Crl. Appeal No. 855-SB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 855-SB of 2001 Date of decision. 05.12.2008 Balkar Singh son of Sona Singh son of Santa Singh, resident of village Kot Mohamad Khan, Ferozepur. ....... Appellant Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. S.P.S. Sidhu, Advocate for the appellant. Mr.S.S. Bhullar, DAG, Punjab for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction dated 13.07.2001, and the order of sentence dated 14.07.2001, rendered by the Special Judge, Ferozepur, 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 Crl. Appeal No. 855-SB of 2001 2 as the 'Act' only) and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac, and in default of payment of fine, to undergo further rigorous imprisonment, for a period of one year, for having been found in possession of five bags, containing 151 Kgs 250 grams poppy husk, falling within the ambit of commercial quantity, without any permit or licence. 2. The facts, in brief, are that on 14.04.1998 Balbir Singh, Sub Inspector/Station House Officer, alongwith other Police officials, was present at village Kot Mohamad Khan, in connection with patrol duty. A secret information was received by him, that Balkar Singh, accused, was indulging in the sale of poppy husk, near the deserted house of Sarjiwan Singh, adjoining the Kotha of tube-well of Nachhattar Singh. He was also informed that if a raid was conducted, he could be apprehended, red handed. Thereafter, Balbir Singh, SI, along-with other Police officials raided the specified place, where Balkar Singh, accused, was found sitting on five bags, outside the room of tube-well, belonging to Nachhattar Singh. The accused was given an option that the search of the bags was to be conducted, and if he desired, the same could be Crl. Appeal No. 855-SB of 2001 3 conducted in the presence of a Gazetted Officer or a Magistrate. He, however, opted that the search be conducted in the presence of a Gazetted Officer. Then a wireless message was sent to Nachhattar Singh, DSP, to reach the spot. On receipt of wireless message, he reached the spot, and disclosed his identity to the accused. He also gave an option, to the accused, and consent memo was prepared. Thereafter, as per the directions of Nachhattar Singh, DSP, Balbir Singh, Sub Inspector, conducted search of the bags, aforesaid. On weighment, the same were found containing 151 Kgs 250 grams poppy husk. A sample of 250 grams poppy husk, was taken out, from each of the bags, and the remaining poppy husk was kept in the same bags. The samples and the bags, containing the remaining poppy husk, were made into separate parcels, duly sealed , and taken into possession, vide a separate recovery memo. The site plan was prepared. The statements of the witnesses were recorded. The accused was arrested. 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 Crl. Appeal No. 855-SB of 2001 4 against the accused, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Parjoban Singh, C, (PW-1), Nachhattar Singh, DSP, (PW-2), a witness to the search and seizure, Balbir Singh, Sub Inspector , (PW-3), the Investigating Officer, Sukhmander Singh, ASI, ( PW-4 ), a witness to the recovery, and Balbir Singh, SI/ Additional Station House Officer, ( PW-5 ). Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 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. It was stated by him that his father filed a writ in this Court and informatory applications to the higher authorities about his illegal detention, and illegal detention of his wife and brother Angrej Singh, against Ram Singh, Inspector, Joginder Kumar, DSP and other Police officials were sent. He further stated that the Police officials were compelling him and his father to withdraw the writs in which, they were appearing, but when they refused to do so, he was Crl. Appeal No. 855-SB of 2001 5 falsely implicated, in the instant case. He, however, did not lead any evidence in his defence. 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. 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. 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 appellant, at the very outset, vehemently, contended that the prosecution miserably failed to prove that the accused was found in conscious possession of the bags, containing poppy husk, and, as such, he did not commit an offence under Section 15 of the Act. He further submitted that the accused was allegedly sitting on the bags, in an open and accessible place, near the room of tube-well, belonging to Nachhattar Singh. He further submitted that, under these circumstances, the conscious possession of the bags, containing poppy husk, could not be attributed to the Crl. Appeal No. 855-SB of 2001 6 accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, the bags, containing poppy husk, were lying in the fields , near the tube-well room of Nachhattar Singh, yet the accused, was found sitting thereon. It was within his special means of knowledge, as to how, and, under what circumstances, he was found sitting on the bags, containing poppy husk; where-from, those bags, containing poppy husk, had been brought to that place, and where the said bags, were to be taken. It was for him, to explain the aforesaid circumstances. He, however, failed to explain the same. As such, the accused was found in possession of, and in control over the bags, containing poppy husk. Once the possession of the accused, and his control over the contraband, was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was for him, to rebut the statutory presumption, by leading cogent and convincing evidence. However, the appellant, 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 the accused was found to be in Crl. Appeal No. 855-SB of 2001 7 conscious possession of the contraband. Sections 54 and 35 of the Act read 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. 855-SB of 2001 8 9-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." 9-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 Crl. Appeal No. 855-SB of 2001 9 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.” 9-C. In Megh Singh Vs. State of Punjab, (2003) 4 RCR(Criminal) 319, on 22.2.1993, three persons were found sitting on the gunny bag, containing poppy husk. The appellant was arrested, while the other two fled. 25 bags containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession. The Crl. Appeal No. 855-SB of 2001 10 word ‘conscious’ means awareness about a particular fact. It is the state of mind, which is deliberate or intended. It was further held that possession in a given case, need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it subject to that power or control. It, therefore, could not be said that the accused was not aware of the bags, containing poppy husk. It was not a small quantity of contraband, which was concealed, and, as such, could escape the notice of the accused. 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 the bags, containing poppy husk, referred to above, by sitting on the same, outside the room of tube-well, belonging to Nachhattar Singh. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellant, that a secret information was received against the accused, that he was in possession of the bags, at a particular Crl. Appeal No. 855-SB of 2001 11 place and if raid was conducted, he could be apprehended red handed. He further submitted that the secret information was neither reduced into writing, nor sent to the Officer superior and, as such, there was complete non-compliance with the mandatory provisions of Section 42 of the Act, as a result whereof, the conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here that the recovery, in this case, was neither effected, from an enclosed place, nor from a vehicle, standing in an enclosed place, but from an open and accessible place, when the accused was found sitting on the bags, containing poppy husk. Under these circumstances, the provisions of Section 42 were not applicable. On the other hand, the provisions of the Section 43 were applicable to the instant case. The provisions of Sections 42 and 43 are extracted hereunder: “42. Power of entry, search, seizure and arrest without warrant or authorization – (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered Crl. Appeal No. 855-SB of 2001 12 in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any which any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which has reason to believe to be liable to confiscation under this Act and any document or Crl. Appeal No. 855-SB of 2001 13 other article which he has reason to believe may furnish evidence of the commission of offence under Chapter IV relating to such drug or substance : and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an offence takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.” “43. Power of seizure and arrest in public place. -- Any officer of any of the department mentioned in Section 42 may -- Crl. Appeal No. 855-SB of 2001 14 (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company. 10-B. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for seizure, in any public place, or in Crl. Appeal No. 855-SB of 2001 15 transit, any narcotic drug or psychotropic substance, in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed, whereas Section 42 of the Act empowers the officer for search and seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then provisions of Section 43 of the Act are applicable. The word 'public place' has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 10.C. A Division Bench of this Court in Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.)278 has held as under :- “Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a Crl. Appeal No. 855-SB of 2001 16 public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.” 10.D. It is well settled principle of law that the provisions of a Statute are to be construed, in harmonious manner so that none of the same is rendered nugatory. By harmonious construing the provisions Sections 42 and 43 of the Act, it can be safely concluded that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act would not be applicable. 10-E. It was held in State of Haryana Vs. Jarnail Singh and others 2004(2) RCR (Crl.) 960 (SC) as under :- “7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place Crl. Appeal No. 855-SB of 2001 17 intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.” 10-F. In the instant case, Balbir Singh, SI/SHO, had received an information, that the accused-referred to above, had been selling poppy husk near the deserted house of Sarjiwan Singh, in the fields adjoining the kotha of tube-well of Nachhattar Singh. It was, in this view of the matter, that a picket was held by Balbir Singh, Sub Inspector alongwith other Police officials. Such information was general, in nature, and not specific. The recovery was effected from the accused, at an open accessible place. The submission of the Counsel for the Crl. Appeal No. 855-SB of 2001 18 appellant, being devoid of merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellant, that Nachhattar Singh, owner of the room of tube- well, adjoining, which the bags containing poppy husk were lying, was not joined in the investigation, nor interrogated, as a result whereof, a great prejudice was caused to the accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Nachhattar Singh, owner of the tube-well, was neither joined in the investigation, nor interrogated, by the Investigating Officer. He, thus, committed an irregularity or illegality. If, on account of the irregularity or illegality, committed during the course of investigation, by the Investigating Officer, benefit of doubt is given to the accused, then every dishonest or negligent Investigating Officer, will certainly leave lacunae, in the case of the prosecution, so as to create an escape route for the accused. The Court is not to play, in the hands of the investigating Officer. If the Court comes to the conclusion, that such an illegality or irregularity was committed by the Investigating Officer, with a view to help the accused, then the same can certainly be ignored. In this case, this Court has Crl. Appeal No. 855-SB of 2001 19 reached the aforesaid conclusion. However, the liability of the accused, who was found in conscious possession of the bags, containing poppy husk, could not be diluted. No prejudice, whatsoever, was caused to the accused, on account of non- joining of the owner of the room of tube-well. The appellant, thus, committed the offence under Section 15 of the Act. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that no independent witness was joined, despite the fact that a secret information had been received. He further submitted that, as such, the case of the prosecution, became doubtful. It may be stated here, that, no doubt, a secret information was received, against the accused, yet an urgency, in the move, was involved, as there was apprehension of the accused absconding, in case, the Police party had consumed time, to summon the witnesses, from the village, It was, under these circumstances, that no independent witness could be joined. Even otherwise, there is nothing, on the record, that any independent witness was present, at the time of search and seizure, but he was not intentionally and deliberately joined, by Crl. Appeal No. 855-SB of 2001 20 the Investigating Officer. The mere fact that no independent witness, could be joined, due to the aforesaid reasons, did not mean that the evidence of the prosecution witnesses, became, in any way, doubtful. The evidence of the official witnesses, cannot be disbelieved and distrusted, merely, on account of their official status. In the face of the evidence