Crl. Appeal No.1376-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.1376-SB of 2003 Date of Decision : September 19, 2008 Kuldeep Singh S/o Bant Singh, ....Appellant resident of Village Galoti. Versus The State of Punjab ....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. J.R.Mittal, Sr. Advocate, with Mr. B.D.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 3.6.2003, and the order of sentence dated 5.6.2003, rendered by the Special Judge, Ferozepur, vide which he convicted the accused/appellant, 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 six months, for having been found in possession of 5 bags, each containing 35 Kgs. Poppy-husk, without any permit or licence. 2. The facts, in brief, are that, on 23.6.1996, Bakhshish Singh, SI, Crl. Appeal No.1376-SB of 2003 2 Incharge CIA Staff, Zira, alongwith other police officials, was going towards Dharamkot, in connection with patrol duty, and search of suspected persons, in an official Canter, and when the police party reached the Chowk of Kot Isse Khan, he received a secret information, that Kuldeep Singh @ Kala S/o Bant Singh, resident of Village Galoti, P.S. Dharamkot, was in the habit of selling poppy-husk, and even, at that time, he was in possession of huge quantity of poppy-husk, and if a raid was conducted, then the same could be recovered. As the information was reliable, Bakhshish Singh, SI, sent ruqa, to the Police Station, on the basis whereof, formal FIR, was registered. Thereafter, the police party reached the house of the accused. Message was sent to Baljinder Singh Grewal, DSP, Zira, to reach village Galoti. The accused, was found in his house. The DSP, reached the spot. The accused was apprehended. Bakhshish Singh, SI, interrogated the accused, in the presence of the DSP, who made a disclosure statement, that he had concealed 5 bags, containing poppy-husk, under the wheat chaff, lying in the tubewell room, of his land, which he had taken on lease, of which, he only knew, and could get the same recovered, by pointing out. The accused thumb marked the disclosure statement, which was attested by the witnesses. Thereafter, the accused led the police party, to the pre-disclosed place, and got recovered 5 bags, each containing 35 Kgs. Poppy- husk. A sample of 250 grams, from each of the bags, was taken out, and the the remaining poppy-husk, was kept in the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. The accused was arrested. The statements of the witnesses, were recorded. Rough site plan of the place of recovery, was prepared. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section Crl. Appeal No.1376-SB of 2003 3 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Bakshish Singh, SI, (PW-1), the Investigating Officer, Dalbir Singh, HC, (PW-2), Balwinder Singh, ASI, (PW-3), S.P.Kohli, Asstt. Chemical Examiner, Bhatinda, (PW-4), Gurmel Singh, Inspector, (PW-5), Kuldeep Kumar, Constable, (PW-6), Gurnaib Singh, Constable (PW-7), and Baljinder Singh Grewal, SP (PW-8), at the relevant time DSP. 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. It was stated by him, that he never made any disclosure statement, nor any recovery was effected, from him. He, however, did not lead any evidence, in his defence. 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 learned 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, submitted that Bakhshish Singh, SI, the Investigating Officer, sent the ruqa, in this case, on receipt of the secret information, and himself investigated the case. He further submitted that the course adopted by Bakhshish Singh, SI, was contrary to the provisions of law. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here, that in Crl. Appeal No.1376-SB of 2003 4 S.Jeevanantham Vs. State through Inspector of Police, T.N. (2004) 5 Supreme Court Cases, 230, a case decided by the Apex Court, it was held that if the Police Officer, who is the complainant, also conducts the investigation of the case, and it is not proved that any prejudice was caused to the accused, on account of the adoption of such a course, he (accused) cannot be acquitted. In this case, there is nothing, on record, to indicate, that a prejudice was caused to him, on account of the adoption of the aforesaid course, by the Investigating Officer. In S.Jeevanantham's case (supra) the recovery of contraband was effected from the accused, by a Police Officer, who sent the ruqa, and, thus, became the complainant. The same very Police Officer conducted the investigation. Under these circumstances, it was held that since no prejudice or bias was shown to have been caused, to the accused, on account of the adoption of such a practice, by the Police Officer, the investigation, and the subsequent proceedings, did not become invalid. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 10. It was further submitted by the Counsel for the appellant, that the conscious possession of the accused, in respect of the poppy-husk, was not proved, as the alleged recovery, was effected from the fields, which were open and accessible to all and sundry. The submission of the Counsel for the appellant, does not appear to be correct. The bags, containing poppy-husk, had been concealed by the accused, in a room, under the wheat chaff. He had, therefore, exclusive knowledge thereof. His statement, under Section 27 of the Indian Evidence Act, was recorded, with regard to the exclusive knowledge of the bags, containing poppy-husk. In pursuance of that disclosure statement, he led the police party to the pre-disclosed place, and got recovered the contraband. Had the contraband been not concealed, under the wheat chaff, and had it been not in the exclusive knowledge of the accused, it would have been said that Crl. Appeal No.1376-SB of 2003 5 since the recovery was effected, from the open fields, he (accused) could not be said to have been in conscious possession thereof. The accused was found in possession of the bags, containing poppy-husk, referred to above. Once the possession of the accused, in respect of the bags, containing poppy-husk, was proved, the statutory presumption, under Sections 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. Then the onus shifted on to him, to prove that he was not in conscious possession thereof. The accused, however, failed to rebut the statutory presumption aforesaid. In Megh Singh Vs. State of Punjab, 2003 (4) RCR (Criminal) 319, on 22.2.1993, three persons were found sitting on the gunny bags, containing poppy husk. The appellant was arrested, while the other two fled. 25 bags, containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession. The word ‘conscious’ means awareness about a particular fact. It is the state of mind, which is deliberate or intended. It was further held that possession, in a given case, need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it, subject to that power or control. 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 Crl. Appeal No.1376-SB of 2003 6 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.” 10-A. It, therefore, could not be said that the accused was not aware of the bags, containing poppy-husk. Keeping in view the principle of law, laid down, in the aforesaid authorities, the provisions of Sections 54 and 35 of the Act, and the evidence produced, on record, the trial Court, in my opinion, was right in coming to the conclusion, that the accused was in conscious possession of 5 bags, each containing 35 kgs. poppy-husk. 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. The Counsel for the appellant, however, placed reliance on Alakh Ram Vs. State of U.P. 2004(1) RCR (Criminal) 736, Ishwar Singh Vs. State of Punjab 2008(2) RCR (Criminal) 417, Kaku Singh and others Vs. State of Punjab 2008(3) RCR (Criminal) 37, and Jit Singh Vs. The State of Punjab 2008(2) RCR (Criminal) 655, in support of his contention, that the accused, was not found in conscious posession of the poppy-husk. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. In Alakh Singh's case (supra), decided by the Apex Court, 17 cannabis plants from the field of the accused, were recovered. No evidence was produced that the plants were cultivated by the accused. The Apex Court, held that sometimes plants may sprout up, due to natural process. In these circumstances, it was held that the accused was not the owner, and in control over the fields, where the cannabis plants, were cultivated, and, as such, was not in conscious possession thereof. In Ishwar Singh's case (supra), the accused was found sitting on one bag of poppy-husk. It was held by a Single Bench of this Court, that the conscious possession of the accused, in respect of the contraband, was not proved. In Kaku Singh's case (supra), the accused was Crl. Appeal No.1376-SB of 2003 7 seen sitting on the bags, lying in the cotten fields. The Investigating Officer, had not enquired about the ownership of the fields. It was held that the accused was not in conscious possession of the poppy-husk. In Jit Singh's case (supra), decided by a Single Bench, of this Court, the accused was found sitting on 3 bags of poppy-husk. The Investigating Officer had not enquired about the ownership of the fields. In these circumstances, it was held that the conscious possession of the accused, was not proved. In the instant case, the recovery was effected, in pursuance of the disclosure statement, made by the accused, to the effect that he had exclusive knowledge of concealment of the bags, containing poppy-husk, at a particular place. The facts of the aforesaid authorities, being distinguishable, no help can be drawn, by the Counsel for the appellant, therefrom. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that the statement, under Section 27 of the Indian Evidence Act, 1872, was not admissible into evidence, on the ground that the accused, was not under arrest, at that time, when he allegedly made the same. He placed reliance on Karnail Singh Vs. State of Punjab 2003(4) RCR (Criminal) 316, in support of his contention. The submission of the Counsel for the appellant, does not appear to be correct. In the said authority, it was held that the disclosure statement of a person was not required to be recorded, when he was to be interrogated, and was not an accused, in any case. It may be stated here that, in the instant case, on receipt of the secret information, againt the accused, ruqa was sent to the Police Station, on the basis whereof, FIR was registered. The moment, the FIR was recorded, it could be said that Kuldeep Singh became accused. He was formally arrested, as soon as his house was raided, and thereafter, interrogated, as a result whereof, he made a disclosure statement, under Section 27 of the Indian Evidence Act, and got recovered the poppy-husk, from the pre-disclosed Crl. Appeal No.1376-SB of 2003 8 place. The facts of Karnail Singh's case (supra), were, therefore, completely distinguishable from the facts of the instant case. In that case, the FIR had not been registered, against the accused, before his interrogation. It was got registered after recording his disclosure statement, and after he got the recovery of contraband effected. Since, the facts of the aforesaid authority, are distinguishable, from the instant case, no help can be drawn by the Counsel for the appellant therefrom. 13. It was next submitted by the Counsel for the appellant, that no investigation was conducted by the Investigating Officer, as to whom the kotha, wherefrom, the accused allegedly got effected the recovery of contraband, belonged. He further submitted that even, no investigation was made by the Investigating Officer, as to whom the fields in which the kotha was constructed, belonged. He further submitted that, under these circumstances, a prejudice was caused to the accused. He further submitted that the accused, therefore, was not connected with the contraband. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the instant case, the recovery was not effected, in pursuance of the ordinary search. The recovery, in the instant case, was effected, in pursuance of the disclsoure statement, made by the accused. Had the recovery been effected, in the ordinary search, it would have been said that until and unless, the ownership of the fields, or the kotha was proved, the accused, could not be connected with the contraband. The Counsel for the appellant, also placed reliance on Jarnail Singh Vs. State of Punjab 2008(2) RCR (Criminal) 464, in support of his contention. The facts of the aforesaid authority are clearly distinguishable, from the facts of the instant case. Even otherwise, if it is taken, that the Investigating Officer, committed some irregularity, during the course of investigation, that does not mean that the accused was entitled to the benefit of doubt. If, the accused, is given the benefit of doubt, on the basis of such an irregularity, having been committed by the Crl. Appeal No.1376-SB of 2003 9 Investigating Officer, then every negligent and dishonest Investigating Officer, shall leave the lacunae, in the investigation, so as to create an escape route for the accused. In Jarnail Singh's case (supra), the accused was acquitted, on a number of grounds, and not only, on the ground, that the Investigating Officer, did not verify the ownership, or possession of the accused, over the place, wherefrom the recovery was effected. No help, therefore, can be drawn, by the Counsel for the appellant, from the aforesaid authority. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant, that the provisions of Section 100(4) of the Act, were not complied with, as a result whereof, the trial, conviction, and sentence, stood vitiated. It may be stated here, that as soon as, the secret information was received, ruqa was sent to the Police Station. Since, the urgency was involved, in the move, the Investigating Officer, alongwith other police officials, immediately reached the house of the accused, where he was found present, and he was apprehended. No doubt, Bakshish Singh, SI, (PW-1), the Investigating Officer, stated that no independent witness from the locality was joined. It is a matter of common experience, that the independent witnesses, from the locality hardly come forward to join a search and seizure, with a view to avert wrath of the accused, and complications, at a later stage, on account of their appearance, in the Court, from time to time, for their evidence. In the first instance, it may be stated here that the provisions of Section 100(4) of the Act, are not mandatory, in nature. Non-compliance therewith, does not vitiate the trial, conviction, and sentence. At the most, on account of non-joining of an independent witness from the locality, the Court is put on guard, to scrutinize the evidence of the prosecution witnesses, carefully and cautiously. The evidence of the prosecution witnesses, in this case, has been scrutinized carefully, and cautiously, and the same has Crl. Appeal No.1376-SB of 2003 10 been found to be cogent, convincing, trustworthy, and reliable. In Sunder Singh Vs. State of U.P., AIR 1956 Supreme Court 411, two persons not belonging to the locality, had been joined, at the time of search. It was contended by the Counsel for the appellant, that since the provisions of (Section 103 Cr.P.C. Of 1898), now Section (100(4) Cr.P.C. 1973), were not complied with, at the time of search, the search and the consequent recovery became illegal and could not be taken into consideration. Repelling the contention, it was held that assuming that the persons, who actually witnessed the search, were not respectable inhabitants of the locality, that circumstance would not invalidate the search. It would only affect the weight of the evidence, in support of search and recovery. Hence, at the highest, the irregularity in search and recovery, in so far as the terms of (Section 103 Cr.P.C. Of 1898) had not been fully complied with, would not affect the legality of the proceedings. In Puran Mal Vs. Director of Inspection (1974) 1 SCC 345, a Constitution Bench of the Apex Court, held that the material obtained by an illegal search, is not inadmissible into evidence, and can be acted upon, to record a conviction. In State Vs. Jasbir Singh (1996) 1 SCC 288, it was held that the evidence collected in breach of the mandatory requirements, does not become inadmissible. The principle of law, in nut shell, laid down, in the aforesaid authorities, was to the effect, that the provisions of Section 100(4) are not mandatory, in nature, and non-compliance therewith, will not vitiate the investigation and the trial. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-compliance of the provisions of Section 100(4) of the Act, the case of the prosecution, did not become doubtful. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. The Counsel for the appellant, however, placed reliance on State of Crl. Appeal No.1376-SB of 2003 11 Punjab Vs. Jalaur Singh 2002(3) RCR (Criminal) 478, Sewa Singh Vs. State of Haryana 2008(2) RCR (Criminal) 520, and Dilbagh Singh Vs. State of Punjab 2008(2) RCR (Criminal) 725, in support of his contention. In State of Punjab's case (supra), no independent witness was joined, though available. It was held that this fact must prove fatal to the case of the prosecution. In Sewa Singh's and Dilbagh Singh's cases (supra), decided by the Single Benches of this Court, no independent witness was joined, despite availablity. Keeping in view this fact, and all other circumstances, prevailing in those cases, the accused was acquitted. In the instant case, Dalbir Singh, HC, (PW-2), stated that the public witnesses were tried to be joined, from the village, but nobody agreed to join, the police party. It means that an effort was made to join the independent witnesses, from the locality, but none came forward to join. It was, under these circumstances, that no independent witness, could be joined. The conduct of the Investigating Officer, therefore, could not be said to be blameworthy, on account of the aforesaid reasons. Even otherwise, in view of the principle of law, laid down, in Sunder Singh's, Puran Mal's and Jasbir Singh's cases (supra), decided by the Apex Court, any principle of law laid down to the contrary in Sewa Singh's and Dilbagh Singh's cases (supra), decided by this Court, shall not hold the field. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. It was next submitted by the Counsel for the appellant, that the statement of DSP (PW-8), was not recorded by the Investigating Officer, as a result whereof, a prejudice was caused to the accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Bakshish Singh, SI (PW-1), stated at the time of his statement, in the Court, that the statement of the DSP, under Section 161 Cr.P.C., was not attached with the judicial file. He further denied the suggesttion, that he did not record the statement of the DSP. No question was put to Balwinder Singh, SP (PW-8), as Crl. Appeal No.1376-SB of 2003 12 to whether his statement, under Section 161 Cr.P.C., was recorded, or not. It, therefore, could not be said that the statement of the DSP, was not recorded, under Section 161 Cr.P.C. Even if, it is assumed, for the sake of arguments, that his statement, under Section 161 Cr.P.C. was not recorded, that did not matter much. That circumstance could only cast somewhat doubt on the case of the prosecution. However, in view of the other cogent, convincing, and reliable evidence, produced by the prosecution, this circumstance pales into insignificance. Balwinder Singh, DSP, was examined as a witness, and he was thoroughly cross-examined, by the Counsel for the accused. No prejudice was shown to have been caused to the accused, on account of non-recording of the statement under Section 161 Cr.P.C. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 17. It was next submitted by the Counsel for the appellant that the contents of the affidavits, and of the Chemical report, were not specifically put to the accused, as a result whereof, the same could not be used against him. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. One of the questions, put to the accused, was to the effect, that on 26.6.1996, Gurmail Singh, SHO, handed over the samples of this case, to Gurnaib Singh, Constable, for depositing the same in the office of the Chemical Examiner, Bhatinda, who after getting the docket, forwarded from the office of SSP, Ferozepur, deposited the sample parcels, in the office of the Chemical Examiner, Bhatinda,