Criminal Appeal No. 196-SB of 2002 1 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 196-SB of 2002 Date of Decision: 17.05.2010 Ram Piara son of Hajara Ram son of Puran Chand, aged 35 years, Labourer, resident of village Soeta, P.S. Rahon, Distt. Nawanshahr. ... Appellant Versus State of Punjab. ...Respondent Criminal Appeal No. 345-SB of 2002 Date of Decision:17.05.2010 Santokh Ram alias Sokhi son of Lehmber Ram son of Kartara, aged 25 years, Labourer, resident of village Langroya, P.S. Sadar, Nawanshahr. ... Appellant Versus State of Punjab. ...Respondent Criminal Appeal No. 1109-SB of 2002 Date of Decision:17.05.2010 Dyal son of Karam Chand son of Puran Chand, aged 35 years, Labourer, resident of village Soeta, P.S. Rahon, Distt. Nawanshahr. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.S. Kathuria, Advocate, for the appellants, in all the appeals. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. Criminal Appeal No. 196-SB of 2002 2 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 SHAM SUNDER, J. * * * * This judgement shall dispose of Criminal Appeal No. 196-SB of 2002, filed by Ram Piara, appellant, Criminal Appeal No. 345-SB of 2002, filed by Santokh Ram alias Sokhi, appellant, and, Criminal Appeal No. 1109-SB of 2002, filed by Dyal, appellant, against the judgment of conviction and the order of sentence, dated 07.01.02, rendered by the Judge, Special Court, Nawanshahr, vide which, he convicted the accused (now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced them as under:- Names of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 (i) Santokh Ram @ Sokhi (ii) (iii) Ram Piara Dyal Under Section 15 of the Act. 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, to further undergo rigorous imprisonment, for a period of 01 year, for having been found in possession of 07 bags, each containing 40 kgs of poppy husk, without any permit or licence, falling within the ambit of commercial quantity. To undergo rigorous imprisonment, for a period of 04 years each, and, to pay a fine of Rs. 10,000/- each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 06 months each, for having been found in possession of 01 bag, each containing 40 kgs of poppy husk, without any permit or licence, falling within the ambit of non- commercial quantity. Criminal Appeal No. 196-SB of 2002 3 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 2. The facts, in brief, are that, on 26.05.96, Parsa Ram, Inspector/Station House Officer, alongwith Parveen Kumar, Sub Inspector, Surinder Singh, Constable, Telu Ram and some other Police officials, was on patrol duty, at bus stand Rahon, where, at about 4.00 AM, a secret information, was received, that Ram Piara, Santokh Ram and Dyal, accused, were present, in the ground of village Sehbazpur, where, they were indulging in the sale of poppy husk. Relying upon the secret information, the Police party, proceeded towards the pre-disclosed place. On the way, one Bhupinder Singh, met the Police party, who was associated, as a public witness. Thereafter, a raid, was conducted, by the Police party, at the place, where the accused were found present. Ram Piara, and, Dyal, accused, were found carrying a gunny bag each, on their heads, whereas, Santokh Ram @ Sokhi, accused, was found sitting on seven gunny bags. On seeing the Police party, Ram Piara and Dyal, accused, threw their respective gunny bags, and succeeded in running away. However, Santokh Ram @ Sokhi, accused, was overpowered, on suspicion. Thereafter, Paras Ram, Inspector/Station House Officer, apprised the accused, that he suspected some contraband, in nine gunny bags, and, wanted to search the same. Consequently, on search of the same, in the presence of Kuldip Singh, Deputy Superintendent of Police, who was called to the spot, each bag was found containing 40 kgs poppy husk. A sample of 250 gms, from each bag, was separated, and the remaining poppy husk, was kept therein. The samples and the bags, containing the Criminal Appeal No. 196-SB of 2002 4 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. The statements of the witnesses were recorded. 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. Santokh Ram @ Sokhi, accused, was arrested. Ram Piara and Dyal, accused, were also arrested later on. After the completion of investigation, they were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. After the case, was received, by commitment, in the Court of Sessions, charge under Section 15 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 Karnail Singh, Head Constable (PW1), Tarsem Lal, Assistant Sub Inspector (PW2), Parsa Singh, Inspector (PW3), Investigating Officer, Jagdish Singh, Constable (PW4), Parveen Kumar, Sub Inspector (PW5), Kuldip Singh, Deputy Superintendent of Police (PW6), a witness to the recovery, and, Surinder Singh, Head Constable (PW7). Bhupinder Singh, prosecution 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 Criminal Appeal No. 196-SB of 2002 5 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 incriminating circumstances, appearing against them, in the prosecution evidence. It was stated by them that, no recovery, was effected, from them, and, they had been falsely implicated, in the instant case. They, however, did not lead any evidence, in defence, and closed the same. 7. 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. 8. Feeling aggrieved, the instant appeals, have been filed by the appellants. 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 Ram Piara, appellant, in Criminal Appeal No. 196-SB of 2002, and, Dyal, appellant, in Criminal Appeal No. 1109-SB of 2002, submitted that, the prosecution, miserably failed, to prove their identity, beyond a reasonable doubt, by leading cogent and convincing evidence, and, as such, they were not connected with the alleged commission of crime. The submission of the Counsel for Ram Piara and Dyal, appellants, in this regard, appears to be correct. As per the prosecution story, Ram Piara and Dyal, accused, after throwing a bag each, being carried by them, on their heads, ran away, whereas, Santokh Ram @ Sokhi, accused, was apprehended, at the spot. The alleged recovery, was effected, at about 4.00 AM, in the early morning. Surinder Singh, Head Constable, PW7, no doubt, stated that, he knew Ram Piara and Dyal, accused, earlier, and, therefore, he identified Criminal Appeal No. 196-SB of 2002 6 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 them. During the course of his cross-examination, Parveen Kumar, Sub Inspector, PW5, also stated, that it was Surinder Singh, Head Constable, who identified Ram Piara and Dyal, accused, while running away. Parsa Singh, Inspector, PW3, stated that, he knew Ram Piara and Dyal, accused, earlier, and, thus, he identified them. During the course of his cross-examination, Parsa Ram, Inspector, PW3, stated that, when Ram Piara, ran away, the Police party, was at a distance of 3-4 karams. He further stated that, Ram Piara and Dyal, accused, belonged to village Sahota, which is at a distance of 1 km, from the place of recovery. He did not state even a single word, as to how, he knew Ram Piara and Dyal, accused, earlier to the alleged recovery. He did not state, even a single word, that he had registered cases, against them, earlier to the present recovery, and that was why, he identified them, at the spot. He did not state, even a single word, in his statement, that both these accused, were witnesses, in some other cases, which had been investigated by him. He did not state, even a single word, that these accused, used to come, to the Police Station, in connection with the work of other villagers, and that was why, he knew them. There was no source of light, at the site, when both these accused, allegedly ran away, from the spot. No identification parade, whatsoever, was held, by Parsa Singh, Inspector, PW3, during the course of investigation, to pin-point the identity of the accused. Both these accused, were arrested much later. Surinder Singh, Head Constable, PW7, during the course of his cross-examination, stated that, he did not Criminal Appeal No. 196-SB of 2002 7 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 remember, if he ever appeared, as a witness, against Dyal, accused. He further stated that, he had not attended any social function, which was attended by Dyal, accused. He further stated that, in no other case, he had claimed, that he knew Dyal, accused. He further stated that, he got recorded, in his statement, under Section 161 of the Code of Criminal Procedure, that he knew Dyal, accused, when he was raiding his house. When his attention, was drawn, to his statement, under Section 161 of the Code of Criminal Procedure, this fact, was not found recorded therein. He further stated that, he got recorded, in his statement, under Section 161 of the Code of Criminal Procedure, that he had been raiding the house of Dyal, accused. When his attention, was drawn, to his statement, under Section 161 of the Code of Criminal Procedure, this fact, was not found recorded therein. He further stated that, he did not remember the case number, in which, the house of Ram Piara, accused, was raided by him. He further stated that, he also did not remember the month and the year, in which, the said raid, was conducted. He further stated that he did not raid the house of Ram Piara, accused of his own. He further stated that he always joined the Investigating Officer, at the time of raiding the house of Ram Piara, but, he did not remember the name of the said Investigating Officer. He further stated that, he did not remember, as to whether, any entry, was made, in the Roznamcha, before leaving the Police Station, alongwith the Investigating Officer, while allegedly raiding the house of Ram Piara, in another case. He further stated that, he did not remember, as to Criminal Appeal No. 196-SB of 2002 8 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 whether, he ever appeared, as a witness, against the accused, nor did he remember, that he was associated, in investigation, in another case, against the accused. He further stated that, no identification parade of the accused, was conducted, to pin-point the identity of Ram Piara and Dyal (accused). The cumulative reading of the statements of Parsa Singh, Inspector, PW3, and, Surinder Singh, Head Constable, PW7, clearly goes, to show, that Ram Piara and Dyal, accused, were not known to any member of the Police party. There was no possibility of the identification of both these accused, by any member of the Police party, especially when, there was complete darkness, as the alleged recovery, was effected, at about 4.00 AM, and, there was no source of light, at the spot. It was, therefore, a fit case, in which, the identification parade, was required, to be held, by the Investigating Officer, to pin-point the identity of the accused, but, he failed to do so. Under these circumstances, the identity of both these accused, as perpetrators of crime, was not at all established, beyond a reasonable doubt, by the prosecution, by producing cogent, convincing and reliable evidence. No reliance, can be placed, on the statements of Parsa Singh, Inspector, PW3, Parveen Kumar, Sub Inspector, PW5, and, Surinder Singh, Head Constable, PW7, with regard to the identification of the accused, at the spot, for the reasons recorded above. It was held in Budhsen and Another Vs. State of U.P., AIR 1970 SC, 1321, that facts which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive Criminal Appeal No. 196-SB of 2002 9 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 evidence of a witness is a statement made in the Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, the witness came to pick out the particular accused person, and the details of the part, which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses, in the Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held, during the course of investigation, with the primary object of enabling the witnesses, to identify persons, concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony, in the Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and they make statements, either express or implied, that certain Criminal Appeal No. 196-SB of 2002 10 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 individuals whom they point out are persons, whom they recognize, as having been concerned in the crime. The same do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :- “Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they happened to see him. The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice.” The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the identity of Ram Criminal Appeal No. 196-SB of 2002 11 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 Piara and Dyal, accused, as perpetrators of crime, was not proved, they are not connected with the instant case. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction and awarding sentence to the accused. 11. It was next submitted by the Counsel for Ram Piara and Dyal, accused, that they were not in conscious possession of poppy husk, and, as such, they did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for Ram Piara and Dyal, appellants, in this regard, appears to be correct. Since the identity of Ram Piara and Dyal, accused, was not established, by the prosecution, beyond a reasonable doubt, it could not be said, that they were carrying a bag each containing poppy husk, on their heads. Thus, both these accused, were not found in possession of the poppy husk. Once, it was not proved, that both these accused, were not found in possession of poppy husk, statutory presumption, under Sections 35 and 54 of the Act, did not operate against them, that they were in conscious possession thereof. The submission of the Counsel for Ram Piara and Dyal, accused, to the effect, that they were not in conscious possession of the poppy husk, therefore, being correct, is accepted. 12. Now coming to the case of Santokh Ram, accused, it may be stated here, that it was proved, from the statement of Parsa Singh, Inspector, PW3, Parveen Kumar, Sub Inspector, PW5, and, Surinder Singh, Head Constable, PW7, that Santokh Ram, accused, was found Criminal Appeal No. 196-SB of 2002 12 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 sitting on seven gunny bags. On search of the same, each bag was found containing 40 kgs poppy husk. Similarly, on search of two bags, which were allegedly thrown, by Ram Piara and Dyal, accused, each was found containing 40 kgs poppy husk. Since Santokh Ram, was found sitting, on seven bags, each containing 40 kgs poppy husk, he could be said to be in possession of and in control over the same. It was within his special means of knowledge, as to wherefrom, these bags, were brought, to that place; where the same, were to be taken; and for what purpose. He did not furnish any explanation, on the aforesaid aspects of the matter. Once Santokh Ram, was found in possession of seven gunny bags, each containing 40 kgs poppy husk, statutory presumption, under Sections 35 and 54 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was for him, to rebut that statutory presumption. He, however, failed to rebut the same, by leading evidence. 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 Criminal Appeal No. 196-SB of 2002 13 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 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." 12-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 its existence is established by a preponderance of probability." 12-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 Criminal Appeal No. 196-SB of 2002 14 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 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.” 13. 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 Criminal Appeal No. 196-SB of 2002 15 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 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,