Crl. Appeal No. 107-DB of 2000 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No. 107-DB of 2000 Date of Decision:12.02.2009 Bahadur Singh son of Babu Singh, resident of village Singhpura, Police Station Thanesar, District Kurukshetra. .... Appellant Versus The State of Haryana .... Respondent ---- CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. S.S. Dinarpur, Advocate for the appellant. Mr.H.S. Sran, Additional Advocate General,Haryana for the respondent-State. **** SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 07.02.2000 and the order of sentence dated 14.02.2000, rendered by the Presiding Officer, Special Court, Kurukshetra, vide which he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the Crl. Appeal No. 107-DB of 2000 --2-- 'Act' only) and sentenced him to undergo RI for a period of 12 years and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo further rigorous imprisonment for a period of three years, for having been found in possession of six bags each containing 32 Kgs poppy husk, without any permit or licence. 2. The facts, in brief, are that on 02.12.1995 Gian Singh, Inspector, alongwith other Police officials was on patrol duty, at the turning of Bhawani Khera on Thanesar-Jhansa road. A secret information was received by him to the effect that Bahadur Singh son of Babu Singh, resident of Singhpura, was selling poppy- husk, in his house, and the same could be recovered, in case, a raid was conducted. In the meanwhile Sukhdev Singh son of Sampuran Singh, independent witness, reached there. He was joined with the Police party. Thereafter, the Police party raided the house of Bahadur Singh. Bahadur Singh was found present there. He was apprehended and interrogated. He made a disclosure statement that he had concealed six bags in a room, underneath the wheat chaff, which was locked and key thereof was with him, of which he only knew, and could Crl. Appeal No. 107-DB of 2000 --3-- get the same, recovered, by pointing out. Disclosure statement Ex.PG was reduced into writing, which was thumb marked by the accused, and attested by the witnesses. Thereafter, Gian Singh, Inspector sent a message to the Deputy Superintendent of Police, Kurukshetra, to reach the spot. On receipt of the message, the Deputy Superintendent of Police, Kurukshetra, reached the spot. In the presence of the Deputy Superintendent of Police, Kurukshetra, the accused led the Police party to the room aforesaid, and opened the lock thereof with a key, in his possession, and got recovered six bags, each containing 32 Kgs poppy- husk, from underneath the wheat chaff. Two samples of 500 grams from each of the bags, were taken out. The remaining poppy-husk was put into the same bags. The samples and the bags, containing the remaining poppy- husk, were converted into separate parcels, duly sealed with the seals bearing impressions “GS” and “RSB” and taken into possession, vide a separate recovery memo Ex.PD, attested by the witnesses. Ruqa Ex.PB was sent to the Police Station, on the basis whereof, the FIR Ex.PB/1 was registered. The site plan was prepared, with correct marginal notes. The statements of the Crl. Appeal No. 107-DB of 2000 --4-- witnesses were recorded. After the completion of investigation, the challan was presented. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Ashok Kumar, Head Constable, (PW-1), who tendered into evidence his affidavit Ex.PA, Simru Ram, Assistant Sub Inspector, ( PW-2 ), who recorded the formal FIR Ex.PB/1, on receipt of ruqa Ex.PB, Bal Kishan, Constable, (PW-3), who tendered into evidence his affidavit Ex.PC, Ram Singh, Deputy Superintendent of Police, ( PW-4 ), a witness to the recovery, Sukhdev Singh, (PW-5), an independent witness to the recovery, and Gian Singh, Inspector,(PW-6), who conducted the raid, recorded the disclosure statement of the accused, and effected recovery of the aforesaid contraband. Thereafter, the Public Prosecutor for the State, tendered the report, Ex.PJ, of the Assistant Chemical Examiner and closed the prosecution evidence. Crl. Appeal No. 107-DB of 2000 --5-- 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. 5-A. In his defence, the accused examined Rajesh Kumar, Ahlmad, DW-1, Ram Niwas, Record keeper, DW-2 and Faquir Chand, Ahlmad, DW-3. Thereafter, the accused closed his defence evidence. 6. After hearing the 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. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant. 8. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, submitted that the Investigating Officer, completely transgressed the mandatory provisions of Crl. Appeal No. 107-DB of 2000 --6-- Section 42 of the Act, in as much as, he neither reduced into writing the secret information received by him, nor sent the same to the official superior. He further submitted that, on account of violation of the mandatory provisions of Section 42 of the Act, a serious prejudice, was caused to the accused, but the trial Court, failed to take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is proved, from the evidence, on record, that a secret information was received by Gian Singh, Inspector, Investigating Officer at a distance of 2-2-1/2 Kms from the place of recovery. Urgency was, therefore, involved in the move. The first and foremost concern of the Investigating Officer, was to raid the place, which had been disclosed by the secret informer, so as to apprehend the accused and effect the recovery of poppy-husk, from him. Under these circumstances, had the Investigating Officer, consumed time, in reducing into writing, the secret information, and sending the same to the official superior, the chances of leakage of the same, as also escape of the accused, thereby defeating the very purpose of the raid, would not Crl. Appeal No. 107-DB of 2000 --7-- have been ruled out. It was under these circumstances, that the secret information could neither be reduced into writing, nor sent to the official superior immediately, on receipt thereof. However, it may be stated here, that as soon as, the Investigating Officer, reached the spot, he sent a VT message to the official superior i.e. the Deputy Superintendent of Police, Kurukshetra to reach the spot. Not only this, the report Ex.PE, regarding recovery was also sent from the spot. Ruqa, containing all the facts and circumstances, of the case, was also sent to the Police Station, from the spot, immediately after the recovery, on the basis whereof, the FIR was registered, and copies thereof, were sent to the Illaqa Magistrate, as also to the higher Police Officers. There was, therefore, substantial compliance with the provisions of Section 42 of the Act. No prejudice was shown to have been caused, to the accused, on account of non-reduction of secret information and non-sending of the same to the official superior, immediately after the receipt thereof. In Sajan Abraham Vs. State of Kerala (2001) 6 Supreme Court Cases 692, a case decided by Crl. Appeal No. 107-DB of 2000 --8-- a three Judge Bench of the Apex Court, in somewhat similar circumstances, it was held by the Apex Court, that substantial compliance with the provisions of Section 42 would be sufficient, and the strict compliance should not be insisted upon. The Apex Court observed as under: “In construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the filed of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The court however while construing such provisions strictly should not interpret them so literally so as to render their compliance, impossible. However, Crl. Appeal No. 107-DB of 2000 --9-- before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out.” 9-A. The principle of law, laid down, in the aforesaid case, is fully applicable to the instant case. Since, it has been held above, that there was substantial compliance with the provisions of Section 42 of the Act, and no prejudice, whatsoever, occasioned to the accused, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellant, that the prosecution failed to prove beyond reasonable doubt, that the accused was found in conscious possession of six bags, containing poppy husk, and as such, he did not commit any offence punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated Crl. Appeal No. 107-DB of 2000 --10-- here, that, as soon as, the secret information was received, by the Investigating Officer, he went to the spot, where the accused was found present. The accused was apprehended. He made a disclosure statement that he had concealed six bags, containing 32 Kgs poppy-husk each, in a room, underneath the wheat chaff, which was locked by him, and the key thereof, was with him, of which he only knew, and could get the same recovered, by pointing out. It means that the accused was having exclusive knowledge and possession of the bags, containing poppy-husk, lying underneath the wheat chaff in the room aforesaid. He opened the lock of that room with key, which was in his possession. Once the possession of and control over the bags, containing poppy-husk, in relation to the accused, was established, then statutory presumption under Sections 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, the onus shifted on to him, to prove that he was not in conscious possession thereof. Thereafter, it was for him, to rebut the presumption, by leading cogent and convincing evidence. However, the appellant failed to rebut the presumption aforesaid, either during the Crl. Appeal No. 107-DB of 2000 --11-- course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that the accused was in conscious possession of the contraband. Sections 54 and 35 of the Act ibid reads as under :- Section 54 of the Act: "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 Crl. Appeal No. 107-DB of 2000 --12-- 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." 10-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." Crl. Appeal No. 107-DB of 2000 --13-- 10-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 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.” 10-C. No plea was taken up by the accused that the room in which the contraband was concealed did not belong to him, but to some other person. He also did Crl. Appeal No. 107-DB of 2000 --14-- not take up the plea that somebody else had kept the contraband, in the room, but he was only assigned the duty of keeping a watch over the same. The accused, thus, miserably failed to rebut the statutory presumption. Keeping in view the principle of law, laid down, in the aforesaid cases, the provisions of Sections 35 and 54 of the Act, and the evidence produced, on record, the trial Court, in my opinion, was right in coming to the conclusion, that the accused was found in conscious possession of poppy husk. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellant that the statement of Ram Singh, Deputy Superintendent of Police, under Section 161 of the Code of Criminal Procedure, was not recorded by the Investigating Officer, as a result whereof, the accused was deprived of shattering the veracity of this witness by confronting him with his previous statement, as a result whereof a serious prejudice was caused to him. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Gian Singh, Inspector,(Investigating Officer)when appeared as, PW-6, Crl. Appeal No. 107-DB of 2000 --15-- in clear-cut terms, stated that he recorded the statement of Ram Singh, Deputy Superintendent of Police, on 17.05.1996 , under Section 161 of the Code of Criminal Procedure. The submission of the Counsel for the appellant, to the effect, that the statement of Ram Singh, Deputy Superintendent of Police, was not recorded, therefore, is not borne out from the record. Under these circumstances, no prejudice, whatsoever, was caused to the accused. He could properly cross-examine the Deputy Superintendent of Police, by confronting him, with his previous statement. Even otherwise, it is evident that Ram Singh, Deputy Superintendent of Police was thoroughly cross-examined . The cross-examination of Ram Singh, Deputy Superintendent of Police runs into as many as four typed pages. The submission of the Counsel for the appellant, thus,being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that the samples were sent to the office of the Forensic Science Laboratory, after a delay of nine days, without any explanation, as a result whereof, the possibility of tampering with the same, until the same reached the Laboratory, could not be ruled out. The Crl. Appeal No. 107-DB of 2000 --16-- submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that there was delay, in sending the samples, to the office of the Forensic Science Laboratory, in itself, could not be said to be sufficient, to come to the conclusion, that the same were tampered with, until the same reached the Laboratory. In the absence of un-explained delay, the Court is required to take into consideration, the other evidence, produced by the prosecution, to come to the conclusion, as to whether, there was any possibility of tampering with the samples, until the same reached the office of the Forensic Science Laboratory or not. Gian Singh, Inspector, PW-6, in clear-cut terms stated that he deposited the case property and the sample parcels with seals intact in the malkhana. Ex.PA is the affidavit of Ashok Kumar, Moharrir Head Constable. He in clear cut terms stated that on 02.12.1995 Gian Singh, Inspector deposited with him six bags, containing poppy husk and 12 samples, duly sealed alongwith the sample seals. He further testified that on 04.12.1995, after taking out the case property, he deposited the same in the strong room. He further testified that on 11.12.1995, he handed over six parcels of poppy husk, duly sealed, with the seal Crl. Appeal No. 107-DB of 2000 --17-- alongwith sample seals to Balkishan, Constable, who after deposit of the same, in the office of the Forensic Science Laboratory, handed over the deposit receipt to him. He further testified that neither he tampered with the case property, and the sample parcels, nor he allowed anybody to tamper with the same. Balkishan, Constable, tendered his affidavit Ex.PC, wherein it was stated by him that he was handed over on 11.12.1995 six sample parcels, duly sealed alongwith the sample seals and he deposited the same in the office of the Forensic Science Laboratory with seals intact and handed over the receipt of deposit thereof, to the Moharrir Head Constable. He further testified that neither he tampered with the same, nor he allowed anybody to tamper the same, till the same remained in his custody. Even, there is report of the Forensic Science Laboratory Ex.PJ, which clearly proves that the seals on the exhibit were intact, on arrival, till the time of its analysis, and agreed with the specimen impression of the seals. The report, referred to above, is per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge to the report of the Forensic Science Laboratory, in this case. The other evidence, produced by the prosecution to prove the Crl. Appeal No. 107-DB of 2000 --18-- link evidence was, thus, cogent, convincing, reliable and trustworthy. From the other evidence, it was proved, that none tampered with the samples, until the same reached the office of the Forensic Science Laboratory. 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 Forensic Science Laboratory, the submission of the Counsel for the appellant, 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. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant, that the seal, after use, was handed over to Ram Udit, Assistant Sub Inspector and not to Sukhdev Singh, independent witness, who was with the Police party. He further submitted that the seal remained with the Police officials and, as such, the possibility of Crl. Appeal No. 107-DB of 2000 --19-- tampering with the sample parcels, until the same reached the office of the Laboratory, could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here, that on the date on which the recovery was effected, the case property and the sample parcels were deposited with the Moharrir Head Constable, by Gian Singh, Inspector. Under these circumstances, it could not be said that the case property, the sample parcels and the seal remained with one and the same official. However, it has been held above that none tampered with the sample parcels, until the same reached the Laboratory. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, later on, was not produced, as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score alone. It was further held, in this case, that it Crl. Appeal No. 107-DB of 2000 --20-- was not incumbent upon the Police Officer, to hand over the seal, to a third person forthwith, and even, in cases, where he had done so, it was not obligatory upon him, to produce such person, as a witness, during trial, as there is no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. From the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, the completion of link evidence was proved. In this view of the matter, the submission of the Counsel for the appellant, being without substance, is rejected. 14. It was next submitted by the Counsel for the appellant, that the evidence of Sukhdev Singh, independent witness, could not be said to be reliable, as he belongs to some other village, as also a number of criminal cases, were pending against him. The mere fact that Sukhdev Singh, independent witness, belongs to another village, did not mean that his evidence could not be said to be credible. The mere fact that some criminal cases were pending, against Sukhdev Singh, independent witness, in which according to