Criminal Appeal No. 876-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 876-SB of 1999 Date of Decision: 15.03.2010 Amarjit Singh son of Bindra Ram, resident of village Langroya, P.S. Sadar District Nawanshahr. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. D.N. Ganeriwala, 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 28.08.99, rendered by the Special Judge, Nawanshahar, vide which, he convicted the accused, 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. 876-SB of 1999 2 payment thereof, to further undergo rigorous imprisonment, for a period of 01 year, for having been found in possession of 9 bags each containing 35 kgs 250 gms poppy husk, without any permit or licence, falling within the ambit of commercial quantity. However, Debo and Sohan Lal, two co-accused, were acquitted, by the trial Court. 2. The facts, in brief, are that, on 07.02.98, Varinder Kumar, Station House Officer, Police Station Sadar Nawanshahar, alongwith other Police officials, spotted the accused (now appellant) alongwith his two co-accused (since acquitted), in the cremation ground, who, on noticing the presence of the Police party, made an attempt, to slip away. Amarjit Singh, accused, was apprehended, whereas, his co-accused escaped. They were chased, but, could not be arrested. In the meanwhile, one Harnek Singh, an independent witness, also came there, who was joined as a witness. On interrogation, Amarjit Singh, accused, made a disclosure statement, that he had concealed 9 bags, containing poppy husk, in a room of the cremation ground, of which, he only knew, and could get the same recovered by pointing out. His disclosure statement was reduced into writing, in pursuance whereof, he got recovered 9 bags, each containing 35 kgs 250 gms poppy husk. Sample of 250 gms, was taken out of each bag, and 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. Ruqa was sent to the Police Station, on the basis whereof, the first Criminal Appeal No. 876-SB of 1999 3 information report was registered. The site plan of the place of recovery was prepared. The accused, was arrested. In the meanwhile, the remaining accused, were 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 Avtar Singh, Constable (PW1), Vinod Kumar, Assistant Sub Inspector (PW2), Varinder Kumar, Station House Officer (PW3), the Investigating Officer, Satish Kumar, Sub Inspector (PW4), Kuldip Singh, Deputy Superintendent of Police (PW5), and, Surinder Kumar, Moharrir Head Constable (PW6). Harnek Singh, prosecution witness, was given up as having been won over by the accused. 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, they had been falsely implicated, in the instant case, on account of enmity. They, however, did not lead any evidence in defence, and closed the same. Criminal Appeal No. 876-SB of 1999 4 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced Amarjit Singh, accused, as stated above, whereas, it acquitted Debo and Sohan Lal, co-accused. 8. Feeling aggrieved, the instant appeal, has been filed by Amarjit 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 the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The recovery, in this case was not effected from the person of the accused, but from a room in the cremation ground. As such the provisions of Section 50 were applicable, to this case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. The submission of the Counsel for the appellant, thus, being without substance stands rejected. The Counsel for the appellant, however, placed reliance, on Dalip and another Vs. State of M.P., AIR, 2007 Criminal Appeal No. 876-SB of 1999 5 (SC), 369, in support of his contention, that even, in such like cases, the mandatory provisions of Section 50 of the Act, were required to be complied with. In view of the principle of law, laid down, in State of Punjab's case (supra), by a constitution Bench of the Apex Court, any contrary principle of law, on the same point, laid down, by a two Judge Bench, shall not hold the field. In this view of the matter the submission of the Counsel for the appellant, being devoid of merit is rejected. 11. It was next submitted by the Counsel for the appellant, that the conscious possession of the appellant, in respect of the poppy husk, was not proved, as a result whereof, no offence, punishable under Section 15 of the Act, was committed by him. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In this case, on interrogation, Amarjit Singh, accused, made a disclosure statement, that he had concealed 9 bags, each containing 35 kgs 250 gms poppy husk. Ultimately, he got recovered the same. The concealment of the bags, containing poppy husk, was in the exclusive knowledge of the accused. It, therefore, could not be said, that he was not in conscious possession of the poppy husk. Once the possession of the accused, in relation to the contraband was proved, then the statutory presumption, under Sections 35 and 54 of the Act, operates against him, that he was in conscious possession thereof. No evidence, was produced, by the accused, to rebut the statutory presumption. No doubt, the Counsel for the appellant, placed reliance, on Avtar Singh and Criminal Appeal No. 876-SB of 1999 6 others Vs. State of Punjab, 2002, SCC (Crl.), 1769, Raj Kumar Vs. State of Punjab, 2005(1), RCC, 279, and, Kashmir Singh Vs. State, 2006(2), RCR, 477, in support of his contention, that the appellant, was not in conscious possession of the poppy husk. In Avtar Singh's case (supra), it was a truck, wherefrom, the recovery was effected. The Apex Court, held that, the persons, sitting in the body of the truck, at the most, could be said to be labourers and conscious possession of the poppy husk, could not be attributed to them. In Raj Kumar's case (supra), the recovery, was from a truck, and the prosecution failed, to establish the exclusive possession of the accused, and, thus, it was held, that their conscious possession, was not proved. In Kashmir Singh's case (supra), it was held, by a Full Bench of this Court, that with a view, to convict the accused, for the offence, punishable under Section 15 of the Act, it must be proved, that he was in conscious possession of the contraband. It may be stated here that in the instant case, the exclusive possession of the appellant, in relation to the bags, containing poppy husk was proved. As such by virtue of the operation of the statutory presumption under Sections 35 and 54 of the Act, he was in conscious possession of the contraband. The submission of the Counsel for the appellant, being devoid of merit is rejected. 12. It was next submitted by the Counsel for the appellant, that Harnek Singh, independent witness, was joined, but, he was not examined, and given up, as won over by the accused. He further submitted that, as such, an adverse inference, could be drawn, that had Criminal Appeal No. 876-SB of 1999 7 he been examined, he would not have supported the case of the prosecution. There is, no dispute, about the factum, that Harnek 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, vide statement dated 02.08.99. It means that, this witness, was given up, by the Additional Public Prosecutor, for the State, after being satisfied, that he had actually been won over. The Additional 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 Harnek 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 Harnek 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 Harnek 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 Criminal Appeal No. 876-SB of 1999 8 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 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 authorities, is fully applicable to the facts of the present case. Even otherwise, the Criminal Appeal No. 876-SB of 1999 9 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. 13. It was next submitted by the Counsel for the appellant, that the seal after use was not handed over by Varinder Kumar, Station House Officer, the Investigating Officer, and, Kuldip Singh, Deputy Superintendent of Police, to Harnek Singh, independent witness, and, as such, it became all the more necessary, for the prosecution, to examine him, as a witness, with a view to prove the link evidence. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. There is no provision of law, which required the Investigating Officer to hand over the seal, after use, to an independent person, or to another person. The Investigating Officer, cannot be expected to keep a number of seals, with him, as he is to detect the crime, and effect recoveries in a large number of cases. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, later on, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Criminal Appeal No. 876-SB of 1999 10 Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory upon him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the present case. Non-examination of an independent witness, by the prosecution, in view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, regarding the completion of link evidence, did not at all affect the merits of the case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. No other point, was urged, by the Counsel for the parties. 15. In view of the above discussion, it is held that the judgement of conviction, and the order of sentence, rendered by the trial Court, are based on the correct reading and due appreciation of evidence, and, law on the point. The same do not suffer from any illegality and infirmity, warranting the interference of this Court, and, are liable to be upheld. 16. For the reasons recorded above, the appeal, is dismissed. The judgement of conviction and the order of sentence are upheld. If the appellant, is on bail, his bail bonds shall stand cancelled. 17. The concerned Chief Judicial Magistrate, is directed to comply with the judgement, in accordance with law, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Appeal No. 876-SB of 1999 11 Criminal Procedure, and send the compliance report, within a period of two months, from the date of receipt of a copy thereof. 18. 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. 19. 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. 15.03.2010 (SHAM SUNDER) AMODH JUDGE