Crl. Appeal No.1454-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.1454-SB of 2002 Date of Decision : April 30, 2008 Hardev Singh S/o Waryam Singh, ....Appellant R/o village Varing, P.S.Sarhali, Amritsar. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vikram K. Chaudhary, 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, and the order of sentence dated 9.9.2002, rendered by the Special Judge, Amritsar, vide which it convicted the accused/appellant Hardev 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 one year, for having been found in possession of 4 gunny bags, each containing 39 Kgs. 250 grams poppy-husk, without any permit or licence. 2. The facts, in brief, are that on 9.5.2001, Rattan Singh, SI/SHO, alongwith other police officials, was present near the turning of village Jamarai, and was conducting routine checking, when at about 1.00 AM (mid-night), the accused came in a rickshaw, from the side of Gurdwara Dera Sahib. He was signalled to stop, with the help of a torch. The accused slowed down, and tried Crl. Appeal No.1454-SB of 2002 2 to turn backwards. On the basis of suspicion, he was intercepted. On enquiry, he disclosed his name as Hardev Singh S/o Waryam Singh. On search of the rickshaw, in accordance with the provisions of law, in the presence of Baljinder Singh Chhapa, DSP, who was called to the spot, by sending a wireless message, 4 bags, each containing 39 kgs. and 250 grams poppy-husk were recovered. A sample of 250 grams was taken out of each bag, and the remaining poppy-husk was kept in the same bags. The samples and the bags, were converted into parcels, duly sealed with the seals, bearing impressions 'RS' and 'BS', and thereafter, taken into possession, vide a separate recovery memo. The accused was arrested. The statements of the witnesses, were recorded. After the completion of investigation, the accused were challaned. 3. On 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 him, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of his case, examined Rattan Singh, SI/SHO, the Investigating Officer, who made a detailed statement, with regard to the date, time and place of recovery, Jagtar Singh, Constable (PW-2), who was entrusted the sample parcels, duly sealed, in this case, alongwith the sample impressions of the seals, for deposit in the office of the Chemical Examiner, and who deposited the same in intact condition, and Baljinder Singh, DSP (PW- 3), in whose presence, the search of the bags, was conducted, resulting into recovery, referred to above. Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, examined Sarabjit Singh, HC (DW-1), who brought the DDR, bearing entry Crl. Appeal No.1454-SB of 2002 3 No.37 dated 9.5.2001, pertaining to Police Station Goindwal, and proved DW1/A, and copy thereof, and Ex.DW1/B, copy of the Log Book of Canter No.PB 46-0537 dated 9.5.2001. Thereafter, he closed the defence evidence. 6. After hearing the Addl. 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 appeal, was filed by the 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 no independent witness, despite availability, was joined by the Investigating Officer. He further contended that, even no effort was made to join an independent witness, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Rattan Singh, SI (PW-1), the Investigating Officer, in his examination-in-chief, in itself, stated that he informed Baljinder Singh Chhapa, DSP over wireless, to reach the spot, as a result whereof, he came there, after half an hour. He further stated that he sent Mohinder Pal, ASI, to locate some independent witness, from village Jama Rai, who on return told him, that none was ready to join the police party. From the statement of Rattan Singh, SI, it was proved beyond doubt, that an effort was made to join, an independent witness, but nobody was ready to join the police party. In these circumstances, the case of the prosecution, cannot be held doubtful, on account of non-corroboration through independent source. In the absence of corroboration through an independent source, the Court is put on guard to scrutinize the evidence of the official witnesses. After careful scrutiny, if the Crl. Appeal No.1454-SB of 2002 4 Court comes to the conclusion that the evidence of the prosecution witnesses, does not suffer from any serious infirmity, then the same can be believed. The trial Court scrutinized the evidence of the official witnesses, in a careful manner, and came to the conclusion, that the same did not suffer from any serious infirmity. This Court, on reappraisal, of the evidence of the prosecution witnesses, has also come to the conclusion. The trial Court, thus, rightly relied upon the evidence of the official witnesses, in the instant case. The evidence of the official witnesses, cannot be distrusted and disbelieved, merely on account of their official status. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), 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 (2000)I S.C.C. 748, it was held 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 start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” 9-A. 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 the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims side, and from the side of the vigilant. They keep themselves away Crl. Appeal No.1454-SB of 2002 5 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 aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate, the accused, no doubt is cast on the prosecution story. In this view of the matter, the submission of the Counsel for the appellant, stands rejected. 10. It was next submitted by the Counsel for the appellant, that the alleged recovery was effected on 9.5.2001, whereas, the samples were sent to the office of the Chemical Examiner on 15.5.2001 i.e. after a delay of 6 days. It is, no doubt, true that no explanation was furnished by the prosecution witnesses, with regard to the delay of 6 days, in sending the samples to the office of the Chemical Examiner, yet this 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 the prosecution witnesses, has been subjected to indepth scrutiny. On such an indepth scrutiny of the evidence of the prosecution witnesses, including the report of the Chemical Examiner, the trial Court came to the conclusion that the 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 parcels and the case property, were tampered with. This Court, after careful perusal of the Crl. Appeal No.1454-SB of 2002 6 evidence, referred to above, also comes to the same conclusion. Therefore, in the instant case, unexplained delay of about 6 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. 11. It was next submitted by the Counsel for the appellant, that the conscious possession of the accused, in respect of the contraband was not proved. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Rattan Singh, SI (PW-1), the Investigating Officer, stated that the accused was seen coming in a rickshaw, in which 4 bags, containing poppy husk were lying. No other passenger was sitting in the rickshaw. Accused all alone was carrying the rickshaw, at that odd hour of the night. It means that the accused was in conscious possession of the bags, containing poppy-husk, referred to above. Once the physical possession of the accused, in respect of 4 bags, containing poppy-husk, was proved, presumption under Sections 35 and 54 of the Act, operated against him, to the effect, that he was in conscious possession thereof. Thereafter the onus shifted on to him, to prove that he was not in conscious possession of the contraband. 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 Crl. Appeal No.1454-SB of 2002 7 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.” 12. 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, 4 bags of poppy-husk were found in the rickshaw, which was being pulled 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. The accused failed to prove, as to how, at that odd hour of the night, he was carrying 4 bags, containing poppy-husk, in a rickshaw. He did not take up the plea, that somebody else had kept the bags, containing poppy-husk, in his rickshaw, he was only carrying the same against charges, and therefore, did not know, as to what was contained therein. He did not take up the plea, that his friend had given him, the rickshaw, to take the same to some destination, and he did not know, as to what was contained in the bags, lying in the rickshaw. He did not take up the plea, that he was merely a carrier of the bags, containing poppy-husk, and had no concern with the same. Crl. Appeal No.1454-SB of 2002 8 In these circumstances, the accused miserably failed to rebut the statutory presumption, operating against him, under the provisions of Sections 35 and 54 of the Act, that he was in conscious possession of the poppy-husk, contained in the bags, referred to above. 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. 13. It was next submitted by the Counsel for the appellant, that the link evidence in the instant case, was incomplete. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Rattan Singh, SI (PW-1), the Investigating Officer, was also the SHO of Police Station Goindwal Sahib, on the relevant day. It was stated by him, that he handed over the sample parcels, duly sealed, alongwith the sample impression of the seals, to Jagtar Singh, Constable, on 15.5.2001, who after getting the docket prepared from the office of the SSP, deposited the same in the office of the Chemical Examiner, on the same day. He further stated that none tampered with the sample parcels, till the same remained in his custody. Jagtar Singh, Constable (PW-2), in his affidavit, Ex.PK, in clear-cut terms, stated that these sample parcels, duly sealed with the seals, bearing impressions 'RS' and 'PS', which were intact, alongwith the sample impression of the seals, were entrusted to him on 15.5.2001, and he deposited the same, in the office of the Chemical Examiner, and none tampered with the same, till the same remained in his custody. Above all, there is report Ex.PJ, of the Chemical Examiner, which clearly goes to prove that the seals on the sample parcels, were intact, and tallied with the specimen impression of the seals sent. It appears that such an argument was advanced by the Counsel for the appellant, just for the sake of it, which is not supported by the evidence, on record. The link evidence, in the instant case, was complete. The submission of the Counsel for the appellant, Crl. Appeal No.1454-SB of 2002 9 being without merit, must fail, and the same stands rejected. 14. The defence evidence, in the shape of the statement of Sarabjit Singh, HC (DW-1), did not advance the case of the accused, in any manner. He proved Ex.DW1/A, copy of DDR No.37 dated 9.5.2001, and Ex.DW1/B, copy of the log book of Canter No.PB 46-0537. These documents clearly proved the ocular version given by Rattan Singh, SI, to the effect that the police party, had gone to the place of recovery. These documents also clearly proved that after effecting the recovery, the police party, came back to the Police Station. No help, therefore, could be drawn by the Counsel for the appellant, from the statement of Sarabjit Singh, HC (DW-1). 15. No other point, was urged, by the Counsel for the appellant. 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 9.9.2002, are upheld. If the accused/appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Amritsar, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 Cr.P.C. April 30, 2008 (SHAM SUNDER) Vimal JUDGE