Crl. Appeal No.236-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.236-SB of 2001 Date of Decision : 19.12.2008 1. Ganga Parshad S/o Shyam Sunder, ....Appellants resident of Novastha, District Kanpur, U.P. 2. Rohit Diwedia S/o Inder Parkash, resident of Acharya Nagar, P.S.Ram Purva, District Kanpur. Versus The State of Haryana ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. K.S.Dhaliwal, Advocate, with Mr. Baljinder Singh, Advocate, for the appellants. Mr. S.S.Mor, DAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 12.12.2000, rendered by the Judge, Special Court, Jhajjar, vide which he convicted the accused/appellants, for the offence, punishable under Section 20 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 Crl. Appeal No.236-SB of 2001 2 of the same, to undergo rigorous imprisonment for another period of two years each, for having been found in possession of 80 kgs. charas, (falling within the ambit of commercial quantity), without any permit or licence. 2. The facts, in brief, are that, on 19.1.1998, Khushal Singh, Inspector, CIA, GRP Ambala Cantt, accompanied by Ajmer Singh, SI, and other police officials, was present, near the Railway crossing of Railway Station, Assaudah. At about 11.30 AM, they noticed a white ambassador car, bearing registration No.MPO-680, coming from the side of Bahadurgarh. On suspicion, it was stopped, for checking. In the meanwhile, Taj Singh, Excise Inspector, also came there, who was joined with the police party. Ganga Parshad and Rohit, accused, were the occupants of the said car. Since, Khushal Singh, Inspector, suspected some intoxicant substance, in the car, he gave an offer to the accused, in terms of Section 50 of the Act. He sent a message, as a result whereof, Sukhpal, DSP, came to the spot. Thereafter, the search of the Car, as per the directions of the DSP, was conducted, by Khushal Singh, Inspector, and 80 packets, containing 80 kgs. Charas, were recovered, from the special cavities, created on the back of the back seat, and on the roof of the same (Car). A sample was taken out, from one packet, and the remaining charas was put into an iron drum. The sample, and the iron drum, containing the remaining charas, were converted into parcels, duly sealed with the seals, and taken into possession, alongwith the car and its registration certificate. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The statements of the witnesses, were recorded. Rough site plan of the place of recovery, was prepared. The accused were arrested. After the completion of investigation, the Crl. Appeal No.236-SB of 2001 3 accused were challaned. 3. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 20 of the Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Naresh Kumar, HC (PW-1), Rameshar Lal, SI (PW-2), Ram Phal, SI (PW-3), Rajinder Singh, Constable (PW-4), Satbir Singh, Constable (PW-5), Sukhpal, SP (PW-6), Ajmer Singh, SI (PW-7), Khushal Singh, Inspector (PW-8), the Investigating Officer, and Taj Singh, Excise Inspector (PW-9). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. 5-A. Rohit, accused, in his statement, under Section 313 Cr.P.C., stated that he was involved, in this case, at the instance of Karambir, who is an employee of Field Gun Factory, Kanpur, whose brother is Constable in the Railway Police, Ambala Cantt. 5-B. Ganga Parshad, accused, in his statement, under Section 313 Cr.P.C., also took up the same plea, as was taken up, by Rohit, accused. 5-C. The accused, however, examined Jai Bhagwan (DW-1), in their defence. Thereafter, they closed the defence evidence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Crl. Appeal No.236-SB of 2001 4 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 appeal, was filed by the appellants. 8. I have heard the learned 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 both the accused were not the owners of the car, in question, but no investigation was conducted, by the Investigating Officer, as to whom the car belonged. He further submitted that, under these circumstances, the origin of charas, was not ascertained, by the Investigating Officer. He further submitted that, as such, the accused did not commit any offence, punishable under Section 20 of the Act. It is, no doubt, true that the Investigating Officer, committed an illegality or irregularity, in not ascertaining the ownership of the car, in which the charas was being transported by the accused. However, on account of such illegality or irregularity, having been committed by the Investigating Officer, during the course of investigation, it could not be said that the accused, did not commit any offence, punishable under Section 20 of the Act. If, on the basis of the illegality or irregularity, committed by an Investigating Officer, during the course of investigation of a case, the accused is acquitted, then every dishonest or negligent Investigating Officer, shall leave a lacuna, in the prosecution case, so as to create an escape route, for the accused. It is settled principle of law, that the accused cannot be acquitted, on account of the illegality or irregularity, committed by an Investigating Officer, during the course of investigation, of the case. Crl. Appeal No.236-SB of 2001 5 Both the accused, were apprehended, while transporting charas aforesaid, in the car. They were, thus, found in possession of, and in control over the charas aforesaid. Once their possession, and control over the charas, being transported in the car, was proved, statutory presumption, under Sections 54 and 35 of the Act, operated against them, that they were in conscious possession thereof. The accused, thus, committed the offence, punishable under Section 20 of the Act. At the most, if the owner of the car, had been ascertained, and it had been found, that he knowingly permitted the use of the car, for the purpose of transporting charas, he could be challaned for the offence, punishable under Section 25 of the Act. However, on account of non-challaning of the owner of the car, for the offence, punishable under Section 25 of the Act, the liability of the accused, for the commission of an offence, under Section 20 of the Act, for having been found in possession of charas, aforesaid, could not be diluted. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellants, that the prosecution miserably failed, to prove that the accused were found in conscious possession of charas, aforesaid, and, as such, no offence was committed by them, under Section 20 of the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. A big haul of charas, was being transported, by the accused, in the car. Only the accused were the occupants thereof. One of them was the driver thereof, and the other was sitting by his side. It, therefore, could not be said that they were not aware of such a big haul of charas, being carried in the car. It was not a small quantity of charas, which was being carried Crl. Appeal No.236-SB of 2001 6 by them, in the car, which could escape their notice. It was within the special means of knowledge of the accused, as to how, such a big haul of charas was found in the car; wherefrom the same was loaded in the said car, and to which destination the same was being taken. It was for them to explain the aforesaid circumstances. They, however, did not furnish any explanation, in this regard. Under these circumstances, the possession of the accused, and their control over the packets, containing charas, stood proved. 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 possession thereof. Thereafter, it was for them, to rebut the 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 Crl. Appeal No.236-SB of 2001 7 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." 10-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 Crl. Appeal No.236-SB of 2001 8 beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." 10-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.” 11. 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, Crl. Appeal No.236-SB of 2001 9 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, 80 packets, containing charas, were found in the car, 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/appellants took up the plea, only of false implication. The driver of the car, did not taken up the plea, that he was carrying these packets, containing charas, at the command of the owner, and therefore, did not know, as to what, was contained therein. The other accused did not take up the plea, that he only took a lift, in the car, as he did not found any other transport, to go to his village, and did not know, as to what was contained in the packets, lying in the car. He also did not take up the plea, that he was only a labourer engaged to load the charas, in the car, and to unload the same, at a destination. No plea was also taken up by him, that he was friendly to the driver of the car, and at his asking took lift in the same, to provide him company. 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 Crl. Appeal No.236-SB of 2001 10 proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellants, that no question was put to the accused, in their statements, recorded under Section 313 Cr.P.C., that they were in conscious possession of the charas, allegedly lying in the car. It may be stated here, that in the statements, under Section 313 Cr.P.C., only the incriminating circumstances, appearing against the accused, in the prosecution evidence, are required to be put. There is no provision, in the Code of Criminal Procedure, that in the statements, under Section 313 Cr.P.C. either the provisions of law, or the presumption, obtaining under the provisions of law, should also be put to the accused. The accused were, however, put a specific question, that one of them, was the driver of the car, and the other was sitting by his side, in which 80 packets, containing charas, were lying. They were, thus, made aware that they were in possession of, and in control over the packets, containing charas, lying in the car. Once their possession was proved, the presumption, under the aforesaid provisions of law, operated against them, that they were in conscious possession thereof. 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 only one sample, instead of two samples, which is the requirement of law, was taken from the charas, allegedly recovered from the accused, and, as such, a prejudice was caused to the accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. There is no requirement of law, that two samples from the contraband, Crl. Appeal No.236-SB of 2001 11 allegedly recovered from the accused, should be drawn, by the Investigating Officer, at the time of recovery. The object of drawing a sample, is that the same should be sent to the Forensic Science Laboratory, for the purpose of analysis. The sample was sent to the Forensic Science Laboratory, and it was found that the contents thereof were sufficient, for the purpose of analysis. There was, therefore, no violation of any provision of the Act, or the Rules framed thereunder. No dent, therefore, was caused, in the case of the prosecution, on account of drawing of one sample, from the charas, allegedly recovered. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellants, that there was a delay of 9 days, in sending the sample, to the office of the Forensic Science Laboratory, 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 sample, to the office of the Forensic Science Laboratory, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcel was tampered with, at any stage. In such a situation, 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, 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 parcel, until the same reached the office of the Forensic Crl. Appeal No.236-SB of 2001 12 Science Laboratory. Above all, there is report of the Forensic Science Laboratory, Ex.PH, which clearly proves that the seals on the sample, were intact, and tallied with the specimen seal, as per forwarding authority. The report of the Forensic Science Laboratory is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 of the Code of Criminal Procedure. The delay in sending the sample, to the office of the Forensic Science Laboratory, 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 parcel, remained untampered with, until the same reached the office of the Forensic Science Laboratory, the matter would have been different. 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. 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 these circumstances, it was held 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 authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 9 days, in sending the sample to the office of the Forensic Science Laboratory, did not at all matter much. In this view of the matter, the Crl. Appeal No.236-SB of 2001 13 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 the CFSL form was not prepared, at the spot, as a result whereof, a prejudice was caused to the accused. It may be stated here, that there is no requirement of law, that the CFSL form must be prepared, at the spot. The evidence produced, by the prosecution, clearly proves that none tampered with the sample, until the same reached the office of the Forensic Science Laboratory. Therefore, the link evidence was complete. Preparation or non-preparation of CFSL form, at the spot, therefore, did not, in any way, cast any doubt, on the prosecution story. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 16. Last of all, the Counsel for the appellants, submitted that, as per the prosecution story, there were 80 packets, allegedly concealed in the car, but according to Khushal Singh, Inspector, as admitted by him, during the course of cross-examination, he only took one sample from one packet. He further submitted that the sample, which was taken from one packet by him, could be said to be a representative sample, of that particular packet. He further submitted that only that sample was sent to the Forensic Science Laboratory, for analysis, which found the contents thereof, constituting charas. He further submitted that since neither the remaining packets, containing the substance, nor the samples therefrom, were sent to the Forensic Science Laboratory, it could not be said that the same contained charas or something else. He also submitted that the weight of each sample was not conducted, and, as such, it could not be Crl. Appeal No.236-SB of 2001 14 said that each one of them was allegedly found to be containing 1 kg. charas. He further submitted that, under these circumstances, it could only be said that only the charas contained in one packet, out of which a sample was taken, and sent to the Forensic Science Laboratory, could be said to be allegedly in possession of the accused. He also placed reliance on Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panji, Goa, AIR 1993, SC 1456 and Javed A. Bhat Vs. Union of India 2008(1) RCR (Criminal) 57, in support of his contention. The submission of the Counsel for the appellants, in this regard, appears to be partly correct. In Gaunter Edwin Kircher's case (supra), a polythene bag, was recovered, from the accused, which he had put in the pocket of his pyjama. In that polythene bag, there were tobacco, one cigarette paper packet, and two cylindrical pieces of Charas. Two pieces of Charas were weighed, and found to be 7 grams, and 5 grams respectively. One of the pieces, weighing less than 5 grams, was sent for chemical analysis, and the other piece, was not sent, nor part of it, by way of sample, was sent for chemical analysis. The Junior Scientific Officer, in the Directorate of Health Services, carried out the chemical analysis of the substance, weighing 4.570 grams, consisting of three cylindrical pieces sticking together, and deposed that the substance which was examined, was found to have contained charas. The trial Court held that, as such, the accused was only found to be