IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.1114 SB of 1999 Date of decision 27.09.2006 Ram Janam Kumar .....Appellant Versus State of Punjab ...Respondent . . . . CORAM:- HON’BLE MR.JUSTICE VIRENDER SINGH Present: Ms Vandana Malhotra, Advocate for the appellant Mr.MS Sidhu, Sr.DAG Punjab. * * * * Virender Singh, J. **** Vide impugned judgment of learned Judge Special Court, Sangrur dated 27.9.1999, appellant Ram Janam Kumar s/o Tulsi Singh resident of Bihar stands convicted under Section 15 of N.D.P.S. Act 1985 (for short the Act) and has been sentenced to undergo RI for 10 years and to pay a fine Rs.1,00,000/-, in default of payment of fine, to further undergo RI for one year. Aggrieved by the said judgment of conviction and sentence, he has preferred the instant appeal. Crl.Appeal No.1114 SB of 1999 2 Since the present appeal was filed through jail, Ms.Vandana Malhotra is assisting this court after being appointed by Punjab Legal Services Authority. In short, the case of the prosecution is that on 11.7.1996, ASI Jasbir Singh PW 3 alongwith Head- constable Om Parkash PW 4 and other police officials was going in private vehicle towards the Sheron Crossing Sunam in connection with patrolling duty and search of suspected private vehicles, and when he reached near Sitasar Temple, Hemraj (PW given up during trial) was joined in the police party. When the police party was going towards Bhawanpura through Katcha path which starts from Sunam road and had covered 1-1/2 kilometer within the limits of Sunam, the appellant was seen sitting on three gunny bags which were lying under the kikkar tree. He was apprehended by the police. In order to comply with the provision of 50 of the Act, a memo Exhibit PC was prepared by ASI Jasbir Singh asking appellant for the search to be conducted of those bags in the presence of a Gazetted Officer/Illaqa Magistrate but he reposed confidence in ASI Jasbir Singh. Consent memo was reduced into writing, singed and attested by the appellant. Contents of all the three gunny bags were poured on the ground and they were mixed. Two sample of 250 gm each from that bulk were taken out, the remainder was put in the same bags which weighed 38 kg each. The entire case property including the samples were sealed with the seal impression bearing ‘JS’. 2 Crl.Appeal No.1114 SB of 1999 3 Sample seal impression Exhibit P1 was also prepared separately. The seal after use was handed over to Hem Raj PW. The case property and the samples were taken into possession vide memo Exhibit PD attested by Head- constable Om Parkash and aforesaid witnesses. The personal search of the appellant was also conducted which lead to the recovery of one spring actuated knife from him. Ruqa Exhibit PE was sent to the police station upon which formal Exhibit PE was recorded. Rough site plan PF was prepared at the spot. On return to the police station, the appellant and the case property were produced before SHO Sampuran Singh PW 5 in order to show the compliance of Section 55 of the Act who verified the facts of the case, checked the case property and after satisfying himself affixed his seal bearing impression ‘SS’. He also put his seal on the impression and deposited the case property with Major Singh MHC, who tendered his affidavit Exhibit ‘PB’. In order to prove the link evidence, the prosecution also tendered in the evidence affidavit Exhibit ‘PA’ of the constable Rulda Singh PW 1. The chemical examination report Exhibit PG indicated that the contents sent was that of Poppy husk. Appellant was charged under Section 15 of the NDPS Act, 1985. In order to prove the charge, the prosecution has examined constable Rulda Ram PW 1, Head-constable Major Singh PW 2 who have tendered their respective affidavits ‘PA’ & ‘PB’ to prove the link evidence, ASI Jasbir Singh PW 3 3 Crl.Appeal No.1114 SB of 1999 4 and Head-constable Om Parkash PW 4 to prove the recovery at the spot. ASI Jasbir Singh is the investigating officer and investigation conducted by him is already alluded to in the preceding paras. SHO Sumpuran Singh PW 5 has been produced to prove the compliance of Section 55 of the Act. Besides this, Chemical Examination Report, Exhibit PG was also tendered into the evidence. However Hem Raj PW was given up as having been won over. The plea taken up by the appellant is of false implication asserting that he was employed as a labourer in Ply-wood factory situated on Sunam-Sangrur Road and on 7.7.1996 at about 11 p.m. when he was going on foot towards his room after completing his duty, the police picked him up and put him in lockup. Subsequently, the present case was registered against him. He states that the recovery of spring actuated knife is also planted upon him. However, no witness was produced by the appellant in defence. After appreciating the entire case of the prosecution, the appellant stands convicted and sentenced as indicated hereinabove. I have heard Ms.Vandana Malhotra counsel for the appellant and Mr.MS Sidhu, Sr.DAG, Punjab and with their assistances, I have gone through the entire record. Ms.Vandana Malhotra contends that appellant was allegedly found simply sitting on the bags 4 Crl.Appeal No.1114 SB of 1999 5 containing poppy husk. His conscious possession qua the same cannot be presumed and the prosecution agency should have investigated the case further to find out the source from where it was procured. Learned counsel then contends that the appellant was from other State and was working as a labourer. There is every possibility that he might have been engaged by his employer to carry those bags to a particular place without his having knowledge as to what was contained in those bags. The core ingredient is the conscious possession and the prosecution is failing on this material aspect. This flaw is enough to acquit the appellant. Ms. Malhotra then contends that even otherwise the prosecution is not getting any corroboration from the independent witness. The explanation for giving up Hem Raj PW as having been won over, does not appeal sound for the reason that the appellant being from other State (Bihar) could not possibly pressurise aforesaid witness. This indicates that so called independent witness (Hem Raj) was, in fact, a procured witness, and in his presence no recovery was effected, ergo, he declined to support the case of the prosecution. This weakness coupled with the aforesaid flaw dents the case of the prosecution and the appellant deserves to be acquitted. Ms. Malhotra in the alternative submitted that in the event of the conviction being maintained, the 5 Crl.Appeal No.1114 SB of 1999 6 appellant deserves a lenient tilt with regard to sentence awarded to him for default clause on account of non-payment of fine contending that he is in custody since the date of his arrest and by now he has undergone his entire substantive sentence. At present he is serving the sentence awarded to him for default clause i.e. one year. While controverting the submission advanced by Ms.Vandana Malhotra, Mr.MS Sidhu, Sr. DAG, Punjab submits that may be Hem Raj PW has been given up by the prosecution, still charge against the appellant is proved to the hilt from the testimonies of the official witnesses whose evidence is as good as that of non- official witness. The appellant has not been able to point out any discrepancy much less material which would be enough to discard the case. According to him, the plea projected by the appellant in his defence is neither here nor there. After hearing rival contentions of the either sides and going through the evidence on record, I am of the view that the prosecution has been able to bring its case beyond any shadow of doubt against the appellant and therefore, his conviction as already recorded by the trial court deserves to be maintained. Arguments advanced by Ms.Vandana Malhotra, to my mind have no force. No doubt, Hem Raj PW has not been produced by the prosecution as having been won over but the same does not affect the case of the 6 Crl.Appeal No.1114 SB of 1999 7 prosecution when it is otherwise proved from the testimony of official witnesses. I do find certain discrepancies in the statements of these witnesses but there is no material flaw in the same which would touch the core of the case so as to discard it in its totality. Certain discrepancies are bound to occur even in the statement of most truthful witness. The investigation conducted by ASI Jasbir Singh was cross checked by SHO Sampuran Singh PW 5 who verified all the facts and thereafter put his own seal on all the parcels and deposited the case property in the Malkhana. The appellant was also found in possession of a spring actuated knife when his personal search was conducted. This fact also goes against him. May be that he was from other State but there is every possibility that he might have indulged in the smuggling of the poppy husk after shifting to Sunam (Punjab). No doubt the investigating officer should have made an attempt to know the source from where the appellant had arranged the contraband but any laxity shown by the investigating officer in this regard would not be a ground to discard the case of the prosecution regarding recovery allegedly effected from the possession of the appellant. I am conscious of the legal aspect that conscious possession of the contraband is the core ingredient in such type of cases but on the basis of the evidence on record, I can safely conclude that the prosecution has been able to 7 Crl.Appeal No.1114 SB of 1999 8 prove the same beyond any shadow of reasonable doubt and the appellant on the other hand has not been able to rebut the presumption enumerated under the Act itself. His defence hangs by a very tenuous thread and does not advance his case at all. After appreciating the entire evidence on record in its right prospective, the net result now surfaces is that the prosecution has been successful in proving the conscious possession of the contraband qua the appellant and therefore, his conviction is confirmed. So far as the sentence awarded to the appellant in default of payment of fine is concerned, I am of the view that he deserves some concessional tilt. Keeping in view the totality of the facts and circumstances of the instant case, especially the fact that the appellant is in custody since long, the sentence of one year already imposed for default clause is hereby reduced to six months. Resultantly, the instant appeal stands dismissed on merits except with the modification in the sentence part particularly with regard to default clause as indicated herein above. (Virender Singh) 27.09.2006 Judge sudhir 8