Crl. Appeal No. 86-SB of 1994 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 86-SB of 1994 Date of decision. 31.07.2008 1. Balwinder Singh son of Balwant Singh, 30 years, r/o Mukandpur, Police Station Dehlon, District Ludhiana. 2. Darshan Singh son of Sardara Singh, resident of Tal Ghanaur, District Sangrur. ....... appellants Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipin Ghai, Senior Advocate with Mr. Deepak Garg, Advocate for the appellants. Mr. S.S. Bhullar, DAG, Punjab for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 11.02.1994, rendered by the Court of Additional Sessions Judge, Patiala, vide which it convicted the accused (now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs and Crl. Appeal No. 86-SB of 1994 2 Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced them to undergo RI for a period of 10 years each and to pay a fine of Rs. 1 lac. each, in default of payment of fine to undergo further rigorous imprisonment, for a period of two years each, for having been found in possession of 110 bags, each containing 41 Kgs poppy husk, without any permit or licence. 2. The facts, in brief, are that on 03.08.1988 Dalip Singh, Station House Officer, Police Station Gobindgarh along with Jagroop Singh, Sub Inspector, and other police officials, was present at Amloh road Chowk Turan. Jaswant Singh son of Chanan Singh, r/o Kukar Majra happened to meet them at that place. The Police Party was talking to him, when Truck No. DIL- 781 came from the side of Mandi Gobindgarh. It was signalled to stop. The driver of the truck tried to accelerate the speed of the same. The police party, however, got stopped the truck. The driver and one more person, were made to alight from the truck. The driver told his name as Balwinder Singh, whereas, the other person told his name as Darshan Singh. Darshan Singh was the cleaner of the truck. Search of the truck was conducted, in accordance with the provisions of law. 110 bags, each containing 41 Kgs of poppy husk, were recovered from the truck. A sample of 250 grams of poppy husk, was taken out, from each of the bags. Crl. Appeal No. 86-SB of 1994 3 Thereafter, the contents of the samples were put into small packets and the remaining poppy husk was kept in the same bags. The bags, and the samples, were converted into parcels, duly sealed, and taken into possession, along with the truck, vide a separate recovery memo. The ruqa was sent to the Police Station, on the basis whereof the FIR was recorded. The site plan was prepared. The accused were arrested. The Statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Paramjit Singh, ASI, (PW-1), and Dalip Singh, DSP, (PW-2), Thereafter, the Additional Public Prosecutor for the State, tendered into evidence the affidavits Ex.PH and Ex.PA of Gurdial Singh, ASI and Om Parkash, Constable, respectively. He also tendered into evidence Ex.PP and Ex.PF/1 the reports of the Chemical Examiner and Ex.PF/1 sample impression of the seal. Jaswant Singh, independent witness was given up as won over. Thereafter, the Addl. P.P for the State, closed the prosecution evidence. Crl. Appeal No. 86-SB of 1994 4 5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Accused Balwinder Singh, however, stated that the Investigating Officer was inimically disposed towards Paramjit Singh, Transporter of Delhi, who had failed to render some favour to him. It was further stated by him that when the truck came, in the area of Police Station Gobindgarh, where the Investigating Officer was posted, the same was impounded by him. He further stated that he was not having any connection, with the said contraband. 5-A. Dalip Singh, accused, in his statement under Section 313 Cr.P.C. stated that the real offenders, from whom the recovery of contraband was effected, were let off, by the police, for some extraneous reasons. The accused, however, did not lead any evidence, in their defence and closed the same. 6. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. Crl. Appeal No. 86-SB of 1994 5 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 appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellants, at the very outset submitted that the prosecution miserably failed to prove that the accused were in conscious possession of poppy-husk. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. One accused was driving the truck, and the other was sitting by his side. Both of them were apprehended, at the spot. 110 bags containing 41 Kgs. poppy-husk each, were recovered from the truck. There was no other occupant, in the truck, except the accused. It was not a small quantity of poppy-husk, which was being transported in the truck. It was a huge quantity of poppy-husk, which was being transported in the truck. It, therefore, could not be said that the same escaped the notice of the accused. They were, thus, aware of the presence of the bags, containing poppy husk, lying in the truck. The accused were, thus, found in possession of, and in control over the bags, containing poppy-husk, lying in the truck. Once the possession of the Crl. Appeal No. 86-SB of 1994 6 accused, and their control over the contraband, was proved, then statutory presumption under Sections 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut the presumption, by leading cogent and convincing evidence. However, the appellants failed to rebut that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that they were in conscious possession of the contraband. Section 54 of the Act ibid reads as under :- "Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:- a) any narcotic drug or psychotropic substance or controlled substance; b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controller substance; or Crl. Appeal No. 86-SB of 1994 7 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." 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." Crl. Appeal No. 86-SB of 1994 8 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 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. The facts of Madan Lal’s case (supra) in brief, were that accused Manjit Singh was driving the Car and the remaining four accused, were sitting therein. One steel container (dolu) in a black coloured bag, was recovered from the said Car, which contained 820 gms. charas. All the accused were convicted and sentenced by the trial Court, holding that Crl. Appeal No. 86-SB of 1994 9 they were found in conscious possession of charas, despite the fact, that one of the accused, admitted his conscious possession, of the contraband. The Apex Court held that the trial Court was right in coming to the conclusion, that the accused were found in conscious possession of charas, as they had failed to explain, as to how they were travelling in a Car together, which was not a public vehicle. The Apex Court upheld the conviction and sentence awarded to the accused. In the instant case, the accused failed to explain, as to how, 110 bags of poppy-husk were found in the truck, which was being driven by one of them. The facts of Madan Lal's case (supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal's case (supra) is fully applicable to the facts of the present case. In the instant case, in their statements, under Section 313 Cr.P.C., the accused took up the plea, only of false implication. They did not take up the plea that they were not aware of the contents of the bags, lying in the truck. The driver of the truck, did not take up the plea, that he was directed by the owner, to take the bags, to a certain place, and obeying his command, he was taking the same, to that destination. The other accused, did not take up the plea, that he merely took a lift, in the truck, as he knew the driver thereof, and did not know, as to what was Crl. Appeal No. 86-SB of 1994 10 contained in the bags. As stated above, the accused, thus, miserably failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants, that though the alleged recovery, was effected, in this case on 03.08.1988, yet the samples were sent to the office of the Chemical Examiner on 30.08.1988 i.e. after the delay of twenty seven days. He further submitted that there was no explanation, with regard to delay in sending the samples to the office of the Chemical Examiner. He further submitted that, under these circumstances, the possibility of tampering with the samples, until the same reached the office of the Chemical Examiner, could not be ruled out. It is, no doubt, true that there is no explanation, with regard to delay. However, mere delay, in itself, is not sufficient to come to the conclusion that the sample parcels were tampered with, until the same reached the office of the Chemical Examiner. The other evidence, produced by the prosecution, on scrutiny has been found to be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved that none tampered with the samples, Crl. Appeal No. 86-SB of 1994 11 until the same reached the office of the Chemical Examiner. Even there are reports of the Chemical Examiner Ex.PP and Ex.PF, which clearly prove that the seals on the exhibits were intact, on arrival, till the time of their analysis and agreed with the specimen impression of the seals sent. The reports Ex.PP and Ex.PF of the Chemical Examiner are per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge to the reports of the Chemical Examiner, in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received in the office of the Chemical Examiner, the submission of the Counsel for the appellants, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. Crl. Appeal No. 86-SB of 1994 12 12. It was next submitted by the Counsel for the appellants, that the link evidence, in the instant case, was totally incomplete, as the affidavits of formal witnesses namely Gurdial Singh, ASI and Om Parkash, Constable, were only tendered into the evidence, by the Additional Public Prosecutor, for the State and they were never produced in the Court, during the course of trial, for their cross-examination, by the accused. He further submitted that, as such, the valuable and indefeasible right of the accused to cross-examine these witnesses, stood vitiated. He further submitted that these affidavits, therefore, could not be taken into consideration, to prove the link evidence. He further submitted that this flaw in the prosecution evidence, was sufficient to throw away the case of the prosecution, but the trial Court, did not take into consideration this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction and awarding sentence to the accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The affidavits Ex.PA and Ex.PH of the formal witnesses, could be tendered into evidence, in view of the provisions of Section 296 of the Code of Criminal Procedure. The prosecution or the accused, could move an application under Section 296 (2) of the Code of Criminal Procedure, for the purpose of Crl. Appeal No. 86-SB of 1994 13 examination or cross-examination of the witnesses. In State of Punjab v. Naib Singh 2001 Crl. L.J. 4659 (SC) , it was held that the evidence, as to the role played by some of the Police Officials in forwarding the sample to the Chemical Examiner, being of formal nature, can be taken by way of tendering affidavits, as per the provisions of Section 296 Cr.P.C.. It was further held that conviction cannot be set aside on the ground, that the evidence was given on affidavit, and no opportunity to cross-examine the deponent was given, as in view of the provisions of Section 296 (2) Cr.P.C., the accused can move an application for summoning such a witness for cross-examination. In the instant case, no application was moved by the accused for cross-examination of the formal witnesses. The principle of law, laid down, in the aforesaid authority, is fully applicable to the instant case. Under these circumstances, by no stretch of imagination, it could be said that these affidavits, could not be read into evidence, to prove the link evidence. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 13. No other point, was urged, by the Counsel for the parties. Crl. Appeal No. 86-SB of 1994 14 14. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld. 15. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, dated 11.02.1994 are upheld. If the appellants are on bail, their bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure and send the compliance report within three months from the date of receipt of a copy of the judgment. 16. No specific order was passed by the trial Court, regarding the confiscation or otherwise of the truck. The trial Court is directed to initiate proceedings, regarding confiscation of the truck, in question, if already not initiated, as envisaged under Sections 60(3) and 63 of the Act, and submit the compliance report within a period of three months, from the date of receipt of a copy of the judgment. (SHAM SUNDER) July 31, 2008 JUDGE dinesh