Criminal Appeal No. 1222-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1222-SB of 2002 Date of Decision: 15.03.2010 Mohinder Singh son of Chand Singh son of Bakhshi Singh, Cultivator, resident of village Bhatalla, Tehsil Barnala, District Sangrur. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. K.L. Chaudhary, Advocate, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction and the order of sentence, dated 30.07.02, rendered by the Special Judge, Barnala, vide which, he convicted the accused, for the offence, punishable under Section 18 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced him to undergo rigorous imprisonment, for a period of 10 years, and, to pay a fine of Rs. 1 lac, and, in default of payment thereof, Criminal Appeal No. 1222-SB of 2002 2 to further undergo rigorous imprisonment, for a period of 02 years, for having been found in possession of 40 kgs 160 gms opium, without any permit or licence falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 30.06.88, Iqbal Singh, Inspector, alongwith some other Police officials, held a picket, at Thikriwala Chowk, in the area of Barnala, under the supervision of Bishan Chand, Deputy Superintendent of Police (H), Barnala. At about 4.30 AM, a car, bearing registration No. PJR-220, was seen coming from the side of village Thikriwala, which was got stopped, by Iqbal Singh, Inspector. On checking the car, a gunny bag, was found lying, on its front seat. On interrogation, the driver of the car, disclosed his name as Mohinder Singh son of Chand Singh, Jat, resident of village Bhathlan. On search of the bag, in accordance with the provisions of law, in the presence of Bishan Chand, Deputy Superintendent of Police, eight pouches, each containing 5 kgs 20 gms opium, were recovered. One sample of 20 gms, was separated from each pouch and the remaining opium, was kept, in the same pouches. The samples and the pouches, containing the remaining opium, including the bag, were converted into parcels, duly sealed, and taken into possession, alongwith the car, vide a separate recovery memo. On personal search of the accused, the currency notes of Rs. 5,000/- were recovered, which were also taken into possession. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. The site plan of the place of recovery was prepared. The statements of the witnesses were recorded. The accused, was arrested. After the Criminal Appeal No. 1222-SB of 2002 3 completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 18 of the Act, against the accused, was framed, which was read-over and explained to him, to which, he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Harinder Kumar, Constable (PW1), Labh Singh, Head Constable (PW2), Shamsher Singh, Assistant Sub Inspector (PW3), Iqbal Singh, Inspector (PW4), Investigating Officer, and, Surinder Kaur, Registration Clerk, Office of the DTO, Patiala (PW5). Thereafter, the prosecution evidence was closed. 6. 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 he was innocent. It was further stated by him, that he was a liquor vendor at village Farwahi. It was further stated by him, that he had an altercation with Shamsher Singh, prosecution witness. It was further stated by him that, he was brought, from his house, and falsely implicated, in the instant case. He, however, examined Baldev Krishan, Excise Clerk, Office of AETC, Sangrur (DW1), Dewan K.S. Puri, Document Expert, Patiala (DW2), and, Ujjagar Singh (DW3). Thereafter, he closed his defence evidence. 7. After hearing the Counsel for the parties, and, on going Criminal Appeal No. 1222-SB of 2002 4 through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by the appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that, no independent witness, despite availability, was joined, as a result whereof, the case of the prosecution, became highly doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The Police party, had not received any secret information, against the accused, that he was coming with some contraband. The Police party, had laid a picket, in connection with the checking of vehicles, when at about 4.30 AM, car make Ambassador, bearing registration No. PJR-220, came from the side of village Thikriwala, and it was stopped. It was, at that time, that the driver of the car namely Mohinder Singh, accused, was apprehended and the recovery of 40 kgs 160 gms opium, was effected, from the car. It was a chance recovery. There is nothing, on the record that, at 4.30 AM, when the accused, was apprehended and the search of the car was conducted, any independent witness, was present, and, he was not intentionally and deliberately joined, by the Police party. Even otherwise, at that odd hour, the possibility of the presence of an independent witness, could be completely ruled out. Had any witness been joined after effecting the recovery, he would not have been said to Criminal Appeal No. 1222-SB of 2002 5 be a witness to the search and seizure, and his evidence, would have been of no significance. Since no independent witness, was present, at the time of search and seizure, the question of joining him, did not at all arise. Even otherwise, the evidence of the official witnesses, cannot be distrusted and disbelieved merely, on account of their official status. In the face of the statements of the official witnesses only, the Court, is required, to scrutinize the same carefully and cautiously. If, after such scrutiny, the Court, comes to the conclusion, that the same, is cogent, convincing, reliable and trustworthy, then no reason, can be coined, to disbelieve the same. On reappraisal and reappreciation of the evidence, produced by the prosecution, this Court, has come to the conclusion, that the same, is cogent, convincing, reliable and trustworthy. The trial Court, was, thus, right in placing reliance upon the same. Non-joining of an independent witness, for the reasons recorded, at the time of search and seizure, therefore, did not at all affect the merits of the case. 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:- “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 Criminal Appeal No. 1222-SB of 2002 6 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. 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 case, 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 cases, is fully applicable to the facts of the present case. In these circumstances, on account of 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. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, Criminal Appeal No. 1222-SB of 2002 7 does not appear to be correct. In the instant case, the recovery, was not affected, from the person of the accused, but, from the car, being driven by him. The provisions of Section 50 of the Act, were, thus, not applicable 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. The submission of the Counsel for the appellants, thus, being without substance stands rejected. 13. The Counsel for the appellant, however, placed reliance, on Dilip & another Vs. State of M.P., 2007(1), RCR (Criminal), 586 (SC), in support of his contention, that, even if the recovery, was allegedly effected, from the car, the provisions of Section 50 of the Act, were required to be complied with. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In Dilip and another's case (supra), the search of scooter, was conducted, as a result whereof, the contraband was recovered. The Apex Court, held that, on account of search of the scooter, compliance with the provisions of Section 50 of the Act, was not required, but, since the personal search of the accused, was also conducted, the provisions of Section 50 of the Act were applicable. It may be stated here, that, in every case of search and seizure, may be from a vehicle or a house or a room of some enclosed place, resulting into recovery of the contraband, in the normal Criminal Appeal No. 1222-SB of 2002 8 course, the personal search of the accused is conducted. Had recovery of some contraband been effected, from the personal search of the accused, non-compliance with the provisions of Section 50 of the Act, would have certainly cast a doubt, on the prosecution story. In view of the principle of law, laid down, in State of Punjab's case (supra), decided by a Constitution Bench of the Apex Court, any principle of law, laid down, to the contrary, in Dilip and another's case (supra), decided by a two Judge Bench of the Apex Court, shall not hold the field. No help, therefore, can be drawn, by the Counsel for the appellant, from Dilip and another's case (supra). 14. It was next submitted by the Counsel for the appellant, that CFSL Form, was not prepared, at the spot, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is no requirement of law, that CFSL Form, should be prepared, at the spot, by the Investigating Officer. The CFSL Form, is required, to be sent alongwith the sample parcels, to the laboratory. In the instant case, at that time, the CFSL Form, was prepared and sent alongwith the sample parcels, to the laboratory. This fact, is evident, from the report of the Chemical Examiner exhibit PF. Since there is no requirement of law, that CFSL Form, should be prepared, at the spot, non-preparation thereof, at that time, did not at all cast any doubt, in the prosecution story. There is nothing, on the record, that any prejudice, was caused, to the accused, on account of this reason. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must Criminal Appeal No. 1222-SB of 2002 9 fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellant, that the link evidence, in this case was incomplete, in as much as, when Harinder Kumar, Retired Constable, PW1, appeared in the Court, he stated, that PY affidavit, did not bear his signatures. PY is the affidavit of Harinder Kumar, Retired Constable, whereas, PX is the affidavit of Labh Singh, Head Constable. These were duly proved, by the prosecution, by leading additional evidence, under Section 311 Cr.P.C. Both these witnesses, were also allowed to be cross-examined again, vide order dated 12.04.02, passed by this Court, in CRM No. 14510-M of 2002. Since Harinder Kumar, Retired Constable, by the time, he was further cross-examined, had retired, and, thus, had joined hands with the accused, he opted to resile from his statement. It was, under these circumstances, that the Additional Public Prosecutor, for the State, with the permission of the Court, put him such questions, as are put, during the course of cross-examination. If an official, in the rank of a Constable, who has already retired, for whatever the reasons may be, opts to side with the accused and resiles from his earlier statement, during the course of cross-examination, by him (accused), that does not mean, that the case of the prosecution stood disproved. Labh Singh, Head Constable, PW2, in his affidavit PX, testified that, he handed over the sample parcels, on 05.07.88, duly sealed alongwith the docket, to Harinder Kumar, Constable No. 263, for deposit, in the office of the Chemical Examiner. He further testified that, after depositing the case property, on 05.07.88, Harinder Kumar, Constable, gave him the Criminal Appeal No. 1222-SB of 2002 10 receipt. He further testified that none tampered with the sample parcels, till the same remained, in his custody. It is evident from the report exhibit PF of the Chemical Examiner, which is admissible, in entirety under section 293 of the Code of Criminal Procedure, 1973, that eight parcels, sealed with the seal, bearing impression 'JS', which were intact, were received, in the laboratory, on 05.07.88, and, tallied with the specimen seals sent. When the entire evidence, is taken into consideration, only one and one conclusion, that can be arrived at, is that, the link evidence was complete. The evidence of one witness i.e. Harinder Kumar, Constable, who resiled, during the course of his cross-examination, from his previous statement, could not be said to be sufficient, to decide the fate of the case. Since on an overall appreciation of the entire evidence, the link evidence, has been found to be complete, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. It was next submitted by the Counsel for the appellant, that the recovery, in this case, was allegedly effected, on 30.06.88, whereas, the sample parcels, were sent, to the office of the Chemical Examiner, on 05.07.88, and, thus, there was a delay of 05 days, which remained unexplained, and, as such, the case of the prosecution became doubtful. 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 Chemical Examiner, 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 Criminal Appeal No. 1222-SB of 2002 11 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, as stated above, 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 Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex. PF, which clearly proves that the seals on the samples, were intact, on their arrival, in the Laboratory, and tallied with the sample seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293. The delay in sending the samples, to the office of the Chemical Examiner, 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 Chemical Examiner, the matter would have been different. 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 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. It was held, in the aforesaid cases, that in the face of the other cogent, convincing, reliable, and Criminal Appeal No. 1222-SB of 2002 12 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 cases, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 05 days, in sending the samples to the office of the Chemical Examiner, 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. 17. It was next submitted by the Counsel for the appellant, that, in his statement, under Section 313 of the Code of Criminal Procedure, the accused, was not put the question, that he was found in conscious possession of the opium. It may be stated here that, in his statement, under Section 313 of the Code of Criminal Procedure, the accused, was put a specific question, that when search of the bag, which was lying, in the car, being driven by him, was conducted, eight small packets/bags, each containing 5 kgs 20 gms opium were recovered. The accused, was made aware, in his statement, under Section 313 of the Code of Criminal Procedure, that he was found in possession of the opium, referred to above. Once the possession of the accused, or his control over the contraband, was proved, then the statutory presumption, under Sections 35 and 54 of the Act, operates against him, that he was in conscious possession of the same. In his statement, under Section 313 of the Code of Criminal Procedure, only the incriminating circumstances, appearing against the accused, in the Criminal Appeal No. 1222-SB of 2002 13 prosecution evidence, are required to be put to him. He is not required to be put, either the provisions of law, or the statutory presumption, operating against him, under the provisions of law, in his statement, under Section 313 of the Code of Criminal Procedure. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 18. It was next submitted by the Counsel for the appellant, that the appellant, was not found, in conscious possession of the opium, and, as such, no offence, punishable under Section 18 of the Act, was committed by him. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The appellant, was the sole occupant of the car, as he was driving the same. A bag was lying therein, on the front seat, which contained eight small packets. In each small packet 5 kgs 20 gms opium was found. The appellants, thus, was in possession of and in control over the bag, containing opium. It was for him, to explain, as to wherefrom, that bag, containing opium, was brought; how the same was found lying, on the front seat of his car; where the same was being taken; and for what purpose. He did not furnish any explanation, in this regard. Once his possession, was proved, as stated above, statutory presumption under Sections 35 and 54 of the Act, operated against them, that he was in conscious possession thereof. It was for him, to rebut the statutory presumption, by leading cogent and convincing evidence. He, however, failed to lead any evidence, to rebut the statutory presumption. As such, he was in conscious possession of the contraband. Section 54 of the Act ibid Criminal Appeal No. 1222-SB of 2002 14 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." 19. 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. Criminal Appeal No. 1222-SB of 2002 15 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." 20. 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