Criminal Appeal No. 979-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 979-SB of 2003 Date of Decision : 03.03.2010 1. Bashir Mohammad son of Hasan Khan, r/o village Hakamwala, Distt. Bathinda. 2. Sadik Mohammad s/o Fazaldin, r/o village Hakamwala, Distt. Bathinda. ...Appellants Versus State of Punjab. ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.S. Lali, Advocate, for the appellants. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. * * * * SHAM SUNDER, J. This appeal, is directed, against the judgment of conviction, dated 17.04.03, and the order of sentence, dated 18.04.03, rendered by the Judge, Special Court, Bathinda, 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 to undergo rigorous imprisonment for a period of 10 years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to Criminal Appeal No. 979-SB of 2003 2 further undergo rigorous imprisonment for a period of two years each, for having been found in possession of 245 kgs poppy husk, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 11.02.99, Om Parkash, Assistant Sub Inspector, alongwith some other Police officials, was on patrol duty, and holding a picket, at the bridge of canal minor, in the area of village Kesar Singh Wala. At about 12.30 Noon, a three wheeler, bearing registration No. PAR-757, came from the side of village Dhilwan, which was signalled to stop, by the Police party, on the basis of suspicion. Sadik Mohammad was driving the same, whereas, Basir Mohammad, was sitting by his side. The Investigating Officer, suspected some contraband, in the bags, lying in the three wheeler, and, thus, apprised the accused, that the same was to be searched. In the meantime, one Iqbal Singh, also came there, who was joined as an independent witness. On search of the three wheeler, in the presence of Sohan Singh, Deputy Superintendent of Police, who was called to the spot, 07 bags, each containing 35 kgs poppy husk were recovered. A sample of 250 gms poppy husk, from each of the bags, was separated, and the remaining poppy husk, was kept, in the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession alongwith the three wheeler and the registration certificate of the three wheeler, vide a separate recovery memo. From the personal search of Sadik Mohammad, accused, Rs. 27/- and a driving licence, were Criminal Appeal No. 979-SB of 2003 3 recovered, whereas, from Basir Mohammad, accused, Rs. 30/-, 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. Rough site plan of the place of recovery was prepared. The accused were arrested. After the completion of investigation, they 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 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 Om Parkash, Assistant Sub Inspector (PW1), the Investigating Officer, Bhupinder Singh, Station House Officer (PW2), Sohan Singh, Deputy Superintendent of Police, Retired (PW3), a witness to the recovery, and, Dilbag Singh, Head Constable (PW4). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 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. Basir Mohammad, accused, stated that he had been falsely implicated, in the instant case. It was further stated by him, that his father Hasan Khan, had murdered Gulzar Singh, father of Saudagar Singh and Bahadar Singh, and they were Criminal Appeal No. 979-SB of 2003 4 party-men of Sh. Sikander Singh Malooka, the then Cabinet Minister. It was further stated by him that they were the anti-party of Sh. Sikander Singh Malooka. It was further stated by him that, at his instance, they were brought from their house, no 10.02.99, in the presence of Chowkidar Rajpal, Member Basant Singh, Sarpanch Nekbir and got him falsely involved, in the instant case. It was further stated by him that he was not the owner of the three wheeler. 7. Sadik Mohammad, accused, almost took up the same plea, as was taken up by Basir Mohammad, accused, in his statement, under Section 313 of the Code of Criminal Procedure. They, however, examined Nekbir Singh (DW1), and, Rajpal Singh (DW2), 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 appeal, was filed by the appellants. 10. I have heard the Counsel for the parties, and, have gone the evidence and record of the case, carefully. 11. The Counsel for the appellants, at the very outset, submitted that, though, Iqbal Singh, independent witness, was joined, yet he was not examined. No doubt, Iqbal Singh, independent witness, was joined, yet he could not be examined, as the Additional Public Prosecutor for the State, made a statement on 24.8.99, that as per the Criminal Appeal No. 979-SB of 2003 5 report on the summons, he (Iqbal Singh) had died. It was not that Iqbal Singh, independent witness, was not intentionally and deliberately examined. The submission of the counsel for the appellants is, thus, rejected. 12. It was next submitted by the Counsel for the appellants, that though the alleged recovery was effected, on 11.02.99, yet the sample parcels, were sent to the office of the Chemical Examiner, on 18.02.99, i.e. after a delay of 07 days, which remained unexplained, 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 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 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. PJ, 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 Criminal Appeal No. 979-SB of 2003 6 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 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 07 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 appellants, being without merit, must fail, and the same stands rejected. Criminal Appeal No. 979-SB of 2003 7 13. It was next submitted by the Counsel for the appellants, that the prosecution, miserably failed, to prove, that the appellants, were in conscious possession of the contraband, lying in the three-wheeler. He further submitted that, as such, the appellants, did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Seven bags, containing poppy husk, were recovered, from the three- wheeler, which was driven by Sadik Mohammad and Basir Mohammad, was sitting by his side. It was not a small quantity of poppy husk, which was lying in the three-wheeler, which could escape their notice. It was within the special means of knowledge of the accused, as to how, seven bags, containing poppy husk, were lying, in the three-wheeler; wherefrom, the same, had been loaded; to which place, the same, were being taken; and for what purpose, the same were being taken. The accused, were, thus, found in possession of and control over the bags, containing the poppy husk. They failed to furnish any explanation, on the aforesaid points. 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 :- Criminal Appeal No. 979-SB of 2003 8 "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." 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 Criminal Appeal No. 979-SB of 2003 9 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." 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 Criminal Appeal No. 979-SB of 2003 10 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 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 Criminal Appeal No. 979-SB of 2003 11 power or control. The facts of Madan Lal's and Megh Singh's cases (supra) are 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 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 on recovery memo PC, the Deputy Superintendent of Police, signed in Punjabi, whereas, the Special Report, was signed by him, in English. He further submitted that, this clearly proved, that the Deputy Superintendent of Police, was not present, at the spot, but was introduced later on, to give strength, to the case of the prosecution. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Since Sohan Singh, Deputy Superintendent of Police, knew Punjabi, as also English, if he signed one document in Punjabi and the other document in English, that did not mean, that his presence, at the time of recovery was not proved. When Sohan Singh, Deputy Superintendent of Police, appeared in the Court, he, in clear-cut terms stated, that he was called to the spot and the search of the three- Criminal Appeal No. 979-SB of 2003 12 wheeler, was conducted, in his presence, as a result whereof, seven bags, containing poppy husk, were recovered therefrom. Even the other witnesses deposed that, the Deputy Superintendent of Police, was called to the spot and came there and the search, in this case, was conducted, in his presence. There is no reason, to disbelieve the evidence of the Deputy Superintendent of Police and other witnesses, on this aspect of the matter. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 16. No other point, was urged, by the Counsel for the parties. 17. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. 18. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellants are on bail, their bail bonds, shall stand cancelled. 19. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 20. The District & Sessions Judge, is also directed to ensure Criminal Appeal No. 979-SB of 2003 13 that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 21. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 03.03.2010 (SHAM SUNDER) Amodh JUDGE