Crl. Appeal No.23-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.23-SB of 1999 Date of Decision : February 14, 2008 Satpal Singh @ Satta, ....Appellant S/o Sunder Singh, R/o Nihal Singh Wala, District Moga. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Anju Arora, Advocate, Amicus Curaie, for the appellant. Mr. O.P.Dabla, AAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 18.7.1998, rendered by the Court of Addl. Sessions Judge, Faridkot, vide which it convicted the accused/appellant Satpal Singh, 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. 2. The facts, in brief, are that on 26.6.1994, Ajmer Singh, ASI, posted as S.H.O., Police Station City Moga-II, alongwith Paramjit Singh, ASI, Baldev Singh, Head Constable, and few other police officials, held a picket, on the road of Nasley Dairy of Indra Basti, near Railway Crossing, under the supervision of Shri Narinderpal Singh, Superintendent of Police, Moga. A tractor bearing registration No.PJA-3069 make Ziter came from the side of Dairy. After giving a signal, the tractor was stopped. Satpal Singh, accused, Crl. Appeal No.23-SB of 1999 2 was sitting in the trolley. He tried to run away. The tractor was being driven by Malkiat Singh. Both of them were apprehended. Their names and particulars were ascertained. 30 bags were found lying in the trolley. On checking, the same were found containing 40 Kgs. Poppy-husk each. Sample of 250 grams poppy-husk, from each of the bags, was taken out. The remaining poppy husk was kept in the same bags. The sample parcels, and the bags containing remaining poppy-husk, were converted into parcels, duly sealed with the seals bearing impressions 'AS', belonging to Ajmer Singh, ASI, and 'NS', belonging to Narinderpal Singh, Superintendent of Police. Specimen impressions of the seals Ex.P-1 and Ex.P-2 were prepared. The sample parcels, the bags containing poppy-husk, and the specimen impressions of seals, were taken into possession vide memo Ex.PD, attested by Paramjit Singh, ASI, Baldev Singh, Head Constable, and Narinder Pal Singh, Superintendent of Police. The tractor trolley was also taken into possession vide memo Ex.PG. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty and claimed usual trial. 4. During the trial of the case, Malkiat Singh, accused, died. The prosecution, in support of its case, examined Balwinder Singh, Constable, (PW-1), Raj Kumar, Clerk (PW-2), Santokh Singh, ASI (PW-3), Narinderpal Singh, S.P., Moga (PW-4), Jasbir Singh, Sub Inspector (PW-5), Bhupinder Singh, MHC (PW-6), Paramjit Singh, ASI (PW-7), and Ajmer Singh, ASI (PW-8). Thereafter, the Addl.P.P. for the State, closed the prosecution evidence. Crl. Appeal No.23-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. He, however, examined Ranjit Singh, DW-1, in his defence. 6. After hearing the Addl. P.P. 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 Satpal 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 Ajmer Singh, ASI, was the complainant, as also the Investigating Officer, which was against the provisions of law. However, it may be stated here, that in S.Jeevanantham Vs. State through Inspector of Police, T.N. (2004) 5 Supreme Court Cases, 230, a case decided by the Apex Court, it was held that if the Police Officer, who is the complainant, also conducts the investigation of the case, and it is not proved that any prejudice was caused to the accused, on account of the adoption of such a course, the accused cannot be acquitted. In this case, no evidence was led by the accused, that a prejudice was caused to him, on account of adoption of the aforesaid course, by the Investigating Officer. The Counsel for the accused/appellant, however, placed reliance on Megha Singh Vs. State of Haryana, A.I.R. 1995 S.C. 2339, to contend that the complainant could not be the Investigation Officer. The perusal of the facts of the aforesaid case, reveals that it related to the recovery of a pistol and cartridges, under the Terrorist and Disruptive Activities (Prevention) Act, 1985. In that case, the Head Constable recovered the pistol and cartridges, from the Crl. Appeal No.23-SB of 1999 4 accused, and arrested him. The formal FIR was also lodged on his complaint. In these circumstances, it was held that he being complainant, should not have proceeded with the investigation of the case. It was, however, not held that on account of this reason, the investigation was vitiated. It was further observed that such a practice should not be resorted to, so that there may not be any suspicion with regard to the fair and impartial investigation. Ultimately, the appeal of the appellant, in that case, on various grounds, was accepted. In S.Jeevanantham's case (supra) the recovery was effected from the accused, by a Police Officer, who sent the ruqa, and, thus, became the complainant. The same very Police Officer conducted the investigation. Under these circumstances, it was held that since no prejudice or bias was shown to have been caused to the accused, on account of the adoption of such a practice, by the Police Officer, the investigation, and subsequent proceedings, did not become invalid. S.Jeevanantham's case (supra) being a direct authority, the principle of law, laid down, therein, is applicable to the facts of the present case. No help, therefore, can be drawn by the Counsel for the appellant, from Megha Singh's case (supra). 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 that the accused was found in conscious possession of poppy husk. In the instant case, 30 bags of poppy husk, were recovered from the trolley. Malkiat Singh, accused, was driving the tractor, and Satpal Singh accused was sitting in the trolley, on the bags. It means, that the accused was found in possession of poppy husk, which was loaded in the trolley, being driven by Malkiat Singh (since demised). For the purpose of properly appreciating the contention, raised by the Counsel for the appellant, with regard to the conscious possession of the accused, in respect of the poppy-husk aforesaid, the provisions of Section 54 are extracted hereunder :- Crl. Appeal No.23-SB of 1999 5 “54. 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 controlled 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.” 10-A Similarly, Section 35 of the Act, raises a presumption on culpable mental state. According to Section 35, 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. According to the explanation, appended to this Section, culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. 10-B The conjoint reading of both these Sections, clearly goes to reveal that the prosecution is only required to prove, that the accused were found to be in possession of a contraband or a controlled substance. Once, it is proved by the prosecution, then the onus lies, on the accused, to prove that he was not in conscious possession of such a contraband or controlled article. 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 Crl. Appeal No.23-SB of 1999 6 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.” 11. 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. The accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas. 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, he was travelling in the trolley, how he was not aware of the contents of the trolley, and how he was not in conscious possession of 30 bags, containing poppy-husk. 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. Since, the accused was found sitting in the trolley aforesaid, wherein, 30 bags, containing 40 Kgs. poppy husk each, were found lying, which was not a small thing, it could be said that he was in conscious possession thereof. The bags containing poppy husk lying in the trolley, were visible to the accused. No evidence was led by the accused, nor anything could be brought out, during the course of the cross-examination of the prosecution Crl. Appeal No.23-SB of 1999 7 witnesses, which could go to prove that he was not in conscious possession of 30 bags, containing poppy husk. Since, the accused failed to rebut the presumption, operating under Sections 54 and 35 of the Act, his plea that he was not found in conscious possession of poppy husk, could not be said to be valid. In this view of the matter, the submission of the Counsel for the appellant, that the prosecution failed to prove that the accused was found in conscious possession of the poppy husk aforesaid, 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, at the time of the alleged recovery. It is, no doubt, true that no independent witness was joined. The recovery was not effected, in pursuance of any secret information. The police party had held a picket, when per chance the tractor trolley aforesaid came, which was stopped, and, on search, the bags containing poppy-husk, were recovered. In these circumstances, there was no time, with the Investigating Officer, to join an independent witness. The evidence of the official witnesses, cannot be disbelieved and distrusted, merely on account of their official status. 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 any serious infirmity, the same can be relied upon. In the instant case, on reappraisal, the evidence of Narinderpal Singh, Superintendent of Police (PW-4), Paramjit Singh, ASI (PW-7), and Ajmer Singh, ASI (PW-8), the Investigating Officer, has been found to be cogent, convincing, and creditworthy. Nothing could be brought out, during their cross-examination, which may go to discredit their evidence. 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 Crl. Appeal No.23-SB of 1999 8 supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:- “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.” 12-A. In Appa Bai and another Vs. State of Gujrat,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 appellants, stands rejected. 13. No other point was urged, on behalf of the parties. Crl. Appeal No.23-SB of 1999 9 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, and are liable to be upheld. 15. For the reasons recorded, hereinbefore, the instant appeal is dismissed. The judgment of conviction, and the order of sentence dated 18.7.1998, are upheld. The accused/appellant is directed to surrender to his bail bonds, for undergoing the remaining part of the sentence. February 14, 2008 (SHAM SUNDER) Vimal JUDGE