acquitted the two accused Shambhu Lal and Meenakshi and convicted the present appellant under section 8/15 of the Act and sentenced him to ten years' rigorous imprisonment and a fine of Rs. One lac and in default of payment of fine, to further undergo two years' rigorous imprisonment. It arises under following circumstances that on 11.10.2003 at about 5.15AM , Station House Officer of the Police Station, Bhinmal, received a sleuth information from his informer to the effect that Chokha Ram S/o Vagta Ji Bishnoi would bring illegal poppy husk (doda post) in a truck bearing No. RJ-27-G-8977 from Sangaria Chittorgarh to Arnay. On the aforesaid information, police arranged Nakabandi and during Nakabandi at about 6.15 p.m. one truck came from the side of Railway Station. On seeing the police Page 2 of 24 Nakabandi, the driver of the truck ran away leaving the truck in front of Eye Hospital, Bhinmal. The police party reached near the truck and on searching it, they found one person sitting in the cabin of the truck. On inquiry, he told his name to be Chokha Ram S/o Vagta Ji Bishnoi, resident of Arnay. From the body of the truck, police recovered 88 bags containing poppy husk weighing 23 Qtls. 40 kgs. and from each of the bag, 500 gms. sample and 500 gms. control sample was taken and sealed and memos of recovery were prepared. The truck was seized and the accused- appellant was arrested. A criminal case was registered against the accused and the investigation commenced. After usual investigation, police filed charge-sheet against the accused-appellant in the competent court. After hearing the parties on charge, learned trial court framed charge against the accused-appellant under Section 8/15 of the Act. The accused-appellant did not plead guilty and claimed to be tried. During the course of trial, the prosecution to prove its case examined as many as 11 witnesses, namely, P.W.1 Page 3 of 24 Ramkishan, P.W.2 Amar Singh, P.W.3 Nand Lal, P.W.4 Daleep Singh, P.W.5 Vijay Singh, P.W.6 Ishwar Singh, P.W.7 Bhoora Ram, P.W.8 Durga Ram, P.W.9 Mohan Singh, P.W.10 Deva Ram and P.W.11 Chain Singh and produced Ex.P.1 to Ex.P.20 as documentary evidence . The incriminating evidence was put to the accused for explanation under Section 313 CrPC. The accused in his statement under Section 313 CrPC stated that all the prosecution witnesses have given false statements. He stated that on 10.10.2003 he went to Modra to borrow some money from his maternal brother Bhagwan Ram for the treatment of his ill daughter, but he did not had money, therefore, on 11.10.2003 he was coming back to his village in the truck. He further stated that he sat in the truck at the 'chouraha' of Ashapura Temple. The truck driver stopped the truck at Bhinmal and asked him to remain sitting in the truck while he went for urination. He further stated that he did not know what was contained in the body of the truck. He is innocent and he has falsely been implicated in the case. Page 4 of 24 In defence accused examined two witnesses, namely, DW/1 Bhagwan Ram and DW/2 Bhanwar Singh. After hearing the final arguments, the learned trial court vide the impugned judgment convicted the accused-appellant for the offence under Section 8/15 of the Act and sentenced him as narrated above. Out of the eleven witnesses examined by the prosecution, PW/3 Nand Lal did not corroborate the prosecution story and turned hostile. Prosecution examined two sets of evidence to prove the charge against the appellant. First set of evidence, includes those witnesses who were the members of the search party i.e. PW/2 Amar Singh, PW/9 Mohan Singh, PW/10 Devi Ram and independent motbir PW/5 Vijay Singh. Second set of witnesses includes those witnesses who deposed Page 5 of 24 about keeping the sealed packets of sample articles and seized articles in the 'malkhana' of police station and further to prove link evidence about the fact that samples remained in tact through out the process of investigation, till the samples reached the Forensic Science Laboratory and regarding other investigation process. These witnesses are PW/4 Dilip Singh, PW/6 Ishwar Singh PW/7 Bhura Ram, PW/8 Durga Ram and PW/11 Chain Singh. PW/2 Amar Singh , PW/9 Mohan Singh, PW/10 Deva Ram and an independent motbir PW/5 Vijay Singh corroborated the prosecution story stating that on 11.10.2003 at about 05.15 PM a truck bearing No.RJ 27-G-8977 was coming from the side of Railway Station, Bhinmal and on seeing the police party, truck stopped near Eye Hospital and when police party reached the truck they found one person, namely, Chokha Ram sitting in the truck and in the body of truck 88 bags of poppy husk weighing 23 Qtls. and 40 Kgs. was recovered. Appellant Choka Ram was Page 6 of 24 arrested at the spot and necessary seizure memo was prepared. Sample of poppy husk was taken which were further forwarded for chemical examination and after receiving the report of Forensic Science Laboratory, charge sheet was filed. All these witnesses admitted their signatures on the various memos prepared at the spot. PW/1 Ram Kishore and PW/11 Chain Singh deposed about the various steps taken towards registration of First Information Report and investigation. PW/4 Dilip Singh , PW/6 Ishwar Singh , PW/7 Bhura Ram, and PW/8 Durga Ram were examined to prove the fact that samples of poppy husk , as well as total recovered articles, remained in tact in a sealed condition, during entire investigation and up to reaching of the samples to Forensic Science Laboratory. When the appellant was questioned by the trial Page 7 of 24 court, under section 313 Cr.P.C., he did not dispute the fact that he was sitting in the truck but he took a specific plea that he boarded in the truck from Modra where he went to lend some money from his cousin brother Bhagwan Ram and at the time of the relevant search, the driver of the truck went for urination and it was not in his knowledge that the truck contained the poppy husk. The learned counsel for the appellant contended that no liability can be fastened upon the appellant for possession of the contraband article, contained in the truck, on the basis of the presumption under section 35 of the Act and further he assailed the order of the learned trial court, on the ground that the prosecution failed to prove the fact that the sample which were taken by the Investigating Officer, remained in the intact sealed position, till it reached the Forensic Science Laboratory. So far as the first argument is concerned, the learned counsel for the appellant, vehemently Page 8 of 24 contended that when the appellant took a specific plea that he boarded in the truck at Modra and the driver of the truck was Shambhu Lal and just before the search by the Investigating Officer, the driver Shambhu Lal went for urination and when Shambhu Lal came to know that the truck was being searched by the police party, he ran away from the place and the appellant is not responsible for the alleged possession of poppy husk and the learned trial court committed serious illegality in appreciation of the evidence and holding guilty, the present appellant, for offence under section 8/15 of the Act. Learned counsel for the appellant argued that at the time of the search by the investigating officer, PW/2 Amar Singh, the appellant remained in the truck without there being any attempt to run away from the truck, in itself, is sufficient to prove the fact that he was not knowing that the truck is loaded with poppy husk. Had it been in the knowledge of the appellant ,he would have ran away immediately at the time of the search by the investigating officer, and this conduct of Page 9 of 24 the accused shows his innocence and absence of mental culpability. Learned counsel for the appellant further contended that, presumption as to culpable mental state, has been discharged by the appellant by the circumstances appearing in the evidence of the prosecution story, from which it can very well be inferred that the accused could not have had the knowledge of the required intention. Per contra, the learned Public Prosecutor vehemently defended the judgment of the learned trial court and argued that when the appellant was found in the truck, containing a huge amount of poppy husk, i.e. 23 Qtls. and 40 Kgs. , then the burden of proof, shifts on the appellant ,about the presence of the poppy husk in the truck. The learned public Prosecutor sought to rely on the legal presumption envisaged in section 35 of the Act. Section 35 of the Act reads as under :- Page 10 of 24 “35. 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. “ The learned counsel for the appellant relied Page 11 of 24 on the following judgments in support of his first argument:- 1.Abdul Rashid Ibrahim Mansuri vs. State of Gujarat [2001 (1) Crimes 187 (SC) 2.Ismail Khan Aiyubkhan Pathan vs. State of Gujarat [2000 SCC (Cri.)1241] 3. Ram Chandra vs. State of Rajasthan [2003 (1) Cr.L.R. (Raj.) 2003 (1) I have considered the rival contentions advanced by both the parties and also perused the judgments cited by the learned counsel for the appellant. The learned counsel for the appellant relied on one circumstance about the peaceful presence of the appellant at the site of search, on the basis of which, he tried to show the innocence of the appellant. A presumption is an inference of fact or law drawn from other known or proved facts. The rule of Page 12 of 24 presumption is a rule that Court may or shall draw a particular inference from a particular fact unless and until if so permitted the truth of such inference is rebutted. Presumption subjects the extent of probative force to precise rules, excluding Judicial discretion-rules- that treat an unknown fact as proved by proof of or admission of certain facts, or requirement of law. PW/9 Mohan Singh , and PW/10 Dewa Ram were also the members of the search party, along with PW/2 Amar Singh. PW/9 Mohan Singh and PW/10 Dewa Ram, in the examination -in-chief, deposed that when the appellant was asked about the contents loaded in the truck, both these witnesses deposed that the appellant answered them that there were pipes, which were loaded in the truck. I think the evidence of these two witnesses, clearly shows that the appellant intentionally mis-informed the members of the search party, about the material which was loaded in the truck. Page 13 of 24 The Hon'ble apex Court in Abdul Rashid Ibrahim Mansuri's case (supra) held that if the contraband was being transported by an auto-rickshaw driver, without there being knowledge of the contents of the material , ordered to acquit the said driver and the presumption under section 35 of the Act regarding culpable mental state of the appellant, was not considered to be proved. In Ismail Khan Aiyubkhan Pathan's case (supra) where gunny bag was found in a room, which was in the possession of another person, a mere presence of the appellant was not considered to be a sufficient evidence for conviction under the Act. In Ram Chandra's case (supra), where two persons came in the night with the bag and licence of another person was found in the recovered bag, the benefit of doubt was extended to the accused regarding the possession of the 'charas.' The question in this case, arises for consideration Page 14 of 24 is that in the light of the evidence adduced by the prosecution, whether it can be said that the poppy husk weighing 23 Qtls. and 40 Kgs. recovered from the truck, in which the appellant was sitting at the time of the search, whether it can be said that it was in the exclusive possession of the accused appellant.? Proof of possession is essential for making the conviction under section 8/15 of the Act. The term possession has not been defined in the Act but as per judicial decision of the various courts, it is well settled proposition of law that the possession would apply to dominion, as well as control. The exercise of dominion would be possible only if there is knowledge of the existence of any fact, or presence, at a particular place. The provisions of the Act, provides for punishment for possession or transportation of the opium products or poppy husk. The possession is made up of two elements . Firstly, the 'corpus' i.e. element of physical control and secondly, the 'animus' or independence with which such control is exercised. It is the conscious possession which is contemplated Page 15 of 24 by penal status. Further 'corpus' without 'animus' is in-effective. But if 'animus' is established, it does not matter whether the possession is actual or constructive. From the above discussion, it is necessary for the court to bear in mind that in possession, there necessarily must be ample element of intention involving a sufficient knowledge of the presence of the contraband articles by the accused. Applying the above principles, the present case is being examined. There is no dispute on the point that when the truck was searched by the investigating officer, it contained 23 Qtls. and 40 Kgs. of poppy husk, in different packets, which were recovered and the appellant was sitting in the truck at the relevant time. From the initial stage, the defence of the appellant, was that he was not knowing the presence of the contraband articles in the truck and he boarded Page 16 of 24 in the truck from Modra and at the relevant time of search, Shambhu Lal ,who was the driver of the truck, went for urination and did not come back. But from the examination-in-chief of PW/9 Mohan Singh and PW/10 Dewa Ram, it is clear that when the accused appellant was enquired about the contents in the packets found in the truck, he replied that there are pipes in the truck. From the evidence of the members of the search party, it appears that they have not admitted this fact that the accused was not in knowledge about the presence of the contraband goods in the truck,although they were put in cross- examination, the suggestion of this fact. There are two principles of criminal jurisprudence:- (1) that the burden to prove the case beyond reasonable doubt, lies on the prosecution, (2)that the accused is entitled to every reasonable benefit of doubt. If two reasonably probable and evenly balanced view of the evidence are possible, one must necessarily concede the existence of a reasonable Page 17 of 24 doubt. But at the same time, fanciful and remote possibilities ,must be left out of accounts. PW/2 Amar Singh clearly deposed that he was having an information of the transportation of the contraband goods and he searched the truck and found the poppy husk weighing 23 Qtls. and 40 Kgs. along with appellant Chokha Ram sitting in front of the truck. In view of the deposition made by two witnesses, namely, PW/9 Mohan Singh and PW/10 Deva Ram , the appellant at the first opportunity replied that the truck contained pipes . This statement of appellant to two members of the search party, clearly shows animus on the part of the appellant, regarding possession of poppy husk. Victims or accused may act differently. Reaction and behaviour would depend upon a variety of circumstances. If accused faces such a circumstance that there could be no way to escape the peaceful reaction amounting to surrender may be a natural behaviour and it may not lead to inference of innocence of the accused. Page 18 of 24 The judgment cited by the learned counsel for the accused appellant regarding culpable mental state is concerned, the facts of the present case are different from the judgment cited by the learned counsel on this point. Because it is only appellant who was alone found in the truck by the search party and at the relevant time, for the first time the reply of the appellant is most relevant for considering the culpable mental state of the appellant. It is relevant as conduct of the accused. The statement of these two witnesses, PW/9 Mohan Singh and PW/10 Deva Ram, clearly shows the animus on the part of the accused appellant Chokha Ram. The defence story as adduced by the appellant Chokha Ram by producing two witnesses, DW/1 Bhagwan Ram and DW/2 Bhanwar Singh ,does not inspire confidence and faith. Thus, in view of aforementioned discussions, and in particular the evidence of PW/9 Mohan Singh and PW/10 Deva Ram, deposing that accused, at the first instance , replied them about the presence of pipes in Page 19 of 24 the truck, accused appellant has failed to prove the fact that he had no such mental state with respect to the possession of poppy husk as charged. So far as the second argument of the learned counsel for the accused appellant is concerned, I have perused the statement of witnesses , who adduced the evidence regarding keeping the sample in in-tact position and further depositing it in the same condition in the Forensic Science Laboratory. PW/4 Dililp Singh deposed that on 17.10.2003, Ishwar Singh, Constable brought 88 sealed packets of samples in the office of the S.P., Jalore and after getting it signed by the Superintendent of Police , Jalore on the forwarding letter he again handed over the sealed packets to Ishwar Singh for depositing it in the office of the Forensic Science Laboratory. PW/6 Ishwar Singh corroborated the statement of PW/4 Dilip Singh and further deposed that he brought 88 sealed packets of the samples in criminal case No.229/2003 to the S.P.Office , Jalore and after getting Page 20 of 24 it forwarded by the Superintendent of Police , Jalore, he brought those articles to the Forensic Science Laboratory , Jaipur and deposited it on 18.10.2003 in the sealed condition. PW/8 Durga Ram deposed that on 11.10.2003 he was posted as the Malkhana Incharge of the Police Station, Bhinmal and on the same date, the SHO, Amar Singh handed over 88 packets of the samples in intact sealed condition and that he deposited it in the malkhana of the Police Station and it remained in the sealed position with him and on 17.10.2003 he handed over those samples to Ishwar Singh, Constable, to deposit it further in the office of the Forensic Science Laboratory and after depositing it Ishwar Singh brought Ex.P/24 receipt. The learned counsel for the accused appellant while relying upon the arguments relied the following judgments:- 1.Sham Lal vs. State [1997 ( 4) Crimes 328] and Page 21 of 24 2.Jacob Lawnson vs. State [1996 (3)Crimes 223]. I have perused the judgment cited by the learned counsel for the appellant and the statement of the witnesses. The evidence of these witnesses clearly shows that the 88 samples of the poppy husks, remained in the same condition through out the investigation process and upto depositing it to the Forensic Science Laboratory and so far as the fact that the memo of the slip, which was affixed on the recovery memo and samples was not deposited in the malkhana, does not effect the reliability of these three witnesses who deposed that the malkhana articles as well as the samples remained in tact, during the course of investigation. The facts of the citations relied on by the learned counsel for the accused appellant are different from the facts of the present case. The ownership of the truck which was searched by the search party and the fact of non -presence of Page 22 of 24 the driver at the time of the search, cannot have much relevance because by the evidence of PW/2 Amar Singh , PW/9 Mohan Singh and PW/10 Dewa Ram and an independent witness PW/5 Vijay Singh it is well proved beyond doubt that at the time of the search, the accused appellant only was present in the truck and he himself informed the police regarding the contents loaded in the truck i.e. he informed that there were pipes in the truck. This goes to prove the animus on the part of the accused appellant, regarding the possession of the recovered articles. So far as the articles were found as Doda-post, in the light of report of Forensic Science Laboratory, it is not under dispute. Learned counsel for the appellant, further contended that the original telephonic information received by the investigating officer, has not been produced, therefore, entire prosecution story creates serious doubt. I have considered the arguments and perused the evidence . In my view, only on this Page 23 of 24 ground, prosecution story cannot be thrown out and the evidence adduced by the prosecution cannot be considered untrustworthy, only on this count that PW/2 Amar Singh , after recording the information on rough paper, entered it in the 'Rojnamcha' and threw away the rough paper. Resultantly, in view of the aforesaid discussions, the appeal preferred by the accused appellant Chokha Ram, s/o Vagta Ram, b/c Bishnoi is dismissed and the judgment of conviction and order of sentence passed by the learned Special Judge, NDPS Cases, Jodhpur, passed in Sessions Case No.30/2004 is maintained. The accused appellant is already in jail, therefore, the record of the learned trial court be sent forthwith, to serve the sentence as awarded by the learned trial court. (KAILASH CHANDRA JOSHI),J. l.george Page 24 of 24