Crl. Appeal No.635-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.635-SB of 1999 Date of Decision : 8.9.2008 Jaswant Singh S/o Guljari Lal, ....Appellant resident of Village Tokas Pattan, District Hisar (Haryana) Versus The State of Haryana ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Avnish Mittal, Advocate, for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 22.4.1999, and the order of sentence dated 26.4.1999, rendered by the Court of Addl. Sessions Judge, Hisar, vide which it convicted the accused/appellant, for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, for having been found in possession of 7 bags, each containing 40 Kgs. Poppy-husk, without any permit or licence. Crl. Appeal No.635-SB of 1999 2 2. The facts, in brief, are that, on 24.8.1994, Raja Ram, SI, alongwith other police officials, was returning to Police Station Bhuna, after patrol duty, and when the police party reached near Raj Cinema, Bhuna, a white Maruti Car, bearing No.HR-01-2424, came from the side of New Bus Stand, at a very fast speed. The driver tried to stop the vehicle, and reversed it, on seeing the police party. However, Raja Ram, SI, with the help of other police officials, stopped the car. The driver told his name, as Jaswant Singh, whereas, the person sitting by his side, told his name as Naresh Kumar. The Investigating Officer, suspected that there was some contraband in the Car. Search of the Car, was conducted, as a result whereof, 7 bags, containing poppy-husk, were recovered. Each bag, was found containing 40 Kgs. Poppy-husk. A sample of 200 grams from each of the bags, was taken out, and the remaining poppy-husk, was kept in the same bags. The samples, and the bags, containing the remaining poppy- husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The accused were arrested. After the completion of investigation, Jaswant Singh, accused was challaned. Naresh Kumar, accused was not challaned, as he was found innocent, during the course of investigation. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Mahinder Singh, SI, (PW-1), Balwant Singh, HC (PW-2), Deva Singh, HC (PW-3), Rajpal, Constable, (PW-4), Chhaju Ram, ASI (PW-5), and Raja Ram, SI/SHO (PW-6), the Investigating Officer. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. Crl. Appeal No.635-SB of 1999 3 5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he was going in his car, to his relations at Ratia, when near the saw- mill Bhuna some bags, were thrown by some person, and the SI, directed him, that he should accompany him (SI), in his car, for chasing those persons. It was further stated by him, that he declined the request of the SI, on the ground, that he was to go to his relations at Ratia. It was further stated by him, that on account of that reason, he was falsely implicated, in the instant case. He, however, did not lead any evidence, in his defence. 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 Jaswant Singh, accused/appellant. 8. I have heard the learned 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 there was a delay of 11 days, in sending the sample parcels, to the office of the Forensic Science Laboratory. He further submitted that the delay of 11 days, in sending the samples, remained unexplained, as a result whereof, it could not be said that the samples were not tampered with, until the same reached the office of the Forensic Science Laboratory. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Forensic Science Laboratory, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Crl. Appeal No.635-SB of 1999 4 Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to indepth scrutiny, and it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Forensic Science Laboratory. Above all, there is report of the Forensic Science Laboratory, Ex.PJ, which clearly proves that the seals on the samples, were found intact, and tallied with the specimen seal, as per forwarding authority. The report of the Forensic Science Laboratory, is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay in sending the samples, to the office of the Forensic Science Laboratory, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Forensic Science Laboratory, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 11 days, in sending the samples to the office of the Forensic Science Crl. Appeal No.635-SB of 1999 5 Laboratory, did not at all matter much. In this view of the matter, 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 as per the instructions the samples were required to be sent to the Forensic Science Laboratory, within 72 hours, but in this case, the same were sent after 11 days. He further submitted that, thus, there was complete violation of the instructions, as a result whereof, the case of the prosecution became doubtful. He also placed reliance on Buta Singh Vs. State of Punjab 2006(1) RCR (Criminal) 835. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is no provision, in the Act, or the Rules, framed thereunder, that the samples should be sent to the Forensic Science Laboratory, within 72 hours, from the date of recovery. The instructions, upon which reliance, was placed by the Counsel for the appellant, do not have got the force of law. If any instructions, were issued against the provisions of law, and the Rules, framed thereunder, those, could not be taken into consideration. The facts of Buta Singh's case (supra), are distinguishable, from the facts of the present case. The appellant, in that case, was acquitted on a number of grounds, one of which was that the sample was not sent to the Forensic Science Laboratory, within 72 hours of the time of recovery. No help, therefore, can be drawn, by the Counsel for the appellant, from Buta Singh's case (supra), especially, in view of the fact that sufficient evidence was produced by the prosecution, in this case, that none tampered with the samples, until the same reached the office of the Forensic Science Laboratory. 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 no independent witness was joined, despite availability, and, as such, the case of Crl. Appeal No.635-SB of 1999 6 the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is nothing, on record, that at the time of search and seizure, any independent witness was available, at the spot, but he was not joined, intentionally, and deliberately. It was a chance recovery. No secret information had been received, against the accused, that he was coming in a car, with a big haul of poppy-husk. Joining of an independent witness, after the search and seizure, would have been of no significance, as he would not have been said to be a witness to the search and seizure. Under these circumstances, it is to be seen, as to whether, non-joining of an independent witness, in itself, was sufficient to throw away the case of the prosecution over-board. In the absence of joining of an independent witness, the evidence of the official witnesses, cannot be distrusted and disbelieved. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. The evidence of the official witnesses, was rightly found to be cogent, convincing, reliable and trustworthy, by the trial Court. The trial Court was right in placing reliance on the same, in coming to the conclusion, that the accused committed the offence, punishable, under Section 15 of the Act. This Court, after reappraisal of the evidence of the prosecution witnesses, also comes to the same conclusion. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled, that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:- Crl. Appeal No.635-SB of 1999 7 “It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” 11-A. In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves, in it. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate the accused, no doubt, is cast on the prosecution story. 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 only one sample, from each of the bags, in-stead of 2 samples, from each of the bags, which was the requirement of law, was taken, as a result whereof, the case of the prosecution, became doubtful. There is no provision of law, that at least 2 Crl. Appeal No.635-SB of 1999 8 samples, from each of the bags, of contraband, should be taken out. The object of taking the sample, is that it should be sent to the Forensic Science Laboratory, with a view to analyse the same. Since, the contents of the samples sent to the Forensic Science Laboratory, were found to be sufficient for analysis, and the said Laboratory analysed the same, as a result whereof, it came to the conclusion, that the same constituted poppy-husk, no prejudice was caused to the accused, on account of taking of one sample, from each of the bags only. The case of the prosecution also did not become doubtful, on account of this reason. In this view of the matter, 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 appellant was not found in conscious possession of the poppy-husk, referred to above. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The appellant was the driver of the car, in which 7 bags, each containing 40 kgs. Poppy-husk, were lying. It was not a small quantity of poppy-husk, which was lying in the Car. It was a big haul of poppy-husk, which was lying in the Car. It could, therefore, be not imagined that the same escaped the notice of Jaswant Singh, driver of the same. It was within the special means of knowledge of the appellant, as to how, 7 bags, each containing 40 kgs. Poppy-husk, were lying in the car, of which he was the driver, and to which destination, the same were being transported. It was, for him, to explain the circumstances aforesaid. He, however, failed to explain the same. The appellant was, thus, found in possession of, and in control over the bags, containing poppy-husk. Once the possession of the accused, in respect of the contraband is proved, then statutory presumption under Sections 54 and 35 of the Act, starts operating against him. Thereafter, it is for the accused, to rebut that statutory presumption. In the instant case, the accused, miserably failed to rebut the said presumption, either during the course of cross-examination of the Crl. Appeal No.635-SB of 1999 9 prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that he was 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 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." 13-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 Crl. Appeal No.635-SB of 1999 10 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." 13-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 Crl. Appeal No.635-SB of 1999 11 terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.” 14. 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 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, 7 bags, containing poppy-husk were found in the car, which was being driven by him. 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 his statement, under Section 313 Cr.P.C., the accused/appellant took up the plea, only of false implication. As stated above, the accused, thus, miserably failed to rebut the statutory presumption, referred to above. Thus, his conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellant, that the mandatory provisions of Section 50 of the Act, were violated by the Investigating Officer, at the time of the alleged search and seizure. He further submitted that, on account of this reason, the very investigation, and the subsequent trial, stood vitiated. The submission of the Counsel for the Crl. Appeal No.635-SB of 1999 12 appellant, in this regard, does not appear to be correct. In the instant case, the search was not effected from the person of the accused, but from the bags, which were lying in the car. Had the recovery been effected from the person of the accused, then the provisions of Section 50 of the Act, would have been attracted to the instant case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. Since, in view of the principle of law, laid down, in the aforesaid authorities, the provisions of Section 50 were not applicable, to the search, in the instant case, the trial Court was right in recording conviction and awarding sentence, to the accused. 16. No other point, was urged, by the Counsel for the parties. 17. 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, and are liable to be upheld. 18. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 22.4.1999, and the order of sentence dated 26.4.1999, are upheld. If the accused/appellant is on bail, then his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Hisar, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C. and submit Crl. Appeal No.635-SB of 1999 13 compliance report, to this Court, within a period of three months. 8.9.2008