Crl.Appeal No.879-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.879-SB of 2000 Date of Decision:September 08, 2008 1. Madan Lal son of Mulla Ram, r/o Masteeli ( Rajasthan) 2. Om Parkash son of Ganpat Ram, r/o 24 STG Near Peelibanga. .... Appellants Versus The State of Haryana .... Respondent 2. Crl. Appeal No. 1119-SB of 2000 Gola alias Kuldeep son of Baldev Singh, r/o Taruna. ... Appellant. Versus The State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. D.N. Ganeriwala, Advocate for the appellants, in both the appeals. Mr. A.K. Jindal, AAG, Haryana for the respondent, in both the appeals. --- Crl.Appeal No.879-SB of 2000 -2- SHAM SUNDER, J. This judgment shall dispose of Crl. Appeal No. 879-SB of 2000 filed by Madan Lal and another and Criminal Appeal No. 1119-SB of 2000, filed by Gola alias Kuldeep, arising out of the judgment of conviction, and the order of sentence dated 16.08.2000, rendered by the Court of Additional Sessions Judge, Sirsa, vide which it convicted all the accused/appellants, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter 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 of the same, to undergo further rigorous imprisonment for a period of one year each, for having been found in possession of 14 bags, each containing 41 KGS of poppy husk, without any permit or licence. 2. The facts, in brief, are that on 30.06.1994, Abhey Singh, District Inspector, the then SHO, Police Station Kalanwali, was standing near the Canal bridge in the area of village Gadrana along with Hardev Singh, ASI and other police officials, in connection with patrol duty, where Sadhu Singh, met the police, who was joined with it. The Police party was Crl.Appeal No.879-SB of 2000 -3- talking to Sadhu Singh, independent witness, when a jeep No. RJ-13-C/1022 was seen coming along with the bank of the Canal from the side of village Jalalana at about 11.00 AM. Abhey Singh, District Inspector gave a signal to the driver to stop the jeep. The driver, however, in stead of stopping the jeep, tried to take away the same. The jeep was, however, intercepted. Madan Lal, accused was the driver of the jeep. Om Parkash, accused was sitting on the front seat while Kuldeep Singh was seen running after alighting from the back side of the jeep. The search of the jeep, in the presence of Shadi Lal, DSP, Dabawali, who was called to the spot, by sending a VT message, was conducted, in accordance with the provisions of law, as a result whereof 14 bags were found lying therein. Each bags was found containing 41 Kgs poppy husk. A sample of 100 grams of poppy husk, was taken out of each of the bags, and the remaining poppy husk was kept in the same bags. The bags, and the samples, were converted into parcels, duly sealed, and taken into possession, along with the Jeep, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The site plan was prepared. The accused were arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. Crl.Appeal No.879-SB of 2000 -4- 3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Joginder Kumar, HC, (PW-1), a formal witness, who tendered his affidavit Ex.PA, Sadhu Singh, independent witness, ( PW-2 ), who did not support the case of the prosecution, Shadi Lal, DSP ( PW-3 ), a witness to the recovery, Abhey Singh, Inspector ( PW-4 ), Investigating Officer, who investigated the case and prepared various documents, and Hardev Singh, S.I. ( PW-5 ), a witness to the recovery. Thereafter, the Additional Public Prosecutor for the State, tendered report of FSL Ex.PH in evidence, and closed its evidence. 5. 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. 5-A. Kuldeep, accused, in his statement under Section 313 Cr.P.C. took up the plea that he was falsely involved in the instant case at the instance of Gian Singh and Crl.Appeal No.879-SB of 2000 -5- Sukhbir Singh of his village because they were inimical to him. The remaining accused only took up the plea of false implication. 5-B. In their defence, the accused examined Subhash Chander, Constable, DW1 and Dilbag Singh, Constable, DW2. Thereafter, the accused closed the evidence in defence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellants, at the very outset submitted that the prosecution miserably failed to prove that the accused were found in conscious possession of the bags, containing poppy husk, and, as such, they did not commit an offence under Section 15 of the Act. He further submitted that the mere fact that one of the accused was allegedly driver Crl.Appeal No.879-SB of 2000 -6- of the jeep, the second was allegedly sitting by the side of driver on the front seat and the third after allegedly alighting from the jeep, was seen running, did not mean that they were found in conscious possession of the poppy husk. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. All the accused were occupants of the jeep. One of them was driving the same, the other was sitting by the side of the driver, and the third alighted from the jeep from the back side, and started running away A big haul of poppy husk was lying in the jeep. It was not a small quantity of contraband, which could escape the notice of the accused. Under these circumstances, it could not be imagined, that the accused were not aware of the contents of the bags, lying in the jeep. The accused were having special means of knowledge, as to under what circumstances, the bags containing poppy husk, were lying in the jeep, and to which destination the same were being transported. It was for them to explain the aforesaid circumstances. They, however, failed to explain the same. As such the accused were found in possession of and in control over the bags, containing poppy husk. Once the possession of the accused, and their control over the contraband, was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against them, that they were in conscious Crl.Appeal No.879-SB of 2000 -7- possession thereof. Thereafter, it was for them, to rebut the statutory presumption, by leading cogent and convincing evidence. However, the appellants, failed to rebut that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that 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 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 Crl.Appeal No.879-SB of 2000 -8- 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." 9-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." Crl.Appeal No.879-SB of 2000 -9- 9-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.” 9-C. 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 Crl.Appeal No.879-SB of 2000 -10- 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 the instant case, the accused failed to explain, as to how, 14 bags each containing 41 Kgs poppy-husk were found in the jeep, which was being driven by one of them. The facts of Madan Lal's case (supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal's case (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 took up the plea, only of false implication. They did not take up the plea, that they did not know the contents of the bags, lying therein. The driver of the jeep, did not take up the plea, that he was directed by the owner, to take the bags, to a certain place, and obeying his command, he was taking the same, to that destination. The other accused, did not take up the plea that they merely took a lift in the jeep, as they Crl.Appeal No.879-SB of 2000 -11- knew the driver thereof, and did not know, as to what was contained in the gunny bags. As stated above, the accused, thus, 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. 10. The Counsel for the appellants,however, placed reliance Avtar Singh and others v. State of Punjab 2002 Supreme Court Cases( Criminal ) 1769, Raj Kumar v. State of Punjab, 2005(1) RCC 279 (Division Bench ) , and Kashmir Singh v. State of Punjab 2006(2) RCR ( Criminal ) 477, in support of his contention that the appellants were not found in conscious possession of the poppy husk. The facts of Avtar Singh's case (supra) are distinguishable from the facts of the instant case. In Avtar Singh's case ( supra ), the appellant was driving the truck, whereas, two other persons were found sitting on the bags containing poppy husk. In view of the peculiar facts of that case, it was held that the accused were not in conscious possession of the contraband. It was further held that they may be labourers. It was also held that at the most, they could be said to be the abettors. Abetment is an offence under Section 29 of the Act. They were, however, not Crl.Appeal No.879-SB of 2000 -12- convicted by the Apex Court, for the offence under Section 29 of the Act, on the ground, that no charge for abetment had been framed against them. Under these circumstances, in Avtar Singh and others's case ( supra ) , it was never held by the Apex Court that the appellant did not commit any offence under the Act. Even in Megh Singh Vs. State of Punjab, 2003 (4) RCR ( Crl. ) 319(SC), Avtar Singh and others's case ( supra ) was noticed and distinguished on factual matrix. The facts of Raj Kumar's and Kashmir Singh's cases (supra ) are distinguishable from the facts of the instant case. Both these cases were decided by this Court. Any principle of law, laid down in Raj Kumar's and Kashmir Singh's cases ( supra ) to the contrary, decided by this Court, shall not hold the field, in view of the principle of law laid down in Madan Lal's and Megh Singh's cases ( supra ), decided by the Apex Court. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants, that the seal after use was kept by S.I. Abhey Singh, the Investigating Officer, whereas, the seal of the DSP was returned to him. He further submitted that, under these circumstances, the possibility of tampering with the sample Crl.Appeal No.879-SB of 2000 -13- parcels, until the same reached the office of the Forensic Science Laboratory, could not be ruled out. It may be stated here, that on reaching the Police Station, Abhey Singh, the Investigating Officer deposited the case property with the MHC on the same day. It means that the case property and the sample parcels did not remain with him. It, therefore, could not be said that the seal and the sample parcels remained with the same person, until the same ( sample parcels ) were sent to the office of the Forensic Science Laboratory. The other evidence, produced by the prosecution, has been held to be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved that none tampered with the samples until the same reached the office of the Forensic Science Laboratory. Even there is report of the Forensic Science Laboratory Ex.PH, which clearly proves that the seals on the exhibits, were intact, on arrival, till the time of its analysis and agreed with the specimen impression of the seals. The report Ex.PH of the Laboratory is per-se admissible, in toto, under Section 293 of the Code of Criminal Procedure. No challenge was made to this report. Even otherwise, there is no requirement of law, that the seal after use, should be handed over to a third person. Since it was proved that none tampered with the samples, until the same reached the office Crl.Appeal No.879-SB of 2000 -14- of the Forensic Science Laboratory, the submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 12. The Counsel for the appellants, however, placed reliance on Tara Singh v. State of Punjab 2004(2) RCC 313 and Rajesh Jagdamba Avasthi v. State of Goa 2005(1) RCR ( Criminal ) 406, ( SC ) to contend that the possibility of tampering with the samples on account of the seal having been entrusted to ASI Hardev Singh, by the Investigating Officer, could not be ruled out. Tara Singh's case ( supra ) was decided by this Court. No other cogent and convincing evidence was produced in that case that none tampered with the sample parcels, until the same reached the office of the Laboratory. It was under these circumstances, and keeping in view the number of other lacunae, this Court came to the conclusion, that the link evidence was incomplete. In Rajesh Jagdamba Avasthi's case ( supra ), the sample parcels and the seal remained with the same person and no other cogent evidence was produced that none tampered with the same until the same reached the office of the Laboratory. In the instant case, as stated above, the seals and the sample parcels, did not remain with the same person. Even cogent, convincing and trust-worthy evidence was produced by the prosecution Crl.Appeal No.879-SB of 2000 -15- that none tampered with the samples until the same reached the office of the Forensic Science Laboratory. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. No help, therefore, can be drawn, by the Counsel for the appellants, therefrom. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellants, that though the alleged recovery was effected in this case on 30.06.1994, yet the samples were sent to the office of Forensic Science Laboratory on 21.07.1994 i.e. after the delay of 21 days. He further submitted that there was no explanation, with regard to delay, in sending the samples to the office of the Laboratory. He further submitted that, under these circumstances, the possibility of tampering with the samples, until the same reached the office of the Forensic Science Laboratory, could not be ruled out, especially when the seals after use, remained with the police officials. It is, no doubt, true that there is no explanation, with regard to delay. However, mere delay, in itself, is not sufficient to come to the conclusion that the sample parcels were tampered with, until the same reached the office of the Chemical Examiner. The other evidence, produced by the prosecution, has been held to Crl.Appeal No.879-SB of 2000 -16- be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved that none tampered with the samples, until the same reached the office of the Forensic Science Laboratory. Even, there is report of the Laboratory Ex.PH, which clearly proves that the seals on the exhibits were intact, on arrival, till the time of their analysis and agreed with the specimen impression of the seals. The report Ex.PH of the Chemical Examiner is per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge to the report of the Chemical Examiner, in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received, in the office of the Forensic Science Laboratory, the submission of the Counsel for the appellants, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. Since it was proved that none tampered with the samples, until the same reached the office of the Forensic Science Laboratory, the submission of the Counsel for the appellants, Crl.Appeal No.879-SB of 2000 -17- in this regard, being without merit, must fail, and the same stands rejected. 14. The Counsel for the appellants, however, placed reliance on Narain v. State of Haryana 1997(1) RCR 414, Daya Nand v. State of Haryana 2005(3) RCR 338 and Buta Singh v. State of Punjab 2006(1) RCR ( Criminal ) 835 (P&H). All these cases were decided by this Court. No other cogent and convincing evidence was produced by the prosecution in these cases to prove that the sample parcels remained un-tampered with until the same reached the Laboratory. In the instant case, as stated above, cogent and convincing evidence was produced by the prosecution that none tampered with the sample parcels, until the same reached the office of Forensic Science Laboratory. Under these circumstances, the facts of the aforesaid authorities, relied upon by the Counsel for the appellants, are distinguishable, from the facts of the instant case. No help, therefore, can be drawn by the Counsel for the appellants, therefrom. Even otherwise, in view of the principle of law, laid down in State of Orissa 's case ( supra ) decided by the Apex Court, on the same point, any contrary principle of law, on the same point, laid down, in Narain's, Daya Nand's and Buta Singh's cases ( supra ), de cided by this Court, shall not hold the Crl.Appeal No.879-SB of 2000 -18- field. No help, therefore, can be drawn by the Counsel for the appellants, from the ratio of law, laid down, in the authorities cited by him, and referred to above. In this view of the matter, 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 there was delay of one day after withdrawal of the sample parcels, from the Malkhana, and deposit thereof, in the Forensic Science Laboratory, which remained unexplained, as a result whereof, the possibility of tampering with the same, could not be ruled out. It is, no doubt, true that Joginder Kumar, MHC, tendered his affidavit Ex.PA, wherein it was stated by him, that he handed over the sample parcels with seals intact to Tasbir Singh, Constable on 20.07.1994 and he after depositing the same on 21.07.1994 in the Laboratory, handed over the deposit receipt to him. Both these officials were posted in Police Station Kalanwali, which is at a sufficient distance from Karnal. It must have taken sufficient time for Tasbir Singh, Constable, to take the sample parcels to the Laboratory and by that time, the same must have been closed. However, sufficient evidence was produced by the prosecution, which has been discussed above, that none tampered with the sample parcels, Crl.Appeal