-1- Criminal Appeal No.2390-SB of 2006. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.2390-SB of 2006. Date of Decision: April 23, 2010. Sukhdev Singh ... Appellant VERSUS State of Punjab ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers 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.S.P.S. Sidhu, Advocate, for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Sukhdev Singh (appellant) has filed this appeal against the judgment of conviction and the sentence order dated 26.8.2006 passed by the learned Special Judge, Ferozepur, whereby he was convicted under Section 15(c) of the Narcotic -2- Criminal Appeal No.2390-SB of 2006. Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay Rs.1 lac, as fine, in default whereof to undergo further rigorous imprisonment for a period of one year. It may be mentioned here that Balkar Singh and Paramjit Singh (co-accused of the appellant), absconded during trial and were declared proclaimed offenders. As per allegations of the prosecution, on 8.2.2000, a police party headed by Assistant Sub Inspector Gursewak Singh, Incharge Police Post Sito Guno, which included Head Constable Gurmit Singh and other police officials was present at Chowk Bishanpura on Defence Road in connection with checking and `Nakabandi'. A truck bearing registration No.DL-IGB-0203 was noticed coming from the side of Village Dodewal. Assistant Sub Inspector Gursewak Singh stopped the truck by giving signal. Three persons including driver were sitting in the cabin of the truck. They were made to get down from the truck. They were questioned by Assistant Sub Inspector Gursewak Singh about their identity. The driver of the truck told his name as Balkar Singh. Second person told his name as Sukhdev Singh(appellant) and the third person told his name as Paramjit Singh. The police party informed the accused that it wanted to conduct search of the truck as they were suspected to be carrying some contraband article. The accused were given an option that they could get their search conducted before a Magistrate or a Gazetted Officer. The accused opted for -3- Criminal Appeal No.2390-SB of 2006. the search to be conducted in the presence of a Magistrate or a Gazetted Officer. Separate consent memos of the accused in this regard were prepared. A wireless message was sent to Moharrir Head Constable of Police Station Sadar Abohar to arrange to send some Gazetted Officer or Magistrate at the spot. At about 12.30 P.M, Deputy Superintendent of Police Gurmit Singh reached at the spot and he introduced himself to the accused. Search of the truck was conducted in the presence of Deputy Superintendent of Police. Upon search of the truck, twenty bags containing poppy husk were recovered from underneath 400 bags of chips. On weighment, each of the bag was found to contain 30 kgs of poppy husk. One sample of 250 grams each was separated from the bags. The samples and the remaining poppy husk contained in the bags were separately sealed and taken into possession by the police. Rough site plan of the place of recovery was prepared. Ruqa was sent to the Police Station and on its basis formal First Information Report was registered against the accused under Section 15 of the Act. After registration of the case against the accused, they were formally arrested and memos containing grounds of their arrest were prepared. On receipt of the report of the Chemical Examiner and completion of investigation, challan against the accused was presented in Court. Charge was framed against the accused for the offence punishable under Section 15 of the Act. They did not plead guilty to -4- Criminal Appeal No.2390-SB of 2006. the charge and claimed trial. At the trial, the prosecution examined Inspector Nagaur Singh (P.W.1), Deputy Superintendent of Police Gurmit Singh (P.W.2), Head Constable Surinder Kumar (P.W.3), Sub Inspector Gursewak Singh (P.W.4) and Head Constable Gurmit Singh (P.W.5). In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant denied the prosecution allegations and pleaded false implication. He stated that nothing was recovered from him. No evidence was led by the appellant in his defence. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that twenty bags, each containing 30 Kgs of poppy husk were recovered from the appellant. The trial Court convicted and sentenced the appellant, as mentioned above. I have heard Mr. S.P.S Sidhu, Advocate, appearing for the appellant and Mr. Vishal Munjal, Additional Advocate General, Punjab, appearing for the State and have gone through the records of the case. Learned counsel for the appellant, by placing reliance on the authorities reported as Avtar Singh v. State of Punjab, 2002 (4) R.C.R (Criminal) 180, State of Punjab v. Hari Singh & Ors, 2009 (2) R.C.R (Criminal) 143 and Dayal Singh and another v. State of Punjab, 2007 (2) R.C.R (Criminal) 596 argued that the object of examination of the accused under Section 313 of the Code of Criminal Procedure is to -5- Criminal Appeal No.2390-SB of 2006. afford an opportunity to the accused to explain the circumstances appearing in the evidence against him, but no question was put to him (accused) during his such examination that he was in conscious possession of contraband. Learned counsel for the appellant argued that the recovery in this case was allegedly made from the truck, which was occupied by three persons. However, it was presumed that the appellant was in possession of the contraband without calling upon him to explain the circumstances giving rise to such presumption. According to the learned counsel, it makes the case of the prosecution untrustworthy and entitles the accused to acquittal. I have given my careful consideration to the argument raised by learned counsel for the appellants. However, I do not find any substance in this argument. Each case has its own facts. Therefore, no hard and fast rule can be laid down to define what is or what is not “possession” of a narcotic substance. In the case of Madan Lal and another v. State of Himachal Pradesh, 2003 (4) R.C.R (Criminal) 100 wherein recovery of contraband was made from the search of a car in which five persons were travelling and one of them had stated that the contraband (i.e 820 grams charas contained in one steel container (dolu) in a black coloured bag, which was recovered from the said car) belonged to him, it was held by the Hon'ble Supreme Court that this statement of the accused was totally out of context and no credence could at all -6- Criminal Appeal No.2390-SB of 2006. be attached to the statement because in his statement recorded under Section 313 of the Code of Criminal Procedure, he (the said accused) did not state that he alone was in possession of the contraband. In Madan Lal's case (supra), all the accused were held responsible for possession. In Paras 20, 27 and 28, the Apex Court, in the said case, observed as under:- “ 20. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 27. 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 presumption available in law. Similar is the position in terms of Section 54 -7- Criminal Appeal No.2390-SB of 2006. where also presumption is available to be drawn from possession of illicit articles. 28. In the factual scenario of the present case not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.” In the case of Avtar Singh v. State of Punjab, 2002(4) RCR (Criminal) 180, the Apex Court observed as under:- “ The word ''possession'' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together by the minimum requisite element which has to be satisfied in custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants-one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants -8- Criminal Appeal No.2390-SB of 2006. of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves (scarce?) after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but there is no such charge here. True, their silence and failure to explain circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them.” In Megh Singh v. State of Punjab, (2003) 8 Supreme Court cases 666, the decision of the Apex Court in Avtar Singh's case (supra) was discussed in the following terms but the Court -9- Criminal Appeal No.2390-SB of 2006. relying upon the principle of circumstantial flexibility, came to the conclusion that in the factual scenario of Megh Singh's case (supra), the accused had failed to show that his possession was not conscious. It was held as under:- “ Once possession is established, the person who claims that it was not a conscious possession has to establish, 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 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.” In view of the above, it cannot be concluded that huge haul of 20 bags of poppy husk contained in the truck escaped notice of the accused. It was within special means of knowledge of the accused as to how 20 bags of poppy husk were found in the truck and to which destination they were being taken. Once possession of the contraband by the accused is established on record and the accused had been given sufficient opportunity under Section 313 of the Code of Criminal Procedure to explain the position, microscopic scrutiny of every judicial action -10- Criminal Appeal No.2390-SB of 2006. cannot be permitted and the accused cannot be given benefit of hypothetical assumptions. Besides, it is well-settled that omission to bring the attention of the accused to an inculpatory material does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. The facts and circumstances of the case, discussed above, do not show that any prejudice was caused to the accused in this case by not putting a particular question to the accused during examination under Section 313 of the Code of Criminal Procedure regarding conscious possession of the contraband. Under the circumstances, taking into account the totality of the evidence led on record by the prosecution, I have no hesitation in holding that the accused was in conscious possession of the contraband. Learned counsel for the appellant further argued that the case of the prosecution is based only on the statements of the official witnesses and no independent person was joined by the police party. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non-joining of any independent witness has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by the learned counsel, I do not find any force therein in the presence of cogent and -11- Criminal Appeal No.2390-SB of 2006. trustworthy evidence put forth by the prosecution. Recovery in this case was effected per chance while the police party was patrolling the area. Otherwise also, normally the independent witnesses do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The accused-appellant has also not alleged any enmity with them (police officials). In this background, merely the fact that no independent witness was joined to witness the recovery, is not a good ground to discard the testimonies of the official witnesses. It has been repeatedly held that the prosecution story cannot be discarded on the ground that independent witness has not been examined. No discrepancy worth the name could be pointed out in the statements of the prosecution witnesses. Otherwise also, there was no reason for the police to falsely implicate the accused in such a case where stringent punishment has been provided by the Legislature. In these circumstances, non-joining of any independent witness by the police in this case does not at all affect the veracity of the prosecution case. For the aforesaid reasons, I do not find any merit in this appeal and the same is hereby dismissed. The truck in which the contraband was being transported is ordered to be -12- Criminal Appeal No.2390-SB of 2006. confiscated to the State. April 23, 2010. ( MOHINDER PAL ) ak JUDGE