Criminal Appeal No. 986-SB of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 986-SB of 2006 Date of decision : September 23, 2011 Sarwan Singh ....Appellant versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Deepak Sabharwal, Advocate for appellant Sarwan Singh and as Amicus-curiae for appellant Jaswinder Singh Mr. HPS Ishar, Advocate, for appellant Gurnam Singh Ms. Gagan Mohini, Assistant Advocate General, Punjab L.N. Mittal, J. (Oral) By this common judgment, I am disposing of three criminal appeals i.e. Criminal Appeal No. 986-SB of 2006 filed by convict Sarwan Singh, Criminal Appeal No. 662-SB of 2006 filed by convict Jaswinder Singh and Criminal Appeal No. 239-SB of 2007 filed by convict Gurnam Singh because all these appeals have arisen out of a single case. All the three appellants stand convicted and sentenced by learned Judge, Special Criminal Appeal No. 986-SB of 2006 -2- Court, Jalandhar vide judgment and order dated 7.3.2006 under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) to undergo rigorous imprisonment for ten years each and to pay fine of Rs one lac each and in default thereof, to undergo further rigorous imprisonment for one and half years. Prosecution case is that on 23.8.2002, police party headed by ASI Pritam Singh was holding naka on main road leading from Sangowal to Beetla. A Tata-407 vehicle No. PB-08-AE-3516 came from the side of Sangowal and was signalled to stop by the police party. Accused Jaswinder Singh was driving the said vehicle whereas remaining two accused Gurnam Singh and Sarwan Singh were sitting on bags in body of the vehicle. Effort was made to join public witnesses but none joined. All the three accused were informed that the vehicle was to be searched on suspicion of some contraband substance and asked whether they wanted the search to be conducted in the presence of some gazetted officer or Magistrate. The accused expressed desire to be searched by some gazetted officer of police. Wireless message was given to Deputy Superintendent of Police (DSP), Nakodar. Accordingly after some time, DSP Rajjit Singh reached the spot. SI/SHO Harbhajan Singh also reached there. The DSP again asked the three accused if they wanted the vehicle to be searched by him. The accused replied in affirmative. Thereupon the vehicle was searched and four gunny bags containing poppy husk were recovered. Out of each gunny bag sample of poppy husk weighing 250 grams was separated. Remaining Criminal Appeal No. 986-SB of 2006 -3- poppy husk in each bag was found to be 39.750 kilograms. Thus, in all there was 160 kgs of poppy husk. The samples and the gunny bags with remaining poppy husk were sealed with seal bearing impression RS belonging to DSP. After use, the seal was retained by DSP. The samples and the gunny bags of remaining poppy husk were seized by the police along with aforesaid vehicle. Ruqa was sent to Police Station where on its basis, FIR was registered. Investigation was conducted by ASI Pritam Singh. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. All the three accused were arrested. The samples on analysis by Deputy Chemical Examiner were found to be of poppy husk. Accordingly on completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of all the three accused under section 15 of the Act. Charge under section 15 of the Act was framed against the accused. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined six witnesses. Charanjit Kaur, Junior Assistant, PW1 proved duplicate registration certificate of the aforesaid vehicle registered in the name of one Bal Kishan. SI Harbhajan Singh, PW2, ASI Pritam Singh, PW5 and DSP Rajjit Singh, PW6 broadly stated according to the prosecution version. ASI Pritam Singh also stated about investigation of the case conducted by him. HC Lakhbir Singh, PW3 and Constable Balwinder Singh, PW4 Criminal Appeal No. 986-SB of 2006 -4- being formal witnesses tendered their affidavits in evidence to depict that the case property was not tampered with. The accused in their examination under section 313 Cr.P.C. simply denied the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. In defence, the accused examined two witnesses. Jasbir Singh, Dispatch Clerk, DW1 and Mangat Ram, Constable, DW2 proved entries regarding preparation of docket for sending samples to Chemical Examiner and regarding deposit of the case property in malkhana. Learned Judge, Special Court, Jalandhar vide impugned judgment and order dated 7.3.2006 convicted all the three accused under section 15 of the Act and sentenced them as already noticed hereinbefore. Feeling dissatisfied, all the three convicts have preferred instant separate criminal appeals. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellants contended that no independent witness was joined to witness the search and recovery although according to ASI Pritam Singh, public persons were passing from there and were, thus, available. It was also contended that conscious possession of contraband poppy husk with the accused is not proved. In this regard, it was also pointed out that none of the accused is owner of the vehicle from Criminal Appeal No. 986-SB of 2006 -5- which contraband substance was allegedly recovered. It was also submitted that Gurnam Singh and Sarwan Singh were not even driving the vehicle even as per prosecution version. It was also emphasized that there has been delay of 46 days in sending the samples to the Chemical Examiner and said delay having not been explained, the accused are entitled to acquittal. Reliance in support of this contention has been placed on three judgments of this Court namely Kundan Singh vs. The State of Haryana, 2008(3) AICLR 518 ; Daljit Singh vs. The State of Haryana, 2008(3) AICLR 565 and Amarjit Singh vs. State of Punjab, 2011(2) RCR (Criminal) 471. It was also submitted that there is contradiction in the statements of the three material witnesses regarding time. SI Harbhajan Singh PW2 stated that he received the message at 3.00 PM and reached the spot at 3.30 PM. ASI Pritam Singh PW5 stated that the accused were apprehended at about 3.45 PM and the DSP reached the spot after about half an hour. He stated that he had not given wireless message to SHO Harbhajan Singh. He had given message to DSP. Rajjit Singh, DSP, PW6 stated that he received wireless message at 4.00 PM and he reached the spot at 4.30 PM. It was next argued that seal after use was retained by DSP himself. It was also submitted that ASI Pritam Singh PW5 could not tell from where the scales and weights were brought by the constable and who was owner thereof. It was submitted that ASI Pritam Singh has not stated as to who was the driver of the vehicle. It was also contended that accused Sarwan Singh and Gurnam Singh had only taken lift in the vehicle. Reference was also made Criminal Appeal No. 986-SB of 2006 -6- to testimony of Mangat Ram Constable, DW2 to contend that there was some cutting in the entry regarding deposit of case property and there is chit pasted on the name of the accused in register no. 19. It was also argued that ASI Pritam Singh did not affix his own seal on the samples and the remaining case property. On the other hand, learned State counsel contended that all the prosecution witnesses have supported prosecution case. SI Harbhajan Singh, PW2, ASI Pritam Singh, PW5 and DSP Rajjit Singh, PW6 have stated about recovery of the contraband poppy husk from the accused. It was also submitted that there is complete chain of link evidence to depict that there was no tampering with the samples or the remaining case property. Reference in this regard was made to affidavits of examination- in-chief of HC Lakhbir Singh, PW3 and Constable Balwinder Singh, PW4 and also to report of Chemical Examiner certifying that seals on the sample parcels were intact and tallied with the specimen seal impression. It was also argued that it is mentioned in the FIR itself and has also been stated by ASI Pritam Singh that effort was made to join independent witnesses, but nobody was ready to join. In this context, it was also submitted that there is no reason to discard the statements of the official witnesses. Learned State counsel also canvassed that there is presumption of conscious possession of contraband poppy husk with the accused. In this regard, it was also submitted that one of the accused was driving the vehicle whereas the other two were sitting on the bags of poppy husk. Criminal Appeal No. 986-SB of 2006 -7- I have carefully considered the rival contentions. All the prosecution witnesses have fully supported prosecution case. Their statements could not impeached in their cross-examination. No suggestion was put to them as to whey they would implicate the accused in false case or would depose falsely against them. The prosecution witnesses were not hostile to the accused in any manner nor they had any enmity, illwill, malice or motive against them so as to implicate them in a false case. Even the accused in their statements under sections 313 Cr.P.C. have pleaded no reason for their false implication. There is, thus, no reason to discard the sworn statements of SI Harbhajan Singh, PW2, ASI Pritam Singh, PW5 and DSP, Rajjit Singh, PW6. Their statements cannot be doubted or thrown away merely because of their official status or garb when they had no reason to implicate the accused in false case or to depose falsely against them. In addition to it, it was mentioned in the FIR itself and also stated by ASI Pritam Singh that effort was made to join public persons but they refused. Consequently, prosecution case cannot be discarded on the ground that no independent witness was joined. Aforesaid three official witnesses are also just like independent witnesses when they had not motive to implicate the accused in false case. As regards conscious possession, it was mentioned in the FIR that accused Jaswinder Singh was driving the vehicle and the remaining two accused were sitting on the bags of poppy husk. Of course, in the witness box, ASI Pritam Singh, PW5 has not stated so specifically. Criminal Appeal No. 986-SB of 2006 -8- However, he proved the FIR got lodged by him wherein this fact has been mentioned. All the three accused were travelling in the vehicle from which the contraband poppy husk was recovered. Consequently, their conscious possession can be presumed in view of section 35 of the Act. In this view, I am supported by two judgments of the Hon'ble Supreme Court in State of Punjab vs. Lakhwinder Singh, 2010(2) Law Herald (SC) 1447 and Dharam Pal Singh vs. State of Punjab, 2010(9) SCC 608. In the case of Lakhwinder Singh (supra), the accused were sitting on the bags of poppy husk whereas in the case of Dharam Pal (supra), opium was recovered from dicky of car. Presumption of conscious possession of the accused over the contraband substance was drawn in those cases. Thus, in the instant case also, presumption of conscious possession of the accused for the contraband poppy husk can be raised even under section 35 of the Act. The said presumption has not been rebutted. As regards contention on behalf of appellants Sarwan Singh and Gurnam Singh that they had taken lift in the vehicle and were not in possession of the contraband poppy husk, this contention is completely untenable. No such suggestion was even put to prosecution witnesses in their cross-examination nor it was so alleged by these accused in their statements under section 313 Cr.P.C. nor there is any material on record in support of the aforesaid contention. As regards delay in sending samples to the Chemical Examiner, mere delay, in the absence of any other circumstance, would not be fatal to Criminal Appeal No. 986-SB of 2006 -9- the prosecution case. In this regard, reference with advantage may be made to judgments of Hon'ble Supreme Court in the case of Lakhwinder Singh (supra) and in the case of Hardip Singh vs. State of Punjab, (2008) 8 SCC 557. In the case of Hardip Singh (supra), there was delay of 40 days in sending the sample to Chemical Examiner. It was held that delay itself is not fatal to prosecution case. In addition to it, the prosecution has led complete link evidence to depict that the samples and the remaining case property were not tampered with. There are affidavits of HC Lakhbir Singh, PW3 and Constable Balwinder Singh, PW4 in this regard. There is also report of Chemical Examiner depicting that the sample parcels were not tampered with and seals thereof were intact and tallied with specimen seal impression when received by the Chemical Examiner. There being complete link evidence to depict that there was no tampering with the samples or remaining case property, mere delay in sending the sample parcels to the Chemical Examiner would not be sufficient to acquit the accused. In this context, it may be added that the prosecution witnesses were not even cross-examined regarding the said delay. As regards contradiction regarding time as stated by SI Harbhajan Singh, PW2, ASI Pritam Singh, PW5 and DSP Rajjit Singh, PW6, suffice to mention that the said contradiction is very minor and insignificant. Such minor contradiction is very natural because the witnesses could not be expected to remember the exact time. Here it would Criminal Appeal No. 986-SB of 2006 -10- not be out of place to notice that SI Harbhajan Singh was examined on 23.2.2004 i.e. 1½ years after the occurrence, ASI Pritam Singh was examined on 31.1.2005 i.e. almost 2½ after the occurrence and DSP Rajjit Singh was examined on 10.10.2005 i.e. more than three years of the occurrence. On account of expiry of such long period, the minor contradiction regarding time further pales into insignificance. The contention that the seal was retained by the DSP himself does not cause any dent in the prosecution case. DSP Rajjit Singh was the senior most senior police officer at the spot. The case property was deposited with MHC in malkhana. Consequently, it was appropriate that the seal remained with the DSP instead of being handed over to any subordinate police official. At the risk of repetition, it may be highlighted that there is complete link evidence to depict that the case property was not tampered with. The fact that ASI Pritam Singh did not affix his own seal on the case property including the sample parcels would not make any difference when seal of the senior officer i.e. DSP was affixed thereon. ASI Pritam Singh has stated that he sent Constable Gurdev Singh to fetch weights and scales. Consequently, ASI Pritam Singh could not know from where the Constable brought the scales and the weights. There is no infirmity in the testimony of ASI Pritam Singh in this regard. As regards cutting in the entry in register no. 19, the same was not put to HC Lakhbir Singh PW3 who had made the said entry. It was he Criminal Appeal No. 986-SB of 2006 -11- who could have explained the same. Without confronting the said witness with the entry, the accused cannot derive any capital or advantage out of it. He had to be given opportunity to explain the same but it was not done. For the reasons aforesaid, I find that the prosecution has led sufficient, cogent and credible evidence to bring home the charge against all the three accused beyond reasonable doubt. Accordingly, the impugned judgment of conviction is affirmed. As regards quantum of sentence, minimum sentence prescribed by section 15 of the Act for the offence has been imposed by the trial Judge, the quantity of poppy husk being commercial one. Consequently, the sentence does not warrant any reduction. However, as prayed for by counsel for the appellants, sentence of imprisonment in default of payment of fine is reduced to rigorous imprisonment for one year instead of rigorous imprisonment for one and half years. As a necessary consequence of the discussion aforesaid, I find no merit in these appeals and accordingly all the three appeals are dismissed except modification regarding sentence of imprisonment in default of payment of fine. Accused Sarwan Singh and Jaswinder Singh who are on bail shall surrender to their bail bonds or shall be arrested to undergo the remaining sentence whereas accused Gurnam Singh continues to be in custody and shall undergo the remaining sentence. ( L.N. Mittal ) Criminal Appeal No. 986-SB of 2006 -12- September 23, 2011 Judge 'dalbir'