Crl. Appeal No.952-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.952-SB of 1997 Date of Decision : March 25, 2008 Malkiat Singh S/o Gulzar Singh, ....Appellant R/o Bhaddarwad, Police Station Barnala, District Sangrur. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Pawan Sharma, Advocate, for the appellant. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 4.11.1997, and the order of sentence of the even date, rendered by the Court of Addl. Sessions Judge, Mansa, vide which it convicted the accused/appellant Malkiat Singh, for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years. However, accused Kundan Singh, Chhoti, Bhajo @ Rajo, and Leela Singh @ Langra, were acquitted of the charge, framed against them, vide the aforesaid judgment. 2. The facts, in brief, are that on 23.6.1996, Gurdip Singh, Inspector, alongwith Gurdev Singh, ASI, Bhagat Singh, HC, and other police officials, was present in official Mini Bus No.PB03-3170, driven by Basant Singh, Constable, at bus stand Nangal Khurd, in connection with checking of suspicious persons. At about 11.15 AM, white coloured Ambassdor Car No.PJL-9911, came from the side of Jhunir, driven at a high speed. The said Crl. Appeal No.952-SB of 1997 2 car was signalled to stop. Two ladies, one driver, and two other persons, were found travelling therein. The said persons seemed to be of suspicious character. The driver of the car instead of stopping the same, drove it at a high speed. The police party chased the said car, in the aforesaid official vehicle. The driver of the car took the same to village Jawharke. Ultimately, the car was apprehended by the police party. The driver of the car, on inquiry, told his name as Malkiat Singh S/o Gulzar Singh, R/o Bhaddarwad, P.S. Barnala. On inquiry, he told the names of other persons, sitting in the car as Chhoti W/o Bhola Singh, Bhajo D/o Sawarn Singh, Leela @ Langra S/o Chetu Singh, residents of Bhikhi, and Kundan Singh S/o Kartar Singh, resident of Vajidke, P.S. Sadar, Barnala. He further told the police party that the remaining occupants of the car had alighted in village Jawharke. In the meanwhile, Rupa S/o Chanan Singh, resident of Mansa Mandi, who was working in the nearby fields, came to the police party. He was joined with the police party. Gurdip Singh, Inspector, then sent a wireless message to Chanchal Singh, DSP (H), Mansa, as a result whereof, he came to the spot. Thereafter, the car was searched, in accordance with the provisions of law, in the presence of the said DSP. 6 bags of poppy-husk were found therein. 100 grams poppy-husk, as sample from each of the bags, was taken out. The remaining poppy-husk of five bags on weighment came to be 35 kgs. each and in the sixth bag it came to be 15 kgs. The same was put in to the same bags. The samples and the gunny bags, were converted into parcels, duly sealed with the seal bearing impression 'GS', and were taken into possession alongwith the Car, Registration Certificate, and the Driving Licence, vide memo Ex.PE, attested by the witnesses. The sample seal was prepared separately. On personal search of Malkiat Singh, accused, a sum of Rs.125/- was recovered, which was taken into possession vide memo Ex.PF, attested by the witnessesses. Malkiat Singh, accused was arrested and arrest memo was prepared. Ruqa was sent to the Police Station, on the basis whereof, the formal Crl. Appeal No.952-SB of 1997 3 FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The statements of the witnesses were recorded. Pipal Singh, Special Police official, identified the remaining accused. His statement was also recorded at the spot. On return to the Police Station, the case property was produced before Harbans Singh, SHO, who verified the facts and affixed his own seal, bearing impression 'HS', on the samples and the case property. Kundan Singh, accused was arrested on 29.6.1996. The remaining accused were arrested on 5.7.1996. After the completion of investigation, the 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 15 of the Act, was framed against them, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of his case, examined Harbans Singh, Inspector, (PW-1), before whom the case property and the samples were produced, and he also produced the same, before the Illaqa Magistrate, Mangat Ram, Constable (PW-2), who tendered his affidavit Ex.PC, Gurdev Singh, ASI (PW-3), a recovery witness, and Gurdip Singh, Inspector, (PW-4), the Investigating Officer. 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. They, however, examined Rupa Singh, as DW-1, in their defence, and thereafter closed the same. 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 accused Malkiat Singh, as stated hereinbefore. Crl. Appeal No.952-SB of 1997 4 7. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Malkiat Singh, accused/appellant. 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 appellant, at the very outset, contended that the prosecution miserably failed to prove that Malkiat Singh, accused, was found in conscious possession of 6 bags, containing poppy-husk. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Malkiat Singh, accused was driving the said car, and 6 bags, containing poppy-husk, were lying in the car aforesaid. Once the physical possession of the accused, in respect of 6 bags, containing poppy-husk, was proved, presumption under Sections 35 and 54 of the Act, operated against him, that he was in conscious possession thereof. It was for him, to rebut the presumption, by leading cogent and convincing evidence. However, the appellant 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 he was in conscious possession of the contraband. 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.” Crl. Appeal No.952-SB of 1997 5 10. 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. The accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas. 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, 6 bags of poppy-husk were found in the car, which was being driven by him. 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 his statement under Section 313 Cr.P.C., the accused/appellant took up the plea, that he was falsely implicated. No other defence was set up by him. Since, the accused/appellant failed to rebut the presumption, referred to above, his conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellant, that the alleged recovery, in this case was effected on 23.6.1996, whereas the samples were sent on 27.6.1996 to the office of the Chemical Examiner. He further contended that delay in sending the samples to the Office of the Chemical Examiner, was not explained by the prosecution witnesses, and, as such, it must prove fatal to the case of the prosecution. It is, no doubt, true that no explanation was furnished by the prosecution witnesses, with regard to the delay of 4 days, in sending the sample to the office of the Chemical Examiner, yet this Crl. Appeal No.952-SB of 1997 6 fact alone, in my considered opinion, is not sufficient to throw away the case of the prosecution over board. In such circumstances, the Court is required to take into consideration the entire evidence produced by the prosecution. If after indepth analysis of the evidence produced by the prosecution, the Court comes to the conclusion, that the delay in sending the sample, had not at all affected the merits of the case, then such delay pales into insignificance. In the instant case, the cogent, convincing, reliable and trustworthy evidence of Harbans Singh, Inspector, Mangat Ram, Constable, Gurdev Singh, ASI, and Gurdip Singh, Inspector, has been subjected to indepth scrutiny. On such an indepth scrutiny of the evidence of these witnesses, including the report of the Chemical Examiner, the trial Court came to the conclusion that delay in sending the sample to the office of the Chemical Examiner, did not affect the merits of the case, nor did it go to prove, in the instant case, that, at any stage, the sample parcel and the case property, were tampered with. This Court, after careful perusal of the evidence, referred to above, also comes to the same conclusion. Therefore, in the instant case, unexplained delay of about 4 days, in sending the sample 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 appellant, being without merit, must fail, and the same stands rejected. 12. It was next contended by the Counsel for the appellant, that the seal after use, in this case, was not handed over to Rupa, PW, who was joined by the Investigating Officer, at the time of the alleged recovery from the accused, and, as such, this fact must prove fatal to the case of the prosecution. The submission of the Counsel for the appellant, is not correct, in this regard. It may be stated here, that the Court is required to take into consideration the entire evidence, the facts and circumstances of the case, to come to the conclusion, as to whether, any prejudice was caused to the accused, on account of non-handing over the seal used by the concerned official, for sealing the Crl. Appeal No.952-SB of 1997 7 material, recovered from him, to an independent witness, who was joined during the course of investigation. If after over-all consideration of the facts and circumstances, and evidence, on record, the Court comes to the conclusion, that on account of this reason, prejudice was caused to the accused, then certainly, it could be said that the case of the prosecution became doubtful. Even, otherwise, there is evidence, in abundance, in the shape of the statements of Harbans Singh, Inspector, Mangat Ram, Constable, Gurdev Singh, ASI, and Gurdip Singh, Inspector, that none tampered with the case property and the sample, till the same (samples) were deposited in the office of the Chemical Examiner. When from the cogent, convincing, reliable, and trustworthy evidence, it is proved that none tampered with the sample parcels and the case property throughout, then the Court can not act on conjectures and surmises or mere far-fetched possibilities, that the sample parcel, might have been tampered with. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal by the Investigating Officer, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory for him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. Non-entrustment of seal to Rupa, independent witness, and his non-examination, in view of the cogent, convincing, reliable, and trustworthy evidence produced by the Crl. Appeal No.952-SB of 1997 8 prosecution, regarding the completion of link evidence, did not at all affect the merits of the case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next contended by the Counsel for the appellant, that though Rupa, public witness, was joined by the Investigating Officer, at the time of the alleged recovery, yet he was not examined, and given up as won over, by the accused, as a result whereof, the case of the prosecution became doubtful, yet the trial Court did not take this aspect of the matter, into consideration, as a result whereof, miscarriage of justice occasioned. No doubt, Rupa, independent witness, was joined by the Investigating Officer, at the time of effecting the alleged recovery, from the accused. However, he joined hands with the accused, during the course of the trial, of this case. Accordingly, he was given up as won over, by the Addl. P.P. For the State. The factum that Rupa was actually won over by the accused, during the trial of the case, stood further strengthened, when he appeared as DW, on of behalf of the accused. The Public Prosecutor is to decide, as to whether, he wanted to examine a particular witness, or not. Since, the Public Prosecutor came to the conclusion, that Rupa, public witness, had sided with the accused, during the course of the trial, and, in case, he was examined, he would damage the case of the prosecution, he took a wise decision, to give him up as won over. In my opinion, he rightly gave him up as won over. The evidence of the Investigating Officer, and other prosecution witnesses, has been reappraised, and nothing could be found, during the course of their cross-examination, which may go to discredit their evidence. The evidence of the prosecution witnesses, is creditworthy, and inspires confidence, in the mind of the Court. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court held that no adverse inference can be drawn, when the only independent witness was given up by the prosecution, as won over by the accused. It was further held, in Crl. Appeal No.952-SB of 1997 9 the said authority, that the panch witnesses being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another Vs. State of Gujrat 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined by it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next contended by the Counsel for the appellant, that though the DSP, reached the spot, yet he was not examined, as a witness by the prosecution, as a result whereof, the case of the prosecution became doubtful. This submission of the Counsel for the appellant, in the instant case, also does not carry weight. No doubt, Chanchal Singh, DSP (H), Mansa, was called, by the Investigating Officer, at the time of effecting the recovery, from the accused. Since, the Public Prosecutor, came to the conclusion that the evidence of Harbans Singh, Inspector, Mangat Ram, Constable, Gurdev Singh, ASI, and Gurdip Singh, Inspector, was sufficient to prove the case of the prosecution, he Crl. Appeal No.952-SB of 1997 10 did not think it proper to examine Chanchal Singh, DSP. The Public Prosecutor is the master of the case. It was, for him, to decide, as to how many witnesses, he wanted to examine, to prove his case. It is not necessary, for him, to multiply the number of witnesses, for the purpose of proving a particular point. In this view of the matter, if Chanchal Singh, DSP, was not examined, by the Public Prosecutor for the State, that did not affect the merits of the case. In this view of the matter, the submission of the Counsel for the appellant, being devoid of the merit, must fail, and the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. 16. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 17. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 4.11.1997, are upheld. If the accused/appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment, with due promptitude. March 25, 2008 (SHAM SUNDER) Vimal JUDGE