IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.502-DB of 2008 Date of Decision: 06.02.2009 Sukhdev Singh Appellant Versus State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.H.S.Grewal, Advocate for the appellant Mr.A.S.Jatana, Addl.A.G. Punjab for the respondent-State …. Jasbir Singh, J. By filing this appeal, the appellant has laid challenge to the judgment and order dated 11.4.2008, vide which, the appellant was convicted for commission of an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) and was sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.one lac with a default clause. In the judgment under challenge, the Trial Judge has noticed the following facts with regard to story of the prosecution:- “Briefly stated, the prosecution story is that on 31.3.1990 a police party headed by SHO/ SI Balbir Singh was present at Bus Stand village Achanak in connection with “Nakkabandi” Criminal Appeal No.502-DB of 2008 2 i.e. picketing when a truck No.PBA-3172 came from the side of village Saidewala. It was got stopped by SI Balbir Singh on the basis of suspicion. The driver of the truck disclosed his name as Sukhdev Singh i.e. the present accused. The person sitting alongwith him disclosed his name as Balbir Singh while another person who was sitting alongwith them disclosed his name as Darshan Singh. SI Balbir Singh told all the three accused that search of the truck is to be conducted and if they so desire then search could be conducted in the presence of some Gazetted Officer or Magistrate. All the accused, in one voice, reposed faith in SI Balbir Singh, Investigating Officer. On this, SI Balbir Singh prepared consent memo, Ex.PC, of all the three accused in this regard, which was thumb marked/ signed by the accused and attested by SI Mohinder Singh and PW Babbar Chand, a private witness. SI Balbir Singh conducted search of the truck and 100 bags containing poppy husk were recovered from it. Out of each bag, 100 grams of poppy husk was separated as sample and converted into separate parcels. On weighment, each bag containing remaining poppy husk came to 35 kilograms. All the sample parcels and the bags containing remaining poppy husk were sealed by SI Balbir Singh, Investigating Officer, with his seal bearing impression “BSK”. Sample seal chit, Ex.P1, was separately prepared and seal after use was handed over to SI Mohinder Singh. The case property was taken into possession by SI Balbir Singh, Investigating Criminal Appeal No.502-DB of 2008 3 Officer, vide recovery memo Ex.PD attested by the afore said PWs. The truck was also taken into possession by the Investigating Officer vide separate recovery memo, Ex.PE, attested by the aforesaid PWs. A ruqa, Ex.PG was drawn and sent to the Police Station through Constable Vijay Kumar on the basis of which formal FIR, Ex.PG/1, was recorded. Investigating Officer prepared rough site plan of the place of recovery, Ex.PJ, with correct marginal notes. He also recorded the statements of witnesses. Accused were arrested. SI Balbir Singh conducted personal search of all the three accused and prepared memo of their personal search, Ex.PH, thumb marked/ signed by the accused and attested by PWs. On return to the Police Station, SI Balbir Singh kept the case property in his custody. On the next day, SI Balbir Singh, Investigating Officer, handed over the accused and case property to ASI Paramjit Singh for producing in the Court of Ilaqa Magistrate. After receipt of report of Chemical Examiner, Ex.PM and completion of formal investigation, challan against the accused was presented in the Court.” On completion of investigation, final report was put in Court for trial. All the accused pleaded not guilty and claimed trial. It has come on record that during trial appellant Sukhdev Singh failed to put in appearance before the trial Court and was declared proclaimed offender. His co-accused Balbir Singh had died during pendency of the trial. Original trial proceeded only against Darshan Singh another co-accused and Criminal Appeal No.502-DB of 2008 4 vide judgment and order dated 23.9.1999, above said accused was convicted for commission of an offence under Section 15 of the Act and sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.one lac with a default clause. The appellant was subsequently arrested and he was put to trial and vide judgment under challenge, he was convicted and sentenced as found mentioned in earlier part of this order. Counsel for the appellant has vehemently contended that the appellant was not in conscious possession of the contraband alleged to have been recovered from him and his co-accused. Above said fact was not put to him when his statement was recorded under Section 313 Cr.P.C., in view of that judgment under challenge deserves to be set aside. He has further argued that, though joined investigation, the prosecution has failed to produce independent witness, which makes case of the prosecution doubtful. He has further stated that the link evidence was missing on account of which appellant deserves acquittal. During arguments, it was brought to our notice that appeal filed by a co-accused Darshan Singh against judgment and order dated 23.9.1999, under similar circumstances, was dismissed by a Division Bench of this Court on 12.9.2008. We have gone through the judgment rendered in the above said case wherein similar argument, regarding conscious possession of the contraband by the accused, was negatived by observing as under:- “Learned counsel for the accused-appellant argued that question regarding conscious possession of the quantity of poppy husk recovered from the possession of the accused was Criminal Appeal No.502-DB of 2008 5 not put to him in his statement recorded under Section 313 of the Code of Criminal Procedure and it makes the case of the prosecution doubtful, entitling the accused-appellant to acquittal. In support of this argument, she relied upon the authority reported as Raj Kumar v. State of Punjab, 2005 (1) R.C.R. (Criminal) 70. Besides some facts to be noticed hereinafter negativing this argument of the learned counsel for the appellant, we may mention here that the first question put to the appellant in his statement under Section 313 of the Code of Criminal Procedure was that on March 31, 1990, when he was apprehended, 100 bags of poppy husk were recovered from his possession; that from each bag 100 grams of poppy husk was taken a sample; and that the entire case property was taken into possession vide memo Exhibit P.C. The accused replied that it was incorrect. In Raj Kumar’s case (supra), the two appellants were traveling in a Jeep and a bag containing 8.250 kilograms of opium was lying on the seat between the appellants. Both of them were charged for possession of opium but neither of them had been asked any question in their statements recorded under Section 313 of the Code of Criminal Procedure that they were in conscious possession of opium. Under these circumstances, a Division Bench of this Court, by referring to the provisions of Section 35 and 54 of the Act, formed the view that it would be apparent that presumption of culpable mental state and Criminal Appeal No.502-DB of 2008 6 presumption of possession can be raised against accused persons but where these presumptions are raised, the accused has a right to rebut the presumptions by pleading in his defence that he has no such mental state with respect to the act charged as an offence or that he has been able to satisfactorily account for the possession. Unless this is done, the presumption under Sections 35 and 54 of the Act cannot be raised against him. There is no dispute with the proposition enunciated in Raj Kumar’s case (supra), but in this case the recovery is of 100 bags of poppy husk, each containing 35 kilograms, and the accused-appellant did not utter a word regarding his ignorance about the presence of such a huge quantity of poppy husk in the truck neither in his statement under Section 313 of the Code of Criminal Procedure nor in the form of leading any evidence in defence. The conduct of the accused-appellant, during trial, also raises a presumption against him with regard to his culpable mental state for the recovery of 100 bags of poppy husk from him. During trial, after the appellant was granted bail, he absented from Court along with his co-accused Sukhdev Singh. Their presence could lnot be secured in spite of issuance of non- bailable warrants of arrest against them. Both Sukhdev Singh and appellant Darshan Singh were declared Proclaimed Offenders, vide order dated April 17, 1995, passed by the learned Additional Sessions Judge, Bathinda. Sukhdev Singh, co-accused of the appellant, was at large till the impugned Criminal Appeal No.502-DB of 2008 7 judgment and the sentence order were passed. Accused- appellant Darshan Singh was arrested on July 12, 1998 and then supplementary challan against him was presented by the police in the trial Court on August 10, 1998. The appellant remained absconding from Court for a long period and did not have the guts to face prosecution. In the facts and circumstances of the case, the observations of this Court in Raj Kumar’s case (supra) are of no help to the appellant.” The case of the prosecution was proved by the official witnesses who have given narration of the facts under which 100 bags of poppy husk were recovered from possession of the appellant and his co-accused- Darshan Singh, whose appeal was dismissed by this Court on 12.9.2008. Darshan Singh was only a passenger, whereas, as per allegation on record, the appellant was driver on the truck, from which huge quantity of contraband was recovered. He is even placed in a tight situation, as compared to above mentioned Darshan Singh co-accused. A Division Bench of this Court, when dismissing appeal filed by Darshan Singh, has held that non-production of independent witness was not material in this case. It has also come on record that after their arrest, all the accused, along with contraband, were produced before Ilaqa Magistrate. The officer concerned noticed that seals on the bags were intact. Thereafter, the contraband along with sample parcel was deposited in Maalkhana, from where, it was sent for chemical examination and on analysis samples were found to contain poppy heads. The trial Court has further rightly held that as the contraband was recovered from a truck, the provision of Section 50 of the Act was not attracted. The Court has also Criminal Appeal No.502-DB of 2008 8 rightly held that the provisions of Section 57 of the Act are directory in nature and are only technical in nature. Non-compliance with those provisions was not of any help to the accused. In convicting the appellant, the trial Court has also looked into judgment passed against his co-accused, namely, Darshan Singh. The above said judgment has now been affirmed by a Division Bench of this Court. In view of facts mentioned above, no case is made out for interference. Dismissed. (Jasbir Singh) Judge 06.02.2009 (Jora Singh) gk Judge