Criminal Appeal No. 699-SB of 2004 1 Criminal Appeal No. 750-SB of 2004 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 699-SB of 2004 Date of Decision: 21.04.2010 Balwinder Sinngh son of Amrik Singh son of Gurbachan Singh, r/o Kothi Kattan, P.S. Hariana, District Hoshiarpur. ... Appellant Versus State of Punjab. ...Respondent Criminal Appeal No. 750-SB of 2004 Date of Decision: 21.04.2010 Didar Singh son of Mohinder Singh son of Darshan Singh, r/o village Churhowal, Tehsil and District Jalandhar. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sunil Chadha, Advocate, for the appellants, in both the appeals. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This judgement shall dispose of Criminal Appeal No. Criminal Appeal No. 699-SB of 2004 2 Criminal Appeal No. 750-SB of 2004 699-SB of 2004, filed by Balwinder Singh, appellant, and, Criminal Appeal No. 750-SB of 2004, filed by Didar Singh, appellant, against the judgment of conviction and the order of sentence, dated 25.02.04, rendered by the Judge, Special Court, Patiala, vide which, he convicted the accused (now appellants), 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 them to undergo Rigorous Imprisonment, for a period of ten years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year each, for having been found in possession of 5 kgs opium, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 18.09.99, Bhupinder Singh, Sub Inspector, alongwith some other Police officials, was holding a picket, near Nishan Dhaba, on G.T. Road, Rajpura, when a truck bearing registration No. PB-10Q-9981, was seen coming, from the side of Ambala. The truck was signalled to stop. The truck was being driven by Balwinder Singh, accused, whereas, Didar Singh, accused, was sitting by his side. Both the occupants of the truck, tried to slip away, after locking the same, but were overpowered, on suspicion. In the meanwhile, one Kaur Singh, came to the spot, and was joined in the Police party. Thereafter, Bhupinder Singh, Sub-Inspector, apprised the accused, that he suspected some contraband, in the truck, and wanted to search the same. Consequently, on search of truck, in the presence of Criminal Appeal No. 699-SB of 2004 3 Criminal Appeal No. 750-SB of 2004 Bhupinderjit Singh Virk, Deputy Superintendent of Police, who was called to the spot, besides a big haul of marble, a marble pitcher, lying on the back of the driver seat, containing 5 kgs opium, wrapped in a glazed paper, was recovered. Two samples of 50 gms each, were separated therefrom, and the remaining opium, was kept, in the same pitcher, wrapped in the glazed paper. The samples and the pitcher, containing the remaining opium, were converted into parcels, duly sealed, and taken into possession alongwith the truck, vide a separate recovery memo. The personal search of Balwinder Singh, accused, led to the recovery of Rs. 1250/-, whereas, on personal search of Didar Singh, accused, Rs. 750/- and mobile phone, were recovered, which were also taken into possession. The accused were arrested. Site plan of the place of recovery was prepared. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. 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. 4. Charge under Section 18 of the Act, was framed, against the accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Amarjit Singh, Sub Inspector/Station House Officer (PW1), Narinder Singh, Assistant Sub Inspector (PW2), Bhupinderjit Singh Virk, Criminal Appeal No. 699-SB of 2004 4 Criminal Appeal No. 750-SB of 2004 Superintendent of Police (at the relevant Deputy Superintendent of Police) (PW3), witness to the recovery, Sukhdarshan Singh, Assistant Sub Inspector (PW4), Bhupinder Singh, Sub Inspector (PW5), Investigating Officer, Satwinder Singh, Constable (PW6), and, Dr. L.S. Rana (PW7). Kaur Singh, independent witness, was given up, as having been won over by the accused. Thereafter, the prosecution evidence was closed. 6. 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. Balwinder Singh, accused, stated that, a false case, had been planted upon him. It was further stated by him that, he had been taken, from his village, on 10.09.99. It was further stated by him that, earlier a false case FIR No. 220, dated 12.09.99, Police Station Rajpura, was foisted upon him, and, no proceedings, were initiated, therein. It was further stated by him that after due deliberations and consultations, the Police, foisted a false case against him. It was further stated by him that, he had not done any illegal act against the society. It was further stated by him that, due on account of party faction and enmity with the local Police, he had been falsely implicated, in the instant case. It was further stated by him that, he had no concern with the alleged recovery of opium. 7. Didar Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, almost took up the similar pleas, as Criminal Appeal No. 699-SB of 2004 5 Criminal Appeal No. 750-SB of 2004 were taken up by Balwinder Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure. The accused, however, examined Harinder Singh, Head Constable (DW1), in their defence. Thereafter, they closed their defence evidence. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 9. Feeling aggrieved, the instant appeals, have been filed by the appellants. 10. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellants, at the very outset, submitted that, though, Kaur Singh, independent witness, was joined, at the time of the alleged recovery, yet, he was not examined, and, on the other hand, was given up, by the prosecution, as a result whereof, its case became highly doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. There is, no dispute, about the factum, that Kaur Singh, independent witness, was joined, but, he was given up, as won over by the accused, on the request of the Police, by the Additional Public Prosecutor, for the State. It means that, this witness, was given up, by the Additional Public Prosecutor, for the State, after being satisfied, that he had actually been won over. The Additional Public Prosecutor, for the State, is the master of the case. It is for him, to decide, as to which witness, he wants to Criminal Appeal No. 699-SB of 2004 6 Criminal Appeal No. 750-SB of 2004 examine, and which witness, he does not want to examine. Since Kaur Singh, independent witness, had been won over by the accused, there was no necessity of examining him, as the Additional Public Prosecutor, for the State, very well knew that, if he examined Kaur Singh, independent witness, he would cause damage, to the case of the prosecution. The discretion, exercised by the Additional Public Prosecutor, for the State, in giving up Kaur Singh, could not be said to be arbitrary or capricious. On the other hand, the decision, taken by the Additional Public Prosecutor, for the State, could be said to be bonafide. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material, or even if, it is known that he/she has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference could be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Criminal Appeal No. 699-SB of 2004 7 Criminal Appeal No. 750-SB of 2004 Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly 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 it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's 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 said cases, is fully applicable to the facts of the present case. Even otherwise, the other evidence produced by the prosecution is reliable. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellants, that joint statement of both the accused, giving them an option, as to whether, they wanted the search of the truck, to be conducted, in the presence of a Gazetted Officer or a Magistrate, was not recorded. He further submitted that, such a course, adopted by the Investigating Officer, was illegal, and, thus, there was complete violation of the Criminal Appeal No. 699-SB of 2004 8 Criminal Appeal No. 750-SB of 2004 mandatory provisions of Section 50 of the Act, resulting into vitiation of trial, conviction and sentence. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The provisions of Section 50 of the Act, were not applicable, to the instant case. The recovery, in this case, was not effected, from the person of the accused, but, from the pitcher, which was lying, in the truck. The pitcher, contained 5 kgs opium. 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. It was next submitted by the Counsel for the appellants, that it was not proved, by the prosecution, that the appellants, were in conscious possession of the opium, and, as such, they did not commit any offence, punishable under Section 18 of the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Balwinder Singh, accused, was driving the truck, bearing registration No. PB-10Q-9981, whereas, Didar Singh, accused, was sitting by his side. When the truck was signalled to stop, it stopped, and the accused started running, after locking the same, but, were apprehended, after giving them hot chase. In case, there was no Criminal Appeal No. 699-SB of 2004 9 Criminal Appeal No. 750-SB of 2004 contraband, in the truck, then what prompted the accused, to run away, after locking the same. The conduct of the accused, immediately after the truck, was stopped, on signal, being given, by the Police party, clearly showed, that they had guilty conscience. Not only this, even the pitcher, containing 5 kgs opium, was lying, on the back side of the driver. Only Balwinder Singh, driver, and, Didar Singh, were the occupants of the truck. It could not be said, that they were not aware of the contents of the same. It was within the special means of their knowledge, as to wherefrom, the pitcher, containing opium, was placed, in the truck; where the same, was to be taken; and for what purpose. No explanation, on this aspect of the matter, was furnished, by the appellants. The appellants, were, thus, found in possession of and in control over the pitcher, containing 5 kgs opium. Once their possession, was proved, statutory presumption under Sections 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. It was for them, to rebut the statutory presumption, by leading cogent and convincing evidence. They, however, failed to lead any evidence, to rebut the statutory presumption. As such, 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 Criminal Appeal No. 699-SB of 2004 10 Criminal Appeal No. 750-SB of 2004 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 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 Criminal Appeal No. 699-SB of 2004 11 Criminal Appeal No. 750-SB of 2004 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 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 Criminal Appeal No. 699-SB of 2004 12 Criminal Appeal No. 750-SB of 2004 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 Megh Singh Vs. State of Punjab, 2003 (4) RCR (Criminal) 319, on 22.2.1993, three persons were found sitting, on the gunny bags, containing poppy husk. The appellant was arrested, while the other two fled. 25 bags containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession. The word ‘conscious’ means awareness about a particular fact. It is the state of mind, which is deliberate or intended. It was further held that possession, in a given case, need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it subject to that power or control. The facts of Madan Lal's case (supra) are almost similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal's and Megh Singh's cases (supra) is fully applicable to the facts of the present case. In the instant case, in Criminal Appeal No. 699-SB of 2004 13 Criminal Appeal No. 750-SB of 2004 their statements, under Section 313 Cr.P.C., the accused/appellants, took up the plea of false implication. As stated above, the accused 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. 15. It was next submitted by the Counsel for the appellants that, as per the prosecution story, two samples of 50 gms each, were taken, but, the sample, which was sent, to the office of the Chemical Examiner, contained only 10 gms substance. He further submitted that, no explanation, was furnished, in this regard, and, as such, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The perusal of the report of the Chemical Examiner, clearly goes, to show, that there is an interpolation of digit 5 against column 7. Digit 5 appears to have been converted into digit 1, so as to make 50 gms as 10 gms. At what stage, such an interpolation, was made, is not known. However, on the other hand, it is evident, from the evidence, produced on the record, that two samples of 50 gms each, were taken out, and, the same, were sent, to the office of the Chemical Examiner. It is also evident, from the affidavit of Satwinder Singh, Constable, that the sample parcel, contained 50 gms opium, which was handed over, to him, and, he deposited the same, in the office of the Chemical Examiner. Even if, it is assumed, for the sake of arguments, that one Criminal Appeal No. 699-SB of 2004 14 Criminal Appeal No. 750-SB of 2004 sample parcel contained 10 gms opium, that hardly mattered, especially, in view of the other cogent and convincing evidence, produced on record, that none tampered with the sample parcel, until the same reached the office of the Chemical Examiner. The contents of the sample parcel, which was sent, to the office of the Chemical Examiner, were found, to be sufficient, for analysis. After analysis, the Chemical Examiner, came to the conclusion, that it was opium. This fact, therefore, does not cast any doubt, on the prosecution story. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 16. It was next submitted by the Counsel for the appellants, that, though, the alleged recovery, was effected, on 18.09.99, yet, the sample, was sent to the office of the Chemical Examiner, on 24.09.99 i.e. after a delay of about 06 days, without any explanation and, as such, the possibility of tampering with the same could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that delay, in sending the sample parcel, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcel was tampered with, at any stage. In such circumstances, the 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, Criminal Appeal No. 699-SB of 2004 15 Criminal Appeal No. 750-SB of 2004 convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcel, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, exhibit PM, which clearly proves that the seals on the sample, were intact, on its 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 sample, 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 parcel, 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