Criminal Appeal No. 1490-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1490-SB of 2003 Date of Decision: 30.03.2010 Harjinder Singh son of Mehar Singh son of Gurmej Singh, aged 35 years, Driver, r/o village Fatehbad, Tehsil Tarn Taran, District Amritsar. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. G.K. Mann, Advocate, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction and the order of sentence, dated 05.07.03, rendered by the Special Judge, Amritsar, vide which, he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced him, to undergo rigorous imprisonment, for a period of 10 years, and, to pay a fine of Rs. 1 lac, and, in default of Criminal Appeal No. 1490-SB of 2003 2 payment thereof, to further undergo rigorous imprisonment, for a period of 01 year, for having been found in possession of 40 bags, each containing 37 kgs poppy heads, without any permit or licence, falling within the ambit of commercial quantity. Surta Singh, co-accused of the appellant, was, however, acquitted. 2. The facts, in brief, are that, on 12.03.01, Malkiat Singh, Inspector/Station House Officer, Police Station Verowal, alongwith some other Police officials, was on patrol duty, in the area of Bus Stand, Khadoor Sahib, when a secret information, was received, that truck, bearing No. PB-08-5544, carrying some contraband, was coming from the side of village Khawaspur. Relying on the secret information, the Police party proceeded towards Khawaspur-Khadoor Sahib road and held a picket. In the meanwhile, one Mukhtiar Singh, resident of Khadoor Sahib, was joined in the Police party. After sometime, truck bearing No. PB-08-5544, was seen coming, from the side of village Khawaspur, which was got stopped, by Malkiat Singh, Inspector. Harjinder Singh, accused, was found sitting, at the steering wheel of the truck, whereas, Surta Singh, accused, who was sitting, in the main body thereof, managed to escape. On the basis of suspicion, the truck, was searched, in the presence of Baljinder Singh, Deputy Superintendent of Police, who was called to the spot, wherefrom, 40 gunny bags, each containing 37 kgs poppy heads were recovered. A sample of 500 gms from each bag, was separated, and the remaining poppy heads, were kept, in the same bags. The samples and the bags, containing the remaining poppy heads, were converted into parcels, Criminal Appeal No. 1490-SB of 2003 3 duly sealed, and taken into possession, alongwith the truck, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. The site plan of the place of recovery was prepared. Harjinder Singh, accused, was arrested. Later on, Surta Singh, accused, was also arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Baljinder Singh, Deputy Superintendent of Police (PW1), a witness to the recovery, Bhupinder Singh, Constable (PW2), Malkiat Singh, Inspector (PW3), the Investigating Officer, and, Balbir Singh, Assistant Sub Inspector (PW4). Thereafter, the prosecution evidence, was closed. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them that they were innocent. It was further stated by them, that nothing, was recovered, from them. It was further stated by them that they had been falsely implicated, in the instant case. They however, did not lead any evidence, in defence, and closed the same. 7. After hearing the Counsel for the parties, and, on going Criminal Appeal No. 1490-SB of 2003 4 through the evidence, on record, the trial Court, convicted and sentenced Harjinder Singh accused, and, acquitted Surta Singh, accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by Harjinder Singh, appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that, no doubt, an independent witness, in the name of Mukhtiar Singh, was joined with the Police party, yet, he was not examined, but, on the other hand, was given up, as won over, by the Additional Public Prosecutor, for the State. She further submitted that on account of this reason, the case of the prosecution, became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is, no dispute, about the factum, that Mukhtiar Singh, independent witness, was joined, but, he was given up, as won over by the accused, on the request of the Police, by the Additional Public Prosecutor, for the State. It means that, this witness, was given up, by the Public Prosecutor, for the State, after being satisfied, that he had actually been won over. The Public Prosecutor, for the State, is the master of the case. It is for him, to decide, as to which witness, he wants to examine, and which witness, he does not want to examine. Since Mukhtiar Singh, independent witness, had been won over by the accused, there was no necessity of examining him, as the Additional Public Prosecutor, for the State, very well knew that, if he examined Criminal Appeal No. 1490-SB of 2003 5 Mukhtiar Singh, independent witness, he would cause damage, to the case of the prosecution. The discretion, exercised by the Additional Public Prosecutor, for the State, in giving up Mukhtiar Singh, could not be said to be arbitrary or capricious. On the other hand, the decision, taken by the Additional Public Prosecutor, for the State, could be said to be bonafide. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material, or even if, it is known that he/she has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference could be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in 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 Criminal Appeal No. 1490-SB of 2003 6 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 cases, is fully applicable to the facts of the present case. Even otherwise, the other evidence produced by the prosecution is reliable. 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 though, the alleged recovery, was effected, on 12.03.01, yet the sample parcels, were sent, to the office of the Chemical Examiner, on 20.03.01, i.e. after a delay of 08 days without any explanation and, as such, the possibility of comparing with the samples could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence, Criminal Appeal No. 1490-SB of 2003 7 produced by the prosecution, has been subjected to indepth scrutiny, and, as stated above, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex. PX, which clearly proves that the seals on the samples, were intact, on their arrival, in the Laboratory, and tallied with the sample seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293. The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In State of Orissa Vs. Kanduri Sahoo, 2004(1), RCR (Criminal), 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. It was held, in the aforesaid cases, that in the face of the other cogent, convincing, reliable, and trustworthy evidence produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of Criminal Appeal No. 1490-SB of 2003 8 tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 08 days, in sending the samples to the office of the Chemical Examiner, did not cast any doubt, on the prosecution story. 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 submitted by the Counsel for the appellant, that no CFSL Form, was prepared, at the spot, but, was fabricated, later on, as a result whereof, the link evidence became incomplete. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is no provision of law, that CFSL Form, should be prepared, at the spot. The CFSL Form, is prepared, while sending the sample parcels, to the office of the Chemical Examiner. In the instant case, the CFSL Form, was prepared, when the samples, were sent, to the office of the Chemical Examiner. This fact, is evident, from the report exhibit PX of the Chemical Examiner. Sufficient evidence, was led, by the prosecution, to the effect, that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. In this view of the matter, non-preparation of CFSL Form, at the spot, did not at all cast any doubt, on the prosecution story. 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 submitted by the Counsel for the appellant, that the appellant, was neither the owner, nor the driver of the truck, Criminal Appeal No. 1490-SB of 2003 9 wherefrom, the alleged recovery was effected. She further submitted that, under these circumstances, it could not be said, that the appellant, was in conscious possession of the poppy heads. She further submitted that, thus, the appellant, did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The appellant, was found sitting, at the steering wheel of the truck, whereas, Surta Singh, accused (since acquitted), was found sitting, in the main body of the truck, who jumped out and ran away. On search of the truck, 40 bags, each containing 37 kgs poppy heads, were recovered. The appellant, being the driver of the truck, at the relevant time, and sitting, at the steering wheel thereof, had special means of knowledge, as to wherefrom, such a big haul of poppy heads, was loaded, in the truck; from whom, the same, was purchased; where the same, was being taken; and for what purpose, the same, was being taken. He could not plead ignorance, when the contraband, was recovered from the vehicle of which he was the driver that he was not aware of the same. No explanation, was furnished, by the appellant, on the aforesaid aspects of the case. The possession of the appellant, in respect of the bags, containing poppy heads and his control over the same, therefore, stood duly proved. Once his possession, was proved, statutory 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 statutory presumption, by leading cogent and convincing evidence. He, however, failed to lead any evidence, to rebut the statutory presumption. As such, he was in Criminal Appeal No. 1490-SB of 2003 10 conscious possession of the contraband. Section 54 of the Act ibid reads as under :- "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 controller 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." 13-A. Section 35 which relates to the presumption of culpable mental state, is extracted as under :- "Presumption of culpable mental state:- (1) 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 Criminal Appeal No. 1490-SB of 2003 11 in that prosecution. Explanation:- In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." 13-B. From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it becomes abundantly clear, that once an accused, is found to be in possession of a contraband, he is presumed to have committed the offence, under the relevant provisions of the Act, until the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise. 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.” Criminal Appeal No. 1490-SB of 2003 12 14. 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. All the accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas, despite the fact, that one of the accused admitted his conscious possession, of the contraband. 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 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 Criminal Appeal No. 1490-SB of 2003 13 power or control. The facts of Madan Lal's case (supra) are almost 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 of false implication. As stated above, the accused miserably failed to rebut the statutory presumption, referred to above. Thus, 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. 15. It was next submitted by the Counsel for the appellant, that, in his statement, under Section 313 of the Code of Criminal Procedure, the accused, was not put any question, that he was found, in conscious possession of the poppy heads, allegedly recovered, from the body of the truck, and, as such, he could not be convicted, for the offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here that, in statement, under Section 313 of the Code of Criminal Procedure, only the incriminating circumstances, appearing against the accused, in the prosecution evidence, are required, to be put. He is not required to be put either the provisions of law or the presumption, operating under the provisions of law, in his statement, under Section 313 of the Code of Criminal Procedure. He was put the question, that he was the driver of the truck, and, thus, was found in possession of 40 bags, each containing 37 kgs poppy heads. He was Criminal Appeal No. 1490-SB of 2003 14 only required to be put questions, with regard to the possession of the contraband. Once his possession, in relation to the contraband, was proved, then statutory presumption, under Section 35 and 54 of the Act, operated against him, that he was in conscious possession of the contraband. Charge was framed, against the accused, wherein, it was put, that he was found in possession of poppy heads. He was granted full opportunity, to cross-examine the witnesses. His statement, under Section 313 of the Code of Criminal Procedure, was recorded. He was given an opportunity to lead defence evidence. So full opportunity, was given, to him, to defend himself, and, to disprove the factum, that he was in conscious possession of the poppy heads. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. No other point, was urged, by the Counsel for the parties. 17. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. 18. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellant, is on bail, his bail bonds, shall stand cancelled. 19. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the Criminal Appeal No. 1490-SB of 2003 15 applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 20. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 21. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 30.03.2010 (SHAM SUNDER) AMODH JUDGE