Criminal Appeal No.855-SB of 2005(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.855-SB of 2005(O&M) Date of decision:-December 16, 2010 Surender ...Appellant Versus State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE RAM CHAND GUPTA Present:- Mrs.Pratibha Yadav, Advocate for the appellant. Mr.Amandeep Singh, AAG, Haryana. ……. RAM CHAND GUPTA J. The present appeal has been filed against judgment of conviction dated 19.4.2005 and order of sentence dated 22.4.2005 passed by learned Special Judge, Rewari, whereby it convicted the appellant-accused under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the `NDPS Act’) and sentenced him to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.10,000/- and in default of payment of fine to further undergo simple imprisonment for a period of six months. Briefly stated, the case of prosecution is that on 12.8.2004, Parkash Chand, ASI alongwith Head Constable Gyarasi Lal No.386, Constable Kanwar Pal No.819, Constable Rajinder Singh No.400 was on patrol duty in Government Gypsy No.HR-47A/0851 being driven by Randhir Singh, Constable No.125. When they reached near village Aodi, a person was found standing near the road alongwith a plastic bag in his right Criminal Appeal No.855-SB of 2005(O&M) -2- hand. After seeing the police party he tried to run towards khadda (ditches) alongwith the plastic bag. On suspicion, he was over-powered by the ASI with the help of other police officials. On enquiry, the said person told his name as Surender son of Bal Chand Swami, resident of Jijoth, District Nago, Rajasthan. The Assistant Sub Inspector told him that he is having suspicion that he is carrying some intoxicating substance in his bag and hence, he served notice under Section 50 of the NDPS Act on the accused in this regard and gave him offer to be searched either before a Magistrate or a gazetted Officer and however, he consented to be searched before a gazetted Officer. The Assistant Sub Inspector called the Deputy Superintendent of Police, Head Quarter, Rewari, who was nearby. He reached the place of recovery after sometime and on his instructions katta, i.e., plastic bag, carried by the accused was checked in his presence and it was found that the same was containing poppy straw (chura post). Two samples weighing 250 gms each were separated from the said bag and the remaining bulk was found weighing 19kg 500 gms. Both the samples were put in separate parcels. Both the sample parcels and the plastic bag containing remaining bulk of poppy straw were sealed with the seals of PC of the ASI and JP of the DSP. The DSP kept his seal with him, whereas the seal of the ASI was handed over to Gyarasi Lal, Head Constable. The Assistant Sub Inspector sent memo Ex.PW6/A in this regard to the Station House Officer of the police Station through Rajender Singh Constable, who recorded formal FIR Ex.PW6/B on the basis of said memo and sent special report to learned Illaqa Magistrate and other senior police officers. The Investigating Officer had taken both the sample parcels and the bag containing remaining bulk of poppy straw and the memo of sample seal in possession vide memo Ex.PB, which was attested by the Deputy Superintendent of Police, Gyarasi Lal Head Constable, and Kunwar Pal Constable. He also prepared rough site plan of place of recovery Ex.PC and recorded statement of witnesses. After completion of investigation and receipt of report, Forensic Science Laboratory, report under Section 173 of the Code of Criminal Procedure (for short the `Code') was prepared by Hari Singh, Criminal Appeal No.855-SB of 2005(O&M) -3- Inspector, Station House Officer of the Police Station and the accused was sent to face trial for offence under Section 15 of the NDPS Act. Accused was charged for offence under Section 15 of the NDPS Act by learned trial Court, to which he did not plead guilty and claimed trial. In order to substantiate the allegations against the accused, prosecution has examined as many as 7 PWs. PW1 is Sabar Singh, Contable, who deposed that on 13.8.2004, he was posted at Police Station Bawal and that he had carried special report of this case to learned Illaqa Magistrate and to other senior police officers. PW2 is Rajender Singh, Head Constable, who tendered in evidence affidavit of his statement, Ex.PA. He deposed in his affidavit that on 12.8.2004, two sealed sample parcels sealed with seals of PC and JP alongwith sample impression of seal were deposited in the Malkhana of the police station and that on 13.8.2004 he had handed over one sealed sample parcel alongwith sample seal to Rajesh Kumar, Constable, for depositing the same with FSL Madhuban, who had handed over to him a receipt after depositing the same with FSL Madhuban. He tendered himself for the purpose of cross-examination and however, he was not cross-examined on any point on behalf of the accused. PW3 is Parkash Chand, ASI of Police Station, i.e., Investigating Officer of this case, who deposed regarding the whole case of prosecution, as detailed above. PW4 is Gyarasi lal, Head Constable, another eye-witness of recovery, who corroborated the version of Parkash Chand, ASI, regarding recovery of plastic bag containing 20 kg of poppy straw from the possession of the accused. PW5 is Rajesh Kumar, Constable, who tendered in evidence affidavit of his statement as Ex.PW5/A, in which he stated that on 13.8.2004, a parcel sealed with seals of PC and JP alongwith sample seal was handed over to him by Rajender, MHC for depositing the same with FSL Madhuban and that he deposited the same in the same condition with FSL Madhuban and handed over receipt to the MHC. This witness also tendered himself for cross-examination and however, no cross-examination Criminal Appeal No.855-SB of 2005(O&M) -4- was conducted on this witness on behalf of the accused. PW6 is Hari Singh, Inspector, Station House Officer, Police Station DLF, Gurgaon, who deposed that on 12.8.2004, he was posted at SI/SHO, Police Station Bawal, and on that day he had received a writing Ex.PW6/A from Parkash Chand, ASI, through Constable Rajender on the basis of which he recorded formal FIR Ex.PW6/B and sent the special report to learned Illaqa Magistrate and to other police officers through Constable Sabar Singh. He also deposed that on 3.9.2004, on completion of investigation, he prepared report under Section 173 of the Code. PW7 is Jagprevesh Dahiya, DSP, city Rewari, who deposed that on 12.8.2004, he was posted as DSP, Rewari, and that he was on night patrolling duty when he received message from Parkash Chand, ASI, Police Station Bawal, that he had apprehended a person and suspecting that he was carrying some narcotic drug in his possession at Aodhi turning, National Highway No.8 and hence after receiving message, he reached there and found Parkash Chand, ASI alongwith other police officials and the accused present there, who disclosed to him his name as Surender. He also stated that accused was having a plastic bag in his hand and on his direction, the same was searched and on search it was found containing chura post. He also deposed that two samples of 250 gm each were separated and the remaining poppy straw was put in the same bag. In all recovery was 20 kg of poppy straw. He also deposed that both the sample parcels and the plastic bag containing residue were sealed with the seals of JP and PC and that he kept his seal with himself, whereas the seal of PC was handed over to Gyarasi Lal, Head Constable, and sealed parcel was taken into possession vide Ex.PB, which was attested by him. He also identified the plastic bag Ex.P1, containing residue chura post. Prosecution also tendered into evidence report FSL Ex.PX. Statement of accused under Section 313 of the Code was recorded in which he denied the version of prosecution witnesses and claimed to be innocent. He took the plea that he had been falsely implicated in this case. However, he did not lead any evidence in his defence. After hearing learned Public Prosecutor for the State and Criminal Appeal No.855-SB of 2005(O&M) -5- counsel for the accused, learned Special Judge, convicted the appellant- accused and sentenced him as aforementioned against which the present appeal has been filed. I have heard learned counsel for the parties and have gone through the whole record carefully. It has been contended by learned counsel for the appellant- accused that case of prosecution is based on testimonies of official witnesses alone and that however, no independent witness has been joined by the Investigating Officer before searching the accused and hence, it is contended that no reliance can be placed upon the depositions of police officials alone. On the point she has placed reliance upon Hawa Singh v. State of Haryana 20054) RCR (Criminal) 292. On the other hand, it has been argued by learned State counsel that the present is the case of chance recovery and that it was late night time and hence, merely on the ground that no independent witness was joined by the Investigating Officer at the time of recovery, it cannot be said that no reliance can be placed upon testimonies of official witnesses, who were acting in discharge of their official duties. There is no rule of law that testimonies of official witnesses cannot be relied upon in the absence of corroboration by some independent witness. However, law is well settled that in case of depositions of official witnesses, the Court is put on guard to scrutinize the same, carefully and cautiously and after careful scrutiny if it comes to the conclusion that the same does not suffer from any serious infirmity, the same can be believed. In Akmal Ahmed vs. State of Delhi 1999 (2) RCR (Criminal) 265, it was held that it is now well settled that the evidence of search or seizure made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi vs. Sunil 2001(1) RCR (Criminal) 56, it was observed as under: “It is an archaic notion that actions of the police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot Criminal Appeal No.855-SB of 2005(O&M) -6- start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The officials acts of the Police have been regularly performed is a wise principle of presumption and recognised even by the Legislature.” In Appa Bai and another vs. State of Gujarat, AIR 1988 SC 696, it was observed that the prosecution story cannot be thrown out, on the ground that an independent witness has not been examined by the prosecution as the civil people are generally insensitive when a crime is committed even in their presence and they keep themselves away from the court unless it is inevitable. Hence, in the light of the aforementioned proposition of law, if the evidence of official witnesses examined by the prosecution is analysed, no doubt is created in their testimonies. It has been explained by the Investigating Officer that he did not join any independent witness in the investigation as it was late night. The Investigating Officer was not having any prior information of the crime. He alongwith other police officials was on patrol duty in the night when the accused was apprehended. Hence, it cannot be said that there was any deliberate act on the part of the Investigating Officer to have not joined the independent witness before searching the accused. Deposition of the Investigating Officer Parkash Chand, ASI, PW3 has been duly corroborated by Gyarasi Lal, Head Constable, PW4 and Shri Jag Parvesh Dahiya, DSP on all the material points. Only some minor discrepancies have come in their depositions. As per statement of PW3 Parkash Chand, police party started from police Station at 10.30 p.m. and reached the spot at about 11.30 p.m., whereas as per statement of Gyarasi Lal, Head Constable, PW4, they started from police Station at about 9.30 p.m. and reached the place of recovery at about 11.00 p.m. As per statement of Parkash Chand, Investigating Officer, PW3, proceedings were conducted in the head light of the vehicle, whereas as per statement of PW4 Gyarasi Lal, Head Constable, writing was done in the torch light. Further the Investigating Officer deposed that DSP had stayed at the place of recovery for about two hours, whereas DSP himself deposed that he stayed at the Criminal Appeal No.855-SB of 2005(O&M) -7- place of recovery for about one hour. However, these discrepancies are only minor in nature and the same are bound to come even in the depositions of truthful witnesses, as no witness is expected to remember such minute details. The police officials including DSP was not having any grudge or enmity against the appellant-accused. No such plea was taken by the accused. Hence, there is nothing as to why they should have involved the accused falsely in this case and as to why they should have deposed falsely against him. Their deposition is quite convincing, consistent and reliable and the same is also corroborated by documentary evidence, as discussed above. Hence, there is no force in the argument of learned counsel for the appellant-accused that no reliance can be placed upon the same. It has been further contended by learned counsel for the appellant-accused that there is violation of Section 42 of the NDPS Act in this case and hence prejudice has been caused to the accused. On the point she has placed reliance upon Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000(1) RCR (Criminal) 611, wherein after placing reliance upon State of Punjab v. Balbir Singh, 1994(1) RCR (Criminal) 737, the following observations were made:- “20. If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.” So far as the aforementioned legal proposition is concerned, there is no dispute. However, in the present case there was no prior knowledge or prior information received from any person by the Criminal Appeal No.855-SB of 2005(O&M) -8- Investigating Officer that accused was carrying narcotic drug or psychotropic substance in his possession and hence there was no requirement on the part of the Investigating Officer to have reduced the same into writing. Hence, it cannot be said that the Investigating Officer violated Section 42 of the NDPS Act. It is further contended that there is also violation of Section 55 of the NDPS Act as the case property was not produced before the Station House officer by the Investigating Officer and the same was not received by the Station House Officer. On this point, she has placed reliance upon Dharambir v. The State of Haryana 2008(4) RCR (Criminal) 40. Section 55 of the NDPS Act reads as under:- “55. Police to take charge of articles seized and delivered.- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” The aforementioned provision provides that an officer Incharge of police station shall take charge of the contraband articles seized under the NDPS Act and keep in safe custody, and shall allow any officer, who may accompany such articles to the Police Station, to affix his seal on such articles. In Gurbax Singh v. State of Haryana 2001(1) RCR (Crl.) 702 (S.C.) it was held that non-compliance of the provisions of Sections 52, 55 and 57, which are, no doubt, directory and hence violation thereof, would not ipso-facto violate the trial or conviction. It depends upon facts of each case as to whether any prejudice has been caused to the accused due to non- compliance of the said provisions. In the present case, the information regarding recovery was immediately sent by the Investigating Officer to the Station House Officer, Criminal Appeal No.855-SB of 2005(O&M) -9- who recorded the FIR on the basis of the said information and had also sent the special report to learned Illaqa Magistrate and to other senior police officers. The sealed parcels alongwith sample seal were also deposited with the MHC of the police station on the same night, a few hours after recovery. This fact has been deposed by the MHC, whose deposition has not been assailed in the cross-examination on behalf of the accused. The MHC handed over the sample parcel alongwith sample seal to another Constable for depositing the same with FSL, Madhuban on the very next day. Constable Rajesh Kumar, PW5 had deposed regarding this fact and his deposition has also not been assailed in the cross-examination on behalf of the accused. Perusal of report, FSL, Ex.PX shows that sample parcel was received in the laboratory duly sealed with seals of PC and JP and the same also tallied with the specimen seal as per forwarding authority's letter and hence, link evidence in this case is complete. Prosecution has been able to prove beyond any shadow of reasonable doubt that sample parcel was not tempered with till the same was received in the Laboratory. Moreover in this case, the sample parcels and the bag containing remaining bulk were containing seals of ASI as well as another officer senior to the ASI, i.e., DSP and both the seals were found intact even on bag Ex.P1, at the time of examination of the DSP, who identified the same, Hence, in view of these facts, it cannot be said that any prejudice has been caused to the accused due to the fact that Station House Officer did not affix his own seal on the parcels of recovered material when the same was deposited in the malkhana of the police station by the Investigation Officer. So far as the fact as to whether the prosecution has been able to prove the conscious possession of bag containing 20 kg of poppy straw by the accused is concerned, as already discussed above from the consistent deposition of prosecution witnesses, it is duly proved that the accused was in physical possession of the bag containing 20 kg of poppy straw. He was having control of the bag. He tried to run alongwith the bag when he was apprehended by the police. Hence, once possession of the accused in respect of contraband has been proved, presumption under Sections 54 and 35 of the NDPS Act operates against him and it can be held that he was in Criminal Appeal No.855-SB of 2005(O&M) -10- conscious possession thereof. Thereafter the onus is shifted on him to prove that he was not in conscious possession of the contraband. According to Section 54 of the NDPS Act, once a person is found to be in possession of an illicit article, he may be presumed unless and until the contrary is proved, that he had committed an offence under the NDPS Act. Section 54 of the NDPS Act reads as under:- “54. 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 controlled 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.” Similarly Section 35 of the NDPS Act raises a presumption regarding culpable mental state. According to Section 35 of the NDPS Act, 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. According to the explanation, appended to this Section, culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. A conjoint reading of both these sections clearly goes to show that the prosecution is only required to prove that the accused was found to Criminal Appeal No.855-SB of 2005(O&M) -11- be in possession of a contraband, or a controlled substance. Once it is proved by the prosecution, then the onus lies on the accused to prove that he was not in conscious possession of such a contraband, or controlled article. Since in the present case, accused failed to rebut the statutory presumptions operating under Sections 54 and 35 of the NDPS Act, as no plea whatsoever has been taken by him in his statement under Section 313 of the Code, the only inference which can be drawn is that he is proved to be in conscious possession of the same. In Madan Lal v. State of H.P. 2003 SCC (Crl.) 1664, it was observed 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 the possession of illicit articles.” No other point has been urged by learned counsel for the appellant-accused. In view of the above discussion, it is held that judgment of conviction rendered by learned trial Court is based on correct appreciation of evidence and law on the point and the same does not warrant any interference and is liable to be upheld. Further so far as order of sentence is concerned, it has been vehemently contended by learned counsel for the appellant-accused that he has been facing trial since the year 2004, i.e., for the last more than six years. It is further contended that he is not involved in any other case and that he is also not a previous convict and that he has also not misused the concession of bail. It is further contended that he is having old aged parents to look after and hence it is contended that lenient view in the matter of